027-NLR-NLR-V-20-SHAMJI-GORDHANDAS-&-CO.-v.-RAMANATHAN-&-CO.pdf
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Present: Wood Benton C.J. and De Sampayo J.
8HAMJI GOBDHANDAS A CO. v. BAMANATHAN A Co.297—D. 0. Colombo, 46,717..
Action on a foreign judgment—Defendant born in South India, but carryingon business and residing in Colombo—Action "brought in Bombay—Presumption as to jurisdiction of foreign Court—Is defendant boundby the Bombay judgment?
Where a person resident inone country has his domicilinanother,
a judgment passed against him in absentem, and without notice, bya Court of the country of his domicil, to the jurisdiction of which' he has not in any way submitted himself, cannot be enforced againsthim by an action in the country of his residence.
The plaintiffssued the defendant t aNatukottai Che tty," asubject
of British India,” who was residingandtradingin Colombo,on
a judgment, obtained against him intheSmallCauses Courtin
Bombay. The defendant had also a business connection withBombay for a considerable period, andwasrepresented there byan
agent. He didnot appearat thetrial in Bombay;substituted
service of summons on him was allowed by the Bombay' Court.
Held, that the defendant was not boundby thejudgment ofthe
Bombay Court.
In an actionon a foreignjudgmentthe jurisdiction oftheforeign
Court is presumed.
facts are set out in the judgment.
Bawa, K.G. (with him A. St. V. Jayawardene and Dias), fordefendant, appellant.
Hayley, for plaintiffs, respondents.
Cur. adv. vult.
November 20, 1917. Wood Benton C.J.—
The sum of money at stake in this action is comparatively small,but the point of law involved in it is of great legal and public interestand importance. The plaintiffs, Shamji Gordhandas A Company,are cloth merchants, carrying dh business in Bombay. The defen-dant, who is stated to be a Natukottai Chetty and “ a subject ofBritish India,” is at present trading in Colombo under the name ofK. Bamanathan A Company. The plaintiffs allege that on August30, 1916, they obtained judgment against him in the Court of SmallCauses at Bombay for an amount which, in principal and interest,
1917.
( 130 )
1917.
Wood
Benton G.J.
ShamjiCfordhandasA Oo. v.RamanathanA Co.
is now equivalent to Bs. 1,236.07 in Colombo currency, and theysue to recover that sum. The defendant in his answer admittedthat he was a Natukottai Chetty and “ a subject1 of British India,"but denied that he had ever carried on business in Bombay; allegedthat he had no notice, or even knowledge, of the plaintiffs’ actionagainst him in the Small Causes Court, and stated that he had neverbeen “ a subject of, or resident within," its jurisdiction. Thefollowing issues were trained at the trial: —
Had the Small Causes Court no jurisdiction because thedefendant resided outside its jurisdiction ?
Was the defendant served with summons ?
Even if issues (1) and (2) are answered in defendant’s favour, isdefendant none the less bound by the judgment ?
It was admitted by the plaintiffs’ counsel that the defendanthad not, in fact, appeared at the trial in the Small Causes Court.He stated in his evidence that he had not been personally servedwith summons, and that truth of this statement was established bythe fact that the Court' of Small Causes had allowed substitutedservice to be effected upon him by affixing a copy of the summonson a conspicuous part of the Court-house in Bombay. The learnedDistrict Judge on these materials rightly answered the second issuein the negative. He held on the first issue, on the assumed authorityof the English case of Roussillon v. Roussillon,1 that, as thedefendant was “a subject of British India," he was bound by thedecree of the Indian Court. There is nothing in the record to showthe precise meaning of the third issue, and the learned District Judgedid not deal with it in terms at all. It was, however, framed at theinstance of the plaintiffs’ counsel, and was probably designed toinclude all the other possible contentions for which the pleadings orthe evidence might lay a foundation, e.g., that either by birth or bydomicil in British India, or by an acceptance of its authority, thedefendant was subject to the jurisdiction of the Indian Court,whether he had resided within that jurisdiction or not. The learnedDistrict Judge gave judgment for the plaintiffs as prayed for, withcosts. The defendant appeals.
