Worman &Co. V. Noorbhai

Present: Lascelles C.J. and De Sampayo A.J.

WORMAN & CO. v. NOORBHAI

142-D. C. Colombo, 30,435,

Action on a foreign judgment-Is defendant bound by the judgment!

Plaintiffs obtained judgment against the defendant in the Court of Small Causes of Calcutta, but the defendant was not domiciled within the jurisdiction of the Indian Courts, and was not resident there at the time of the action against him, and did not appear to the process or agree to submit to the jurisdiction of the Court of Small Causes.

The plaintiffs subsequently sued the defendant in the District Court of Colombo on the judgment of the Calcutta High Court.

Held, that the defendant was not bound by the decree of the Calcutta Court.

THE facts are set out in the judgment of the District Judge (H. A. Loos, Esq.): -

The plaintiffs seek to recover from the defendant the sum of Rs. 2,282, which is the amount for which they obtained judgment against him in the Court of Small Causes of Calcutta in India.

The defendant pleads that the Calcutta Court had no jurisdiction to entertain the action against him, presumably meaning that the contract sued upon was made in Colombo, and that he was a resident in Colombo at the date of the institution of the action in Calcutta, although he does not say so in his answer.

He also pleads that he was not served with summons in that action, and had no notice whatever of any proceedings against him in the Calcutta Court.

The parties went to trial on the following issues, viz.: -

(1) Had the Court of Small Causes, Calcutta, jurisdiction to entertain the action against the defendant?

(2) Was summons served upon the defendant in that action?

The plaintiffs stated that the contract sued upon was executed in Calcutta, and presumably satisfied the Calcutta Court that it was executed at Calcutta, for otherwise that Court would have had no jurisdiction to try the action, the defendant being resident outside the jurisdiction of that Court, admittedly.

If, as a matter of fact, the contract in question wag executed in Colombo, as the defendant states, and showed on the face of it that it was executed in Colombo, it is quite clear that the defendant would have produced a copy of the contract in support of his statement. He has not produced it, however, and he gives no explanation of his failure

to do so. He says he may have a copy of the contract, but he cannot remember if he looked for it. I cannot believe that the defendant would not remember if he looked for his copy of the contract, nor that he would not have produced it, or have noticed the plaintiffs to produce a copy of it, if it would have established that it was executed in Colombo and not in Calcutta as stated by plaintiffs.

If what the defendant states is true, that the contract on the face of it shows that the place of its execution was Colombo, there is no doubt that a copy of the contract would have been produced by him. His failure to do so convinces me that the contract was executed in Calcutta, and that the Calcutta Court accordingly had jurisdiction to entertain that action.

The other issue raised is as to whether summons was served upon the defendant in that action. It is proved that the summons was forwarded to the defendant under registered cover by post. The defendant admits that if a registered letter had been forwarded to him there is no doubt that he would have received it; but he states that he received no registered letter from Calcutta containing a summons in respect of the contract in question.

From the copy of the proceedings (C) of the action in the Calcutta Court, is appears that that Court was satisfied that summons had been duly served on the defendant, and recorded a finding to that effect. I see no reason whatever to doubt that the summons was served upon the defendant in the Court of Small Causes action.

The onus lay on the defendant to establish that the Calcutta Court had no jurisdiction to enter

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