Whether a suit for recovery of money due to a bank/financial institution, based on a foreign judgment is liable to be transferred to Debt Recovery Tribunal and if so, at what stage, is the issue arising for consideration in this case.

2. Ext.P1 is the foreign judgment rendered by the Civil Court of First Instance, Dubai in Civil Case No.82/87. The first respondent herein viz., Bank of Baroda is the plaintiff, the 5th respondent is the first defendant and the second defendant is one Tabakhol Kongoma Musaliar H. Shahal. The suit was one for money. The suit was decreed, ordering recovery of Dhs.711,476.20 with interest and costs. Based on Ext.P1 foreign judgment, Ext.P3 suit was filed by the Bank before the Subordinate Judge’s Court, Kollam, as O.S.271/87 praying for a decree to realize equivalent amount in Indian currency with interest and costs. The petitioner filed written statement contending that the petitioner is not a party to the suit, necessary parties have not been joined in the suit and that there is no decree against him. There are various other contentions as well, including the contention that no proper notice was served on the defendants, the suit is barred by limitation etc. While the suit was pending trial, the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short, ‘the Act’) came into force. In exercise of the power under Section 31 of the Act, the suit was transferred to the Debt Recovery Tribunal, Chennai. It is the main contention of the petitioner that being a suit based on a foreign judgment, unless the judgment has become and held to be conclusive between the parties as per Section 13 of the Code of Civil Procedure, and without a finding to that effect by the civil court, the suit cannot be transferred at all.

3. According to the Bank, being a suit filed by the Bank for recovery of money, the same is to be exclusively tried by the Tribunal. In order to appreciate the various contentions taken by the parties, it is necessary to refer to the various provisions under the Code of Civil Procedure, 1908 as well as the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Section 2(6) of the Code of Civil Procedure defines foreign judgment as the judgment of a foreign court. Section 13 provides for situations where a foreign judgment is not conclusive. The provision reads as follows:

“13. When foreign judgment not conclusive:- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.”

There has to an enquiry whether the judgment attracts any of the exceptions enumerated in the clauses, on the following aspect, apart of course from the acid test as to whether the judgment is between the same parties or between parties under whom they or any of them claim litigating under the same title: (i) that the judgment has been pronounced by a court of competent jurisdiction, (ii) that it is rendered on the merits of the case, (iii) that it does not appear on the face of proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases where it is applicable (iv) that the proceedings in which it was obtained are not opposed to natural justice, (v) that it has not been obtained by fraud, or (vi) that it does not sustain a claim founded on a breach of