LegalCrystal – Blog

TAGS: FOREIGN JUDGMENTS /  judgment is given on merit / Exparte decree of the foreign Court  /  challenged by a stranger / Foreign divorce decree / Grant of Probate by Foreign Court/ Grant of Probate by Foreign Court / custody of child / recovery by a Foreign Court / decree passed in a summary procedure/

EXECUTION OF FOREIGN DECREE/

CONCLUSIVENESS OF FOREIGN JUDGMENTS IN INDIA

[Section 13 Civil Procedure Code]

ACCEPTANCE OF FOREIGN JUDGMENTS:

Acceptance of foreign judgement when not contradictory to principle of law laid down by Indian legislature. If such foreign judgement is contrary to Indian law it will not be acceptable – for detailed information kindly visit refer: AIR 2003 Cal.105 Murari Ganguly and others Vs.Kanailal Garai and others.

CONCLUSIVENESS OF FOREIGN JUDGMENTS:

Exparte decree of the foreign Court cannot be presumed to be on merit by the aid of Section 114(e) of Evidence Act.  Where ex parte judgment passed granting decree for money but nothing indicated whether any documents were looked into or whether merits of the case considered. Such judgements, will not be enforceable in India.

For more details kindly visit:

The Indian Law Search Engine: www.legalcrystal.com- M/s International Woollen Mills Vs.M/s Standard Wool(U.K.) Ltd.  AIR 2001 SC 2134 – 2001(5)SCC 265 – 2001 (3) Rec Civ R 158 – 2002 (1) Mad LW 28 – 2001(2) LR 1765 – 2001(20 Cur CC 148 – 2001 (2) Civil Court C 448 – 2001 (44) All LR 354 – 2001 (3) All Mah LR 554

Where a judgment is given on merit by a foreign Court, taking into consideration, Indian law, covering same ground as covered by the English Law under which the decree was granted, the conclusiveness of the decree, will not b e open to challenge. Mrs.Anoop Beniwal Vs. Dr.Jagbir Singh Beniwal:AIR 1990 Del.305

Where the judgment was not on merit and the judgment was given ex parte only on the basis of pleadings and documents of the plaintiff – Defence filed before Hongkong Court not taken into consideration – Held the judgment being not on merit did not have force of law- For execution of such decree prior permission of Central Govt. was necessary.  AIR 1990 Bom.170 –Algemene Bank Nederland  NV Vs. Satish Dayalal Choksi.

FOREIGN COURT DECREE:

Decree passed by foreign Court cannot be challenged by a stranger to the proceedings unless it is proved that he had any preexisting rights and interest, which affected the decree adversely.  Any subsequent event cannot clothe such a stranger with a right to challenge such a decree.  [Deva Prasad Reddy Vs. Kamini Reddy and another, AIR 2202 Kant. 356 – 2002 (4) Rec. Civ R 758 – 2003 (1) Marri LJ 252 – 2002 (3) ICC 657 – 2002 (2) DMC 482 – 2002 (4) Civ LJ 295]

FOREIGN DIVORCE DECREE:

Foreign divorce decree where husband and wife were Hindus and governed by Hindu Marriage Act. When suit for judicial separation and maintenance was pending in Indian Court, husband obtained decree of divorce from the Court in USA though wife did not submit to the jurisdiction of USA, held, such decree obtained by husband was not enforceable in India [AIR 2003 Del. 175 – Smt.Anubha Vs. Vikas Aggarwal and Others]

GRANT OF PROBATE BY FOREIGN COURT :

Grant of Probate by Foreign Court supplemented by ancillary probate under Section 228 of Indian Succession Act – Decision of the probate Court will be binding without approaching the Civil Court – Such judgment will operate judgment in term and cannot be challenged in the Civil Court [ AIR 1992 Mad. 136 – 1991 (2) LW 487 – Alagammai and others Vs. V. Rakkammal]

Decree of Divorce passed by a Foreign Court-  Grounds mentioned under Section 13 Clauses (a) to (f) not satisfied – Neither was there any proof to bring the case within the ambit of said clauses of Section 13 C.P.C. – Held, the decree passed by the foreign Court will be binding on the parties – The law contained in Sections 13 and 14 C.P.C. which is not merely rules of procedure but rules of substantive law recognizing conclusiveness of a foreign judgment – In such circumstances the foreign decree will be binding on the parties –[AIR 1991 Ori 263 :Dr.Padmini Mishra Vs. Dr. Ramesh Chandra Mishra ] 1990 70 Cut. LT 673.

