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K.N. Guruswami and ors. Vs. Muhammad Khan Sahib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad112; 140Ind.Cas.588; (1932)63MLJ761
AppellantK.N. Guruswami and ors.
RespondentMuhammad Khan Sahib
Cases ReferredGurdyal Singh v. Raja of Faridkote and Nalla Karuppa Settiar
Excerpt:
- - 8. these authorities very clearly show that the appellants' contention cannot prevail and this appeal must be dismissed with costs......it is settled law, that the british courts will not recognise the judgments of the courts of a foreign country passed in an action in personam against a british subject, not resident in that country at the date of the action, who has neither appeared in the suit nor submitted to the jurisdiction of the foreign court.3. but, mr. somayya, the appellants' learned counsel, asks us to assume certain facts and, for the purpose of this judgment, those facts may be assumed. mr. somayya's complaint is, that the lower court has not given him an opportunity of proving those facts; but, in the view we take, even assuming that the facts alleged are true, the learned counsel's contention cannot prevail.4. the facts alleged by him are these: the three defendants were a firm of partners carrying on.....
Judgment:

Venkatasubba Rao, J.

1. This appeal raises a question as to the effect of an ex parte judgment passed by a foreign Court against an absent foreigner. The facts may be briefly stated. The appellants are subjects of the Mysore State and they filed a suit in the District Court of Bangalore against three defendants, the last of whom is the respondent before us. The suit was based upon a promissory note alleged to have been executed by them and also upon a contract, which they were stated to have entered into. The 3rd defendant (the respondent) was a British subject and was residing at the time of the suit in the District of Coimbatore, where (the appellants allege, though this fact is denied) he was served with the summons in the suit. He, however, did not appear, but a judgment was passed by the Bangalore Court against him also. This foreign decree, the appellants sought to execute in the Lower Court, but the learned Judge refused their application under Section 13 of the Civil Procedure Code, holding that it was passed without jurisdiction. The appellants question in this appeal the correctness of the order made.

2. It is settled law, that the British Courts will not recognise the judgments of the Courts of a foreign country passed in an action in personam against a British subject, not resident in that country at the date of the action, who has neither appeared in the suit nor submitted to the jurisdiction of the foreign Court.

3. But, Mr. Somayya, the appellants' learned Counsel, asks us to assume certain facts and, for the purpose of this judgment, those facts may be assumed. Mr. Somayya's complaint is, that the Lower Court has not given him an opportunity of proving those facts; but, in the view we take, even assuming that the facts alleged are true, the learned Counsel's contention cannot prevail.

4. The facts alleged by him are these: the three defendants were a firm of partners carrying on business within the State of Mysore, that the partnership was subsisting on the date of the action and that the suit related to certain dealings with that firm. On these facts, it is contended, that the 3rd defendant must be deemed to have submitted to the jurisdiction of the Bangalore Court.

5. The question to decide is, can the inference be drawn from the facts alleged, that the 3rd defendant agreed to submit to the jurisdiction of the foreign Court? In Nalla Karuppa Settiar v. Mahomed Iburam Saheb I.L.R. (1896) 20 Mad. 112 : 7 M.L.J. 76 a somewhat similar contention was raised. The argument there was twofold; that the defendant, by carrying on business through his partners at Kandy, should first be regarded as constructively resident there, and secondly, as having impliedly bound himself to submit to the jurisdiction of the Court under the protection of which his business was being carried on. The second contention shows that the dealings to which the suit related were not with the defendant individually, but with the partnership of which he was a member. But a later case, to which I shall presently refer, puts it beyond doubt that this makes no difference. The contentions were overruled and it was held that the Court at Kandy had no jurisdiction over the defendant. The point now raised has been more fully considered by the Court of Appeal in England in Emanuel v. Symon (1908) 1 K.B. 302. There it was argued, that by the fact of entering into a partnership in a foreign country, the defendant bound himself to submit to the jurisdiction of the Courts of that country, in regard to matters arising in connection with that partnership. The Court negatived that argument and explained the case of Copin v. Adamson (1874) L.R. 9 Exch. 345. Lord Alverstone, C. J., thus observes:

The judgment in that case went in favour of the plaintiff because the defendant had expressly agreed to submit to the jurisdiction of the foreign Court. And in the Court of Appeal the judgment of Lord Cairns proceeded on that footing, and he refrained from deciding the question whether the mere fact of becoming a shareholder in a French company conferred jurisdiction upon the Courts of France.

6. Kennedy, L.J., points out that the effect of the decision of the Judicial Committee in Sirdar Gurdyal Singh v. The Rajah of Faridkote (1894) A.C. 670 is, that the mere fact that a person enters into a contract in a foreign country, does not lead to the inference that he agrees to be bound by the decisions of the Courts of that country. Having said so, he goes on to say that, in this respect, there is no distinction bei.ween entering into an ordinary contract and contract of. partnership.

7. 'It is contended,' says Kennedy, L.J., 'that there may be some difference between a contract to be fulfilled for the immediate benefit of the promisee, e.g., a contract for the sale of goods, and the contract contained in articles of partnership; but I can see no true line of distinction between the two cases.' In the opinion of Kennedy, L.J., also, Copin v. Adamson (1874) L.R. 9 Exch. 345 is not an authority for the proposition that a person, by the mere fact of becoming a shareholder in a foreign company, agrees to be bound by the decision of the foreign Court.

8. These authorities very clearly show that the appellants' contention cannot prevail and this appeal must be dismissed with costs.

Reilly, J.

9. I agree. In my opinion the matter is concluded by Gurdyal Singh v. Raja of Faridkote and Nalla Karuppa Settiar v. Mahomed Iburam Saheb I.L.R. (1896) 20 Mad. 112 : 7 M.L.J. 76.


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