Judgement of foreign court not enforceable if not on merits

Mumbai, May 3 (PTI) A judgement passed by a foreign
court cannot be executed in India if it is not based on
merits, the Bombay High Court has held.

The court's observation came in reference to an order
passed by a court in the United Kingdom which had awarded
compensation to a complainant, Percy Mistry, against Bennett,
Coleman and Co Ltd in a defamation case.

Mistry had moved the Queen's Bench devision in UK
alleging that an article published in The Economic Times, a
Bennet Coleman group newspaper, on June 10, 1994, had defamed
him.
The UK court passed an ex-parte order in the case in
1995 awarding Mistry a compensation of 32,500 pounds, when the
defendant failed to appear before it.

By another judgement, Mistry was awarded the cost of
the litigation, too, thus taking the total damages awarded to
him to 98,539 pounds.

Mistry then moved the Bombay High Court for execution
of the decree passed by the UK court. Bennett Coleman,
however, opposed it, saying that it was passed when one of the
parties was not present.

Justice D Y Chandrachud, in the judgement passed last
week, held that Mistry could not execute the foreign court's
order in India, because the order came to be passed "in
default of appearance."

The UK laws provide that if defendant is absent in
libel cases, plaintiff is awarded damages by default without
presenting an evidence.

Justice Chandrachud observed that no evidence was
submitted to the UK court and the judgement did not discuss
merits of the case.

"There is no finding of the trial court to the effect
that article was ex-facie defamatory," Justice Chandrachud
observed, holding that in such a case, order of UK court can
not be executed in India. PTI