FOREIGN JUDGMENT – Application for recognition of foreign judgment filed which could be refused if it is found contrary to the public policy of the country where such judgment is sought to be invoked according to law of the said country.  In the field of Private International Law courts refused to apply rule of foreign arbitral award if it is found that the same was contrary to public policy. [AIR 1994 SC 860 Renusagar Power Company Ltd., Vs. General Electric Co.] 1994(1) SCC Supp 644.

CUSTODY OF MINOR CHILD:

Where by judgment of a foreign court, custody of child was given to mother who was foreign national – In the absence of any exceptions under Section 14 and 14, the judgement of foreign court, will be binding on the parties.  In view of the said order of the foreign judgment, the mother will be entitled to custody of the child[AIR 1994 P & H 309 Mrs.Jacquiline Kapoor Vs. Surinder Pal Kapoor] 1994(3) Pun LR 544.

Order of Supreme Court of Ontario (Canada) granting interim custody of the child with the mother – However father removed the child without authorization, in India- Held order of the Ontario Court was fully valid and given effect to – Mere allegation that the mother was living in adultery, will be of no consequence.[AIR P & H 103 Mrs.Kuldeep Sidhu Vs. Chanan Singh and others]

RECOVERY OF DEBTS DUE TO BANK AND FINANCIAL INSTITUTIONS ACT 1993

Where Decree was passed for recovery by a Foreign Court, the Tribunal under the said Act can start execution proceedings related to the said foreign judgment.  In this regard provision of Section 44-A will not prevail over Section 17 of 1993 Act [Bank of India Vs.Harshadrai Odhavji AIR 2002 Bom. 449 : 2002(3) Mah LR 735 : 2002 (3) Bank Cas 182 : 2002 (4) Cur CC 5 : 2002 (5) Bom CR 228.

EXECUTION OF FOREIGN DECREE

Decree of foreign Court – Execution of such decree, will be barred when it is found that decree was not on merit – where the decree was passed ex parte, only on the pleadings of plaintiff without evidence, such decree is not executable.[Gurdas Mann and others Vs. Mohinder Singh Brar. AIR 1993 P & H 92 : 1993(1) Pun LR 518 : 1993 HRR 222]

Where ex parte decree passed in a summary procedure under Rule 14 of Rules of Supreme Court of England – It was found that plaintiff evidence was not considered and defendant had filed no defence – Therefore, such foreign judgment was not executable in India [ Middle East Bank Ltd. Vs. Rajendra Singh Sethia AIR 1991 Cal. 335]

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TAGS: BAN ON LIQUOR / Restriction in respect of location of liquor shops / from hospitals / educational institutions / temples etc.

My below blog post is based on the request from Mr.Sharath M who is one of our regular visitors

Chat Conversation :

Sharath: hi..

me : sorry was away from keyboard

Sharath: wanted to gather some info… see.. there is a law which says tat u cant have a liqour vendor some 500mts from where a school or college is located… now suppose.. there is already a liqour shop and someone wants to open a school.. does the same rule apply? if so.. who has to relocate.. the liqour owner or the school… was wondering if u could get this clarified wit ur mom… me and a friend had this debate while coming back today

me:  hmmm… will forward your query to advocates

i will forward the chat conversation now, she might reply today eve

Sharath: cool.. no prob..

me: good question, guess a blogpost on this wud help

Sharath: definitely… if u can quote specific law article links..it will be great

me: yup

Dear Readers,

I would like to take this opportunity to enlighten many more readers like Mr.Sharath, Hence I have given a few practical and real examples of such situation, quoted excerpts from various judgments of High Court and Supreme Court where such questions are dealt appropriately. Hope it will be of much help for a person to understand the point involved.  I eagerly await your feedback.

WHAT DOES THE CONSTITUTION SAY?

It is relevant here to know Article 47- of Constitution of India-the Duty of the State: [ Based on which rules are framed and interpreted by the legislature and the judiciary to achieve the intention of our constitution]

Article 47.of Constitution of India : Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

This is before the Hon’ble Judges Rajendra Babu and Somashekara JJ High Court of Karnataka at Bangalore – excerpts from  judgment :

Karnataka Excise Licences (General Conditions) Rules – Rule 5;

5. Restriction in respect of location of shops:-

(1) No licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 100 metres from any religious or educational institutions or Hospital or any office of the State Government or Central Government or Local authorities ,or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 Metres from the middle of the State Highways or National Highways.

Excerpts:

It is urged that the restriction of locating a shop or premises where trade in liquor can be carried on within a distance of 100 metres from any religious or educational institution or residential locality inhabited predominantly by Scheduled Castes and Scheduled Tribes, is also an unreasonable restriction; that in many cases, the hospitals or educational institutions or religious institutions or office of the State or Central Government or local authority may come up in an area subsequent to the grant o f licence and thereafter if a person is asked to shift the premises, it will cause grave hardship and therefore the rule is arbitrary; that in some Towns or Cities there are innumerable religious places almost in every nook and corner and it is impossible to locate a liquor shop in compliance with the relevant rule; that in fact in some towns liquor shops are located in violation of the said Rule.

