Case Note & Summary
The dispute arose from a bunker supply transaction involving the vessel PFS NARAYANA. Dan Bunkering Limited, a Danish company, supplied bunkers to the vessel in July 2008 at Goa and Cape Town on the order of the time charterer, Britannia Bulk PLC. Britannia Bulk PLC subsequently became insolvent, and the plaintiff did not receive payment. After exchanges, the plaintiff and the defendant, PFS Shipping India Limited (the vessel's owner), entered into a Settlement Agreement dated 30th November 2008 outlining a payment schedule. The defendant failed to pay, leading the plaintiff to arrest the vessel in Amsterdam in January 2009. The vessel was released after the defendant's P&I Club provided a guarantee of US$ 1.6 million. The defendant filed a suit in the Maritime and Commercial Court, Copenhagen, seeking to set aside the Settlement Agreement under Sections 29 or 36 of the Danish Contract Act. The plaintiff filed a counterclaim for the amounts due. On 30th June 2010, the Danish court dismissed the defendant's application and directed the defendant to pay US$ 1,221,681.79 with statutory interest from 19th January 2009 and DKK 400,000 in legal costs. The defendant appealed to the Supreme Court of Denmark, which on 28th November 2012 upheld the lower court's decision and awarded further costs of DKK 200,000, ordering payment within 14 days. The plaintiff invoked the P&I Club guarantee and recovered US$ 1.6 million, leaving a balance of US$ 163,089.65. Since Denmark is not a reciprocating territory under Section 44A of the Code of Civil Procedure, 1908, the plaintiff filed the present suit in the Bombay High Court seeking a decree for the balance amount with interest. The legal issue was whether the Danish Supreme Court judgment is conclusive under Section 13 CPC and enforceable in India. The defendant's written statement raised defenses including lack of jurisdiction, non-joinder of the liquidator, duress, violation of Indian Contract Act, and public policy. The plaintiff argued the foreign judgment was final, on merits, and passed by a competent court after due process, and no Section 13 exception applied. The court framed issues accordingly. The plaintiff examined a witness from Denmark and submitted the two Danish judgments as evidence. The defendant, though initially represented, returned the brief and did not participate in evidence recording or cross-examination. Consequently, the plaintiff's evidence remained unchallenged. The court analyzed Sections 13 and 14 CPC, noting that a foreign judgment is conclusive unless one of the exceptions is proved. The defendant failed to produce any evidence to substantiate its pleas. Citing Alcon Electronics (P) Ltd. v. Celem S.A. of France, the court emphasized that mere averments are insufficient and that due judicial process was followed in Denmark. The court held the Danish judgment conclusive, directed the defendant to pay US$ 163,089.65 with pre-suit interest of US$ 20,693.36, and pendente lite and future interest at 12% per annum on the principal from the date of suit until realization, with costs.
Headnote
A) Civil Procedure – Foreign Judgment – Conclusiveness – Section 13, Code of Civil Procedure, 1908 – The court examined whether the Danish judgment was conclusive. Held that defendant did not produce any evidence to show it fell within any of the exceptions under Section 13; mere averments in written statement insufficient. The foreign judgment was given on merits, by competent court, and no violation of natural justice or Indian law was proved. (Paras 8-11) B) Civil Procedure – Enforcement of Foreign Judgment – Non-Reciprocating Territory – Section 13 and Section 44A, Code of Civil Procedure, 1908 – Denmark not being a reciprocating territory under Section 44A, the enforcement is not through execution but by filing a suit on the foreign judgment. The foreign judgment must pass the test under Section 13 to be conclusive. On satisfaction, a decree can be passed on the basis of such foreign judgment. (Para 5) C) Civil Procedure – Evidence – Burden of Proof – Section 13 and Section 14, Code of Civil Procedure, 1908 – The defendant having alleged that the foreign judgment was obtained under duress and opposed to public policy, failed to lead any evidence. The court held that the defendant’s failure to cross-examine plaintiff’s witness and lead evidence meant that the plaintiff’s case stood unchallenged. The court presumed the Danish court’s jurisdiction under Section 14. (Paras 8-9) D) Admiralty – Bunker Supply – Settlement Agreement – The underlying dispute concerned supply of bunkers, a settlement agreement, and subsequent judgments. The court noted that defendant had raised defenses on merits which were already adjudicated by the Danish courts. (Paras 3-6)
Issue of Consideration
Whether the judgment dated 28th November 2012 of the Supreme Court of Denmark is a conclusive foreign judgment enforceable in India under Section 13 of the Code of Civil Procedure, 1908.
Final Decision
The court held that the Danish Supreme Court judgment is a conclusive foreign judgment under Section 13 CPC, the defendant having failed to prove any of the exceptions. Plaintiff is entitled to a decree for the balance sum of US$ 163,089.65, pre-suit interest of US$ 20,693.36, and pendente lite and future interest at 12% p.a. on the principal from the date of suit until realization, along with costs.
Law Points
- A foreign judgment is conclusive under Section 13 CPC if not falling under exceptions
- Exceptions to conclusiveness must be pleaded and proved
- Presumption of foreign court's jurisdiction under Section 14 CPC
- Due judicial process includes notice and opportunity
- Enforcement of foreign money decree not under Section 44A CPC but on satisfaction of Section 13 CPC
- Defendant failed to prove any exception.