His counsel argued, in the first place, that the plaintiffs hadadduced no primd'facie proof that the defendant was a person overwhom the Court of small Causes at Bombay had jurisdiction underany of the clauses in section 18 of the Presidency Small Cause CourtsAct, 1882;2 in the second place, that the defendant could not bebrought within the jurisdiction of that' Court by substituted service,as personal service had not been shown to have been impracticable;and in the last place, that, even if the Court was itself competentto entertain the action, the judgment could not be enforced against
the defendant by an action in this country.
l(m?) U Oh. D,t a% p*7* 871.
*Act XV. 0/1882.
I 131 )
The first of these points is clearly untenable. In an action on aforeign judgment it is not necessary for the plaintiff to aver that theforeign Court had jurisdiction over the parties or the cause. Juris-diction is presumed, and, where that presumption has not beenrebutted, the Court in which the action on the foreign judgment isbrought will not review the competency of, or an irregularity ofthe proceedings in, the foreign Court, or even the correctness of theforeign judgment itself, unless there has been something in thenature of a violation of the rules of natural justice.1
Section 14 of the Indian Code of Civil Procedure 2 provides that
the' Court shall presume, upon the production of any documentpurporting to be a certified copy of a foreign judgment, that suchjudgment was pronounced by a Court of competent jurisdiction,unless the contrary appears on the record; but such presumptionmay be displaced by proving want of jurisdiction. "
In our present Civil Procedure Code we have no correspondingenactment, and the extent to which a Court in this Colony caninquire into the regularity of the proceedings that led up to aforeign judgment forming the subject of an action before it, mustbe governed by English law.
Moreover, the evidence in this case shows, not only that thedefendant had had a close business connection with Bombay for aconsiderable period, but that he was represented there by an agent,
. whom he admits that he left behind him for the purpose of collectingdebts. The letters P 1 and P 2, dated respectively February 5, 1915,and August 20, 1914, show that the statement in his evidence thathe had no Bombay house in those years is incorrect. The materialin the record, as it stands, supplies, in my opinion, primd facieevidence that, in those years, he was ‘‘carrying on business,” withinthe meaning of section 18 (c) of the Presidency Small Cause CourtsAct, 1882,3 within the jurisdiction of the Bombay Court. In thi9connection 1 may refer to the case of Girdhar Damodar v. KassigarHiragar,*■ in which it was held that, where a foreigner did not residein Bombay, but carried on business there by his murdm, the. Small' Causes Court had jurisdiction, under section 18 of the Act of 1882,3to try a suit brought against him.
The second of the three points above mentioned fails also. UnderOrder 5, rule 20, of the Indian Code of Civil Procedure,5 substitutedservice in the manner adopted in the present case may be orderedwhere the Court is satisfied that the defendant is keeping out of theway, or that, for any other reason, personal service cannot beeffected. It must be presumed that the Court of Small Causes in
1 See Robertson v. Struih, (1844) 5 Q. B. 941; Houldilch v. Donegal (Marquis
of), (1834) 8 BU, N. 8. 301; Castrique v. Imrie, (1870) L. R. 4 H. L. 414 ;
Pemberton v. Hughes, (1899) 1 Chancery 782 ; and the local ease of Svlaiman v.
Ibrahim (1890) 9 S. C. <7. 131.
Act V. of 1908.4 (1893) I. L. R. 17 Bom. 662.
8 Act XV. of 1882.5 And see Act XV. of 1882, s. 23.
1917.
Wood
Renton O.J_
ShamfiOordhandas& Co. v.Ramanathan
& Co.
( 132 )
1917.
Wood
Rbottok O.J.
ShamjiQcrdhandae4s Co.«.Romanathan4s Oo.