No one can deny that in places where people congregate either for religious purpose or for purpose of education or visit offices, those places must be made safe and near such places there cannot be an activity in relation to sale or purchase of liquor…. In cases where there are liquor shops located already and religious institutions, educational institutions and offices have come up later or whether the Rule cannot be worked out for any City crowded with such institutions, are all matters to be considered by the concerned Authority in individual
cases and due action taken, but these circumstances cannot invalidate the Rule in any manner.[KARHC -2/3/1994] Karnataka Wine Merchants Association vs. State of Karnataka (02.03.1994 – KARHC)

few more interesting excerpts from judgments:

5. The following principles shall be observed in determining the location and the sites for shops/sub-shops:

(a) ‘Shop’ means a retail shop for vend of country liquor, foreign liquor and bhang.

Rule 5 of the U.P. Excise Rules deals with the location of a shop and the principle which has to be observed while issuing license to a shop. From a plain reading of Sub-rule (4) it is clear that no shop or sub-shop for vending of country liquor, foreign liquor and bhang shall be opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. In case of any violation of the said Rule, if objections are received from affected persons, the same shall receive full consideration. Therefore if any shop is opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony then the residents of that area has a right to protest and the decision has to be taken by the Excise Commissioner,. Unfortunately, the tendency of the State is to ignore the Rules in order to augment the revenue of the State and the State indiscriminately opens shops making the life of the residents of the area miserable. In fact the present public interest petition before the High Court was a result of the failure of the State Machinery to take necessary steps in the matter. If the Excise Commissioner has taken proper care while issuing licenses to the liquor vendors and considered the objections of the residents of the area, perhaps there would not have been any necessity of filing the public interest litigation before the High Court.

7. Be that as it may, it appears that proper care was not taken while opening shops in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony and that is how Sub-Rule (4) of Rule 5 came up for interpretation before the High Court. The High Court has after taking into consideration the overall view of the matter opined that 100 meters or 300 ft. (approx.) would be a just measure where the shop should not be opened in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. We fully agree with the view taken by the High Court and we are also of the view that 100 meters or 300 ft.(approx.) should be the right criteria were the Excise Commissioner shall not Page 1132 give any licence to a shop under the Excise Act. We hope and trust that the Excise Commissioner of the State shall take into consideration Sub-rule (4) of Rule 5 of the U.P. Excise Rules and see that no shops or sub-shops are opened within radius of 100 meters or 300 ft. (approx.) of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. The interpretation of the word ‘close proximity’ was vague therefore it was misused by the authorities, But, now the matter has been placed beyond any vagueness. Therefore, with the interpretation of the expression ‘close proximity’ by the High Court, the matter has been put in the right perspective and the doubt has been cleared. Therefore, taking into consideration all the facts and circumstances of the case, we affirm the view taken by the High Court insofar as fixing the distance of 100 meters or 300 ft. (approx.) from a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony where no shop or sub-shop shall be opened under the U.P. Excise Act and Rules framed thereunder.[ State of U.P. and Ors. vs. Manoj Kumar Dwivedi and Ors. (25.02.2008 - SC)Judge : A.K. Mathur and Aftab Alam, JJ.]

Other useful and interesting Links:

http://www.abc.net.au/news/stories/2009/06/16/2599174.htm

http://www.usnews.com/articles/news/national/2008/07/08/easing-up-on-sunday-liquor-

http://encyclopedia.stateuniversity.com/pages/17897/Prohibition.htmlsales.html

*Special thanks to Mr.Sharath M.

Its 10.30 a.m.  ‘OPEN COURT HALL’! Judge arrived, the bench clerk started calling out all the cases listed one by one.

In the first court, cases that were represented got favorable orders in some cases and ideal adjourned dates for the rest.

In the second court, there were some urgent evidence matters to be lead, in which the party had to be present without fail. Even when the case was called for second and third time the party did not turn up for which the Advocate had to face the ‘Jury Fury’.

In the third court,  some compromise had to be reported in Landlord-tenant case.  Petition kept ready , Landlord ready to receive the key from the tenant as per the terms of petition, already the advocate for the tenant had taken 3-4 adjournments,   the tenant who had to be present  did not turn up without any intimation, again the advocate subject to ‘Jury Fury’

In the fourth Court-It was one Motor Accident Claim case where the Advocate had to defend his client (owner of vehicle) who had to pay huge amount of compensation to a House Wife who suffered severe damage to her waist bone in the Accident.  Its not a cake walk to save the client in such a blatant situation, at the same time some justification had to be made. In such cases it is common the advocate will have to face the ‘jury fury’ and beg for some concession.

