Can't execute foreign court's order if it's inconclusive, not on merits: HC

The Karnataka High Court has declared that an order passed by a foreign court cannot be executed if it is not conclusive and not based on merits.

A single bench of Justice H P Sandesh allowed a civil revision petition filed by the Karnataka State Road Transport Corporation (KSRTC) against the London court's order.

The issue arose out of an execution petition filed by Nigel Roderick Lloyd Harradine and his wife Carol Ann Harradine, residents of Surrey, United Kingdom.

The couple, on a visit to India, met with an accident on March 18, 2002. The car in which they were travelling from Mysuru to Gundlupet was involved in an accident with a KSRTC bus going from Gundlupet to Nanjangud.

As the car was engaged for transportation by UK-based firm Somak Travels Limited, the couple preferred the claim before the Exeter County Court, United Kingdom. The county court awarded costs/damages of around £ 52,000 and this order was affirmed in August 2010.

In 2011, the couple moved the Bengaluru court for execution of the orders passed by the UK court.

In August 2012, an order of attachment was passed and the application filed by the KSRTC was rejected.

On August 17, 2017, the Additional City Civil Judge, Bengaluru, had rejected the application filed by KSRTC, contesting the execution application.

In the appeal, the KSRTC submitted that the judgment and decree passed by the foreign court were without jurisdiction and it has not followed the recognised law of the nation or international law.

It also contended that the decree holders have to make the claim under the Motor Vehicles Act and the Tribunal constituted i.e., before the Accident Claims Tribunal. The claim made before the foreign Court has no jurisdiction to grant compensation and when the accident occurred in India, it is bound by the Motor Vehicles Act, the plea said.

It also claimed that the executing court in Bengaluru erroneously invoked Section 44 of the CPC. It also submitted that even as per Section 44A (1) and (2) of CPC, a certificate should be accompanied with the certified copy of the judgment.

However, the executing court had allowed the execution petition on the basis of the photocopy of the judgment, it said.

After going through the records, the bench said, "No certified copy of the judgment and decree of the Foreign Court is placed before the Trial Court but only a xerox copy of the same is placed before the court and nowhere it is found that claim has been considered on merits except passing the order and even the alleged statement of objections also not considered while passing such an order."

The bench cited the International Woollen Mills case (2001), wherein the Supreme Court had given a specific finding that if an order is passed without considering any evidence and also no evidence is adduced on the plaintiff’s side and suit is decreed merely because of the absence of the defendant, either by way of penalty or in a formal manner, the judgment may not be one based on the merits of the case.

“The trial court, while invoking Section 44A, comes to the conclusion that the same can be enforced in India, but fails to take note of the fact that the judgment of the foreign court is not on merits. No doubt, admittedly, notice was given and the same was served through an advocate and revision petitioner (KSRTC) also claims that they sent the reply and the same is not forthcoming in the order of the foreign court and nothing is discussed in the order even for the objection which has been raised,” the court said.

The bench also pointed out the foreign court has not followed the principles of natural justice as KSRTC's response to the notice was not taken into consideration of by it.

"The judgment of the foreign court is not executable since the same is not on merits and it suffers from its legality and correctness and hence, the revision petition requires to be allowed," the bench said.