Bombay satisfied itself that one or other of those conditions existedbefore substituted service was allowed. But the matter does notrest on a mere legal presumption. The relevant proceedings in theaction in Bombay are filed of record in this case, and it appears that,before permitting substituted service, the Court of Small Causeswas in presence of an affidavit by the plaintiffs' manager containingthe following allegations: (a) That his firm held the defendant'6acknowledgment in writing of the notice of demand sent to hisaddress in Colombo; (b) that, before filing the suit, he had ascer-tained through a merchant in Colombo that the defendant's addressstill remained the same; (c) that a summons to appear and defendthe suit was transmitted to Colombo for service upon him there;
that it was subsequently sent back to Bombay with a returncertifying that the defendant was “ not known and (e) that, onconsulting his original informant on the subject, a telegraphic replywas forthcoming, " Bamanathan "(i.e., the defendant) " in
Colombo. " The Court of Small Causes was amply justified onthese materials in directing substituted service of the summons tobe effected.
There remains, however, for consideration the question whetherthe judgment of the Court of Small Causes is capable of beingenforced against the defendant by an action here, on the groundeither that he was born in British Lidia, or that he is still domiciledthere in spite of his residence in Colombo. The defendant i6 boundby his own admission in his answer—an admission repeated by hiscounsel at the trial—of the allegation- in the plaint that he was andis “a subject of British India. " Neither in the answer nor in theadmission at the trial is the sense in which those words were beingused expressly defined. But I am strongly inclined to think thatthe position which the defendant intended to take up was merelythat he was not subject, by residence or otherwise, to the jurisdictionof the particular tribunal in which he was being sued. The form inwhich the first issue is stated, and the carefulness shown by thedefendant in his evidence in dissociating himself from any connec-tion with Bombay, support that view. It is clear, however, that adefence to the action on that ground is one that ought to have beenraised in the Small Causes Court in Bombay, and that it would beof no avail as an answer to an action in this Colony on a judgmentpassed against him in the Bombay suit. The sole fact of the birthof the defendant in British India—apart from any question ofdomicil—would not, in my opinion, suffice to render him liable to.the jurisdiction of the Indian Courts. The " table of the classes ofcases, ” as it has been judicially described,1 in which Fry J. inRoussillon v. Roussillon 2 laid down the conditions of the enforcementby the English Courts of a foreign judgment in personam, no doubt
1 Per Kennedy L. J. in Emmanuel v. Symon, (1903) 1K. B.y at page 312.
* (1880) 14 Ch. D., at page 371.
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includes the proposition that such endorsement may be obtainedwhere the defendant is, at the time of the judgment in the action,a subject of the sovereign of the country in which the action isbrought. But in most of the cases from which that proposition hasbeen extracted, the country in which the judgment sued on wasgiven was “ foreign *' in the strict sense of the term, viz., a countryin which the sovereign was one other than the sovereign of the BritishEmpire. In Sckibsby v. Westenholz,1 the defendant, who was a Dane,resident in London, sued upon a judgment obtained in France, and thedictum of Blackburn J., “if the-defendants had been at the time ofthe judgment subjects of the country whose judgment is sought to beenforced against them, we think that its laws would have boundthem,” must be looked at in the light of the expert evidence beforehim, that by the law of France a French subject may sue a foreigner,though not resident in France, and of the provisions of article 14 ofthe Code Civil. Roussillon v. Roussillon2 was the case of a Frenchjudgment obtained against a Swiss subject resident in England.Apart from the effect of special legislative enactments, such as wefind in article 14 of the Code Civil, the ratio decidendi in such casesis that a subject is bound by bis allegiance to obey the command-ments of his sovereign, and, therefore, of his sovereign's Courts.In the ordinary legal sense there can, of course, be no tie of allegiancebetween a British subject and that part of the Empire to which, bybirth, he may belong. Allegiance is the tie that binds him to thesovereign.3 It was argued, however, that a6 a judgment of a Courtin British India is a “ foreign judgment ” within the meaning of thedefinition of the latter term in section 5 of the Civil Procedure Code,an artificial meaning should be attached to the expression where thejudgment of a Court of British Lidia is concerned. That contentionis expressly negatived by the decision of Atkin J. in Gavin GibsonA Go. v. Gibson,4 in which all the English authorities are reviewedand distinguished or applied. The only case that may be regardedas a direct authority to the contrary is that of Douglas v. Forrest,5in which it was held that a Scottish judgment obtained against adefendant resident abroad would be enforced in England if thedefendant were a native of Scotland. It would appear, however,that one of the grounds of this decision was that the defendant hadproperty in Scotland, a circumstance which the recent decision ofthe Court of Appeal in Emmanuel v. Symon 6 shows to be clearlyirrelevant. I would respectfully adopt the observation of Atkin J.,that Douglas v. Forrest 5 belongs to a period when the law relating•to foreign judgments had not been investigated as fully as at thepresent time, and should not be regarded as a decision that judgments
111870) L. B. 6 Q. B. 155.'« {1913) 3 K. B. 379.