In the fifth court : The judge was of a very critical bent of mind – The Advocate had to obtain an urgent injunction order to save his client a businessman whose business was at peril without obtaining an order of injunction immediately to run his day to day business.  With great difficulty and prolonged arguments, convincing the Court, the ‘jury-fury’,  the advocate could get an order of injunction to restrain the opposite party.

In the sixth Court, a Labour/Service matter, the candidate was rejected by the selection committee because he had not carried the original certificates to produce before the committee as he had to obtain it from his far off native place.  And by the time he could produce it selections were over and he was rejected on the ground of non production of originals.  In this case the court ‘jury-fury’ did not believe the reasons sworn in the affidavit of the candidate.  It was a Herculean task to convince the Court that the reasons were honest and bonafide.

In the seventh Court, it was about admissibility of the insufficiently stamped document in evidence by the lower court.  The ‘jury-fury’ was in two minds to order the fine amount to be paid to the Collector or to hold the document as inadmissible in evidence. Advocate wanted further time to convince the court, the Advocate was subject to jury-fury and entitled for a day’s time.

In the eighth court, it was about claiming the schedule property exactly but mentioning the wrong boundaries intentionally.  It was a big task to convince the court with all the documentary evidence available and get the second appeal allowed.

In the ninth Court, it was the owner’s appeal in an accident claim case. As Claim was not covered by a valid insurance, the owner wanted some concession in the exorbitant compensation awarded by the lower court. But unfortunately in the lower court he had just filed the vakalath, objection not filed, no evidence lead, nothing! But he produced a copy of the order passed in the connected (with the accident) criminal case acquitting him. The Advocate tried to convince the court about the ignorance and the ill health in not filing the objection and evidence, inspite of it,  ‘jury-fury’ dismissed the appeal.

In the tenth court, it was a writ filed by the poor agriculturist whose land was acquired by the Airport authority who,  not believing that his saguvali chit and that was in possession and cultivating the land since 1960 paid no compensation to him.   As he belonged to a backward community, poor and illiterate, he was made to run pillar to post from Tahsildar to successive A/C D/C/ Courts with no avail. The jury-fury made an order giving direction to the lower authorities to make fresh disposal after considering the document produced by the party and directing the Airport authority to await the order of the authority.

I do agree “ Its All in a Days Work” for the JURY-FURY – Varieties of Advocates, Parties, peculiar Situations/Circumstances that are challenging ,  each minute with the listed cases called for the day.

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The Advocates who read my above article are free to share their court experiences too.  If so, email your court experience to: rekha@legalcrystal.com

There is difference between seizing of a document and impounding a document.  A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession.  Thus seizure is done at a particular moment of time.  However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. [Date of Decision 24/01/2008 Suresh Nanda V/s C.B.I. ]2008AIR SCW 898].- to see detailed judgment kindly visit www.legalcrystal.com]

AN USEFUL LEGAL TIP FOR ALL:

BE CAREFUL- [BE TRUTHFUL] !YOUR ORAL EVIDENCE  COUNTS TILL THE END!

ORAL EVIDENCE YOU ADDUCE IN A WITNESS BOX AND THE DOCUMENTS YOU PRODUCE IN A COURT OF LAW IS VERY VERY IMPORTANT-  IT PLAYS A VITAL ROLE IN DECIDING YOUR CASE THROUGH OUT.  EVEN IF YOU GO ON AN APPEAL FURTHER, YOUR ORAL EVIDENCE ADDUCED IN THE LOWER COURT HOLDS GOOD TILL THE END.

Dear Readers,

In my opinion many of the cases fail because of bad oral evidence lead by the party and for non production of proper documentary evidence.  So I urge through this medium that parties should be thoroughly sensitized before they enter the witness box in a Court of Law.  Many a time I have observed in the Courts,  people whether they are literate/illiterate, urbanite or a rural folk they adduce evidence so casually without realizing the consequence or the impact that word will have on their case.  They behave so causally!  Only few people will have a focused mind set and such people narrate the facts properly.  We see another set of people who are otherwise worldly wise and in the Lawyers chambers they act very smart and they understand the impact of the points to be adduced but when they stand before a judge in the witness box they instead of revealing the exact truth and fact , I don’t know out of servile attitude or because lack of knowledge of court room and the impact of their behavior and conduct that will have on their case – when a question is put by an advocate or by the court, instead of revealing the truth they say something else.  Such people I feel instead of losing the case, better to give a Power of Attorney to a relative or friend who will have balance of mind and thought and who is capable of adducing proper evidence to support the case properly.