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TMI Blog2009 (12) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 86 of the Evidence Act embodies a presumption regarding the judicial records of any country not forming part of India. In our opinion section 86 of the Evidence Act must necessarily be read in conjunction with section 14 of the CPC. What is the interface between both the abovementioned sections is a matter which requires an examination. For all the abovementioned reasons we are of the opinion that these various questions pointed out are required to be examined after an appropriate opportunity to both the parties and accordingly we deem it appropriate to remit the matter to the learned company judge for an appropriate adjudication of the issues in accordance with law. Accordingly the matter is remitted back to the learned company judge. - COMPANY APPEAL NO. 1 OF 2009 - - - Dated:- 23-12-2009 - J. CHELAMESWAR AND B.K. SHARMA, JJ. J.L. Gupta, Mrs. M. Hazarika, Sanjay Bhatt, Ms. A. Ajitsaria and Sumanta Biswas for the Appellant. A.K Bhattacharyya, P.J. Saikia, A.N. Choudhury, K.K. Bhattacharyya, A.K. Choudhury and S. Dutta for the Respondent. JUDGMENT J. Chelameswar, CJ. Pursuant to the order dated July 29, 2009 ( Kitply Industries Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te purportedly adjudicated therein, (2) that, such a decree was obtained in violation of the principles of natural justice, and (3) that, the said decree was obtained by fraud and, therefore, in view of the specific embargo contained under section 13 of the CPC the abovementioned decree cannot be recognised by the Indian courts and consequentially no relief whatsoever on the basis of the abovementioned decree can be given. 4. At the initial stage of the proceedings, when the company petition came up for admission the appellant raised various objections including objections under section 13 of the CPC but the same was never finally adjudicated upon. