IT IS ORDERED that the Plaintiff be at liberty to serve the Summons in this action on the Defendant at 31, Industrial Area-A, Ludhiana- 14100 P 3, Punjab, India, or elsewhere in India, and that the time for acknowle . dging service shall be 23 days after service of the Summons on the De H fendant."
This shows that leave to serve the Appellant was granted afte r reading the affi- davit. Thus at this stage the Court had presumably seen t f he documents annexed thereto. The Court has been careful enough to n o ote that it had read the affida-vit. However, at this stage, only a prima facie opinion was being formed. The- reafter the said Mr. Kaashif Basit, S r olicit t or fo r the Respondent had filed an af-fidavit of service stating that service had been effected on one Yash Paul, who is claimed to be an employee u of the Appellant. To this Affidavit also all relevant documents were annexed. Thereafter no documents are tendered nor any evi-dence led. The Engli o sh Court then pronounces the judgment and decree, which has been set out herein above. It does not even say that the second Affidavit had been read. T C his Judgment and decree does not indicate whether any documents were loo ked into and/or whether the merits of the case was at all considered. It merely grants to the Respondent a decree for the amounts mentioned therein. h To be noted that the Appellant had, by his letter dated 8th November, 1997, g replied to the Notice of the Respondent dated 18th October, 1997. In this reply i
it had been mentioned that goods were of inferior quality and not as per con-tract. Court has not applied its mind or dealt with this aspect. It has not ex- H
amined points at controversy between the parties. It is given ex-parte as Appel- lant did not appear at hearing of Suit. It is not a judgment on merits." 4(iii)(b) The argument of learned counsel for the J.D. does not hold much substance. This is for the following reasons :-
a. The case of the respondent-DH was that :- The D.H. had opened
an online account with a Trading Firm of Dubai ; He made some profit ;
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The D.H. was introduced to the J.D. who offered to trade on DH's account and assured to make good profit every month. Believing the J.D., the D.H. handed over the account to him. The J.D., however, incurred huge loss ; The J.D. assured the D.H. of profit and requested him to deposit some more .
money in the account. Acting on the assurances of the J.D., the D.H. . aft P er arranging money, gave 50,000 USD to the J.D. In lieu thereof, the J.D. issued two post dated cheques valuing approximately Rs. 6 1. H 5 lacs. Later on, the cheques were taken back and the J.D. issu o ed fre f sh cheques valuing Rs. 62.5 lacs. The D.H. presented these cheques to his bankers at Dubai. The same were dishonoured. He filed crim t inal case against the J.D. before
the Court of competent jurisdiction r in Dubai. Vide judgment dated
November, 2020, the J.D. was u ordered to be jailed for 3 months. In
November, 2020, the D.H o . filed the civil suit for recovery of the cheque
amount which w as C decreed on 10.04.2021. b. The English translation of the certified copy of the judgment and decree s h hows that the judgment was passed on consideration of the
idog cuments presented by the plaintiff-DH. The table of dates and particulars extracted earlier lends credence to this fact. Merely because the J.D. was
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proceeded ex-parte, cannot lead to an automatic interference that the foreign judgment had not been passed on merits. The decision in International Woollen Mills case (supra) is distinguishable on facts. The English translation of foreign judgment shows
that in the instant case, the D.H. had made efforts to serve the J.D. through
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the process of Court. The allegation of violation of principles of natural justice remains a bald and unsubstantiated allegation. The J.D. could not be served. He was served by way of publication through process of Court. The D.H. in his suit for recovery of the amount, had placed on record the .
evidence, i.e. the cheques in question and their dishonour by the . ban P k concerned. His claim was under the provisions of Article 338 of the Civil Transaction Law of the Country in question. On consid f erat ion H of his case, the documents presented and the evidence, the judgment was passed. It cannot be said that such a decision was not on m o erits of the matter. The
Apex Court has held in International Wooll t en c ase (supra) that it cannot be
said that a decision on merits is possib r le only in cases where the defendant
enters appearance and contests u the plaintiff's claim. Even where the
defendant chooses to rem o ain ex-parte and keeps out, it is possible for the
plaintiff to add uce C evidence in support of his claim(and such evidence is generally insisted on by the courts in India), so that the court may give a decision h on the merits of his case after a due consideration of such evidence
iinsg tead of dispensing with such consideration and giving a decree merely on account of the default of appearance of the defendant. In this case, though
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the JD-petitioner chose not to appear before the Court, the decision so pronounced by the Court has to be considered as rendered on merits as the documents presented by the DH-plaintiff were considered by the concerned Court leading to passing of the judgment and decree.
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4(iv) The third contention of the learned counsel for the petitioner is that the execution petition was not filed in accordance with provisions of Civil Procedure Code. For deciding this, it would be profitable to refer to Section 14 of the Civil Procedure Code :- .
"14. Presumption as to foreign judgments.-The Court shall presume upo . n tPhe production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but sucHh presumption
may be displaced by proving want of jurisdiction." f
In (2017) 2 SCC 253 Alcon Electron o ics Private Limited Vs. Celem S.A. OF FOS 34320 Roujan, t Fra nce and another, Hon'ble Apex Court held that a foreign ju r dgment which has become final & conclusive between the partie u s is not impeachable either on facts or law except on limited gro o unds enunciated under Section 13 CPC. Under Section 14 CP C C, there is a presumption that the Foreign Court which passed the o rder is a Court of competent jurisdiction which of course is a reb h uttable presumption. The Apex Court in para 13 of the judgment,
ig held as under :- H
"13. It appears that the appellant herein has accepted the order and sought for time to pay the costs. Moreover, it did not choose to approach the appellate Court assailing the order and the same has attained finality. In spite of the same, the appellant filed the application opposing the execution petition filed by the respondents. The first and foremost ground of attack against the order passed by the English Court is that the order is not conclusive as per Section 13(b), CPC. Such argument appears to be
attractive but we are not able to appreciate the same in the facts and
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circumstances of the case. Before we proceed further, it is appropriate to have a look at Sections 13 and 14 of CPC which read as under:
"…………………………………………..."
14. A plain reading of Section 13, CPC would show that to be conclusive .
an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper an P d necessary parties to put forth their case. When once these requiremen . ts are fulfilled, the executing Court cannot enquire into the validi ty, H legality or oth-erwise of the judgment.
15. A glance on the enforcement of the for o eign jud f gment, the position at common law is very clear that a foreign j udgment which has become final and conclusive between the parties is not impeachable either on facts or law except on limited grounds enunciated under Section 13, CPC. In construing Section 13, CPC we have to look r at thte plain meaning of the words and ex-pressions used therein and need not look at any other factors. Further, under
Section 14, CPC there is a presumption that the Foreign Court which passed
the order is a Cour o t of comupetent jurisdiction which of course is a rebuttable presumption. In the present case, the appellant does not dispute the jurisdic-tion of the English Court but its grievance is, it is not executable on other groun ds w C hich are canvassed before us. h 16. The appellant contends that the order of the English Court is not giv-en on merits and that it falls under Section 13(c) of the CPC as a result of
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which it is not conclusive and therefore inexecutable. We cannot accept such submission. A judgment can be considered as a judgment passed on merits when the Court deciding the case gives opportunity to the parties to the case
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to put forth their case and after considering the rival submissions, gives its decision in the form of an order or judgment, it is certainly an order on me- rits of the case in the context of interpretation of Section 13(c) of the CPC. 17. Applying the same analogy to the facts of the case on hand, we have no hesitation to hold that the order passed by the English Court is an order
on merits. The appellant who has submitted itself to the jurisdiction of the
Court and on its own requested the Court to assess the costs summarily.
While passing a reasoned order by dismissing the application filed by the ap-
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pellant, English Court granted the costs against the appellant. Had it been the case where appellant's application was allowed and costs were awarded to it, it would have as well filed a petition for the execution of the order. Be that as it is, the appellant did not prefer any appeal and indeed sought time to pay the costs. The appellant, therefore, cannot be permitted to object the ex- ecution. It cannot be permitted to blow hot and cold at the same time. In our .
opinion, it is a pure abuse of process of law and the Courts should be very cautious in entertaining such petitions." .P
In the instant case, the J.D. has not led any evidence H whatsoever in the execution petition to rebut the presumptio f n a vailable under Section 14 CPC to the document propounded by the decree holder as certified copy of the foreign judgment pa sseod by a competent Dubai Court. It is the J.D.-petitioner w r ho t has disputed the executability, validity of the foreign judgm u ent sought to be executed by the D.H. It is the J.D. who is disputing even the authenticity of the certified copy of
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provides that "the law of any foreign country regarding promissory notes, bills of exchange and cheques shall be presumed to be the same as that of India, unless and until the contrary is proved". The procedure being applied by the Foreign Court was similar to the procedure .
provided under Order 37 CPC. Nothing has been produced on recor . d b P y the J.D. to prove contrary. In fact, the judgment debtor/petiti H oner has not even specifically disputed either the issuance of cheques in question or their dishonor by the bank on presentation b o y the f respondent-decree holder.
5. The upshot of above discussion i t s that, the J.D.-petitioner has not substantiated his contentions (objecrtions) that the foreign judgment and decree in question, of whic u h the execution has been sought by the respondent-DH, was no o t rendered on merits of the case or that principles of natural j usti C ce were violated during the proceedings in the foreign Court h . The petitioner could also not dispel the presumption attached to g the foreign judgment under Section 14 CPC. i
For all the reasons discussed in para 4 above, the impugned order
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dated 24.04.2023 passed by the learned Trial Court cannot be said to be suffering from any illegality or material irregularity. This petition is accordingly dismissed alongwith the pending applications, if any. 15thDecember, 2023(K) Jyotsna Rewal Dua
Judge