This article examines the requirements and procedure governing enforcement of judgments from the courts of India in England and Wales. Enforcement of judgments between India and England and Wales is based on reciprocity, ie both countries treat judgments from one another’s courts in the same way.
Judgments from ‘recognised courts’ in India (see below) are enforceable under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA 1933). Those from any other courts in India (ie not recognised courts) must be enforced under the common law rules. Both regimes are discussed below.
Enforcement in England under the Foreign Judgments (Reciprocal Enforcement) Act 1933
Requirements for enforcement in England under the FJA 1933
In order to enforce a judgment from India in England and Wales, the judgment must be given by a ‘recognised court’. The Reciprocal Enforcement of Judgments (India) Order, 1958 provides that a ‘recognised court’ is one of the following:
- the Supreme Court;
- all High Courts and Judicial Commissioners' Courts;
- all district courts; and
- all other courts whose civil jurisdiction is subject to no pecuniary limit, provided that the judgment sought to be registered under the said act is sealed with a seal showing that the jurisdiction of the courts is subject to no pecuniary limit, in specified territories.
The judgment must also be:
- final and conclusive;
- for a sum of money which is not taxes or ‘other charges of a like nature’, fines, or other penalties (meaning that injunctions are not enforceable); and
- given by a recognised court (see above) which had jurisdiction (based on English law principles – ie on a consensual or territorial basis). Essentially this means that:
- the judgment debtor accepted Indian jurisdiction;
- the judgment debtor made an appearance in the proceedings (consensual);
- the judgment debtor resided in India;
- the judgment debtor had its principal place of business in India;
- the transaction which is the subject of the proceedings was carried out through a branch office in India; or
- the proceedings concern land in India (territorial).
The English courts have held that a final order of the Debt Recovery Tribunal in India executed through a certificate of recovery can be registered and enforced in the UK ( State Bank of India v Mallya  EWHC 1084 (Comm)).
Defences to recognition and enforcement in England under the FJA 1933
If the requirements above are met, there are some defences that may potentially be used to resist enforcement:
- the debtor did not receive notice of the proceedings in sufficient time to defend and did not appear in the proceedings;
- the judgment was obtained by fraud;
- a valid appeal against the judgment in India has been lodged and is pending;
- the judgment is contrary to English public policy. This is fairly rare but where it does occur, it can often be because the monetary award given in the judgment is phrased as a ‘penalty’. An example is where the judgment is for multiple damages (ie doubling or trebling the damages). However, if the judgment separates the compensatory element of the award from the ‘penalty’ element, the court may enforce the compensatory damages only;
- the judgment is irreconcilable with another judgment. This exception may apply where a judgment conflicts with a prior English judgment between the same parties, or a prior judgment in a third country in the same cause of action and between the same parties.
Method of enforcement
Where the requirements stipulated by the FJA 1933 are satisfied, the enforcing party will need to:
- register the foreign judgment in England; and
- serve the registration order on the debtor.
Debtors who wish to challenge enforcement should make an application to the court to set aside the registration order without delay and within the time limit set out in the registration order.
Enforcement in England under common law rules
Where the Indian court is not a ‘recognised court’ under the FJA 1933, enforcement of the judgment must be carried out under the common law rules set out below. These rules are similar to those in the FJA 1933.
Requirements of enforcement
For the common law regime to apply, the following must be satisfied:
- the judgment must be final and conclusive (injunctions and interim measures are not enforceable);
- it must be for a debt or definite sum of money (but again not generally for taxes, a fine or other penalty);
- the foreign court must have had jurisdiction on a territorial or consensual basis. See above for examples of what constitutes consensual and territorial.
Defences to enforcement
If the above criteria are satisfied, there are (similar to those under the FJA) several potential defences to enforcement:
- the judgment was obtained by fraud;
- it is contrary to English public policy or the European Convention on Human Rights. For example, some damages awards expressed as a penalty can infringe English public policy and render the judgment unenforceable;
- the judgment is contrary to the rules of natural justice, such as the debtor not having a proper opportunity to defend the claim;
- it is inconsistent with a prior judgment on the same subject matter and between the same parties;
- the judgment is for multiple damages;
- the proceedings were brought contrary to a jurisdiction or arbitration agreement.
Method of enforcement
Where the above conditions are met, the enforcing party will need to:
- issue a new claim in England to enforce the judgment;
- apply for summary judgment to expedite enforcement (provided there are grounds to do so); and
- if relevant, seek permission from the English court to serve proceedings on the debtor (if outside of England and Wales).
If may be possible for the judgment creditor to obtain a freezing order against the debtor’s assets to prevent dissipation of assets before the judgment can be enforced.
While the requirements and defences available under the FJA 1933 and the common law rules are very similar, the procedure for enforcing judgments under the FJA 1933 is much more straightforward and should be followed, unless the Indian court is not a ‘recognised’ court.
This article was co-authored with Laura Stigaite, knowledge paralegal.
You can read the article here