*{1880) 14 Gh. D., at page 371.5 {1828) 4 Bing. 686.
9 In re Johnson, Roberts v. Attorney-• {1908) 1 K. B. 312.
General, (1903) 1 Oh. 821.
1917.
Wood
Renton C.J.
Sham&iGfordhandae4s Co. v.Bamanathandb Co.
C 184 )
1917.
Wood
Rhnton C.J.
ShamjiQordhandas4S Co. «.Ramanathan
<b Co-
obtained in the Courts oi the British dominions against absent defen-dants bom in that part of such dominions over which the Courts haveterritorial jurisdiction are on that ground only binding elsewhere.
In Oavin Gibson & Co. v. Gibson,1 however, the question as to .what the position of matters would be if the defendant, althoughnot resident, had been domiciled, in the Colony (Victoria) on ajudgment in one of whose Courts he was sued in England, did notexpressly arise for adjudication. Atkin J. held that on the materialbefore him, the existence of an Australian domicil had not beenestablished, and he disposed of the question, which it had thusbecome unnecessary to consider, whether if the defendant’s domicilhad been in Victoria, an 'English Court would have been bound togive effect to a Victorian judgment against him in a personal actionfor debt, with the words:“ I am content to record a doubt.’’ The
point is dealt with in the same sense by Professor Dicey 5 as follows: •“ Is the domicil of the defendant, as contrasted with and in theabsence of residence, sufficient to give a foreign Court jurisdiction ?This question mu6t, it is submitted, be answered in the negative.
X is a British subject residing in England, but domiciled in France.An action is brought against him in Paris. He is served with processor notice of process in England. The French Court has (semble)no jurisdiction. ”
The evidence before us in the present case is not sufficient to proveaffirmatively that the defendant, in spite of his residence in Ceylon,was domiciled in British India. But, in view of the terms of hisanswer, and of the tenor of some of his evidence, I should have beendisposed to have sent the case for the trial of an issue on that point,if it would have served any useful legal purpose, But, in theabsence of any authority to the contrary, I think that we ought inthis matter to follow the dictum of Atkin J. and the opinion ofProfessor Dicey. The passage in Lord Halsbury’s Laws of England,sto which the plaintiffs’ counsel referred us, and in which emphasisis placed upon the fact that a man’s domicil of origin or, where thathas been acquired, his domicil of choice governs his civil status, doesnot appear to me to justify the conclusion that, where he is residentin another country, a judgment passed against him in absentem, andwithout notice, by a Court of the country of his domicil, to thejurisdiction of which he has not' in any way submitted himself, can beenforced against him by an action in the country of his residence. *
On these grounds I would set aside the decree under appeal, anddirect decree to be entered up dismissing the plaintiffs’ action, withthe costs of the action and of the appeal.
Df, Sampayo J.—I agree.
Set aside.
1 (1913) 3 K. B. 879.* Conflict of Laws, 2nd ed. 368.3 Vol. 6, p. 183
* Cf. Sirdar Qurdyal Singh v. Rajah of Faridkote, (1894) A. C. 670, at page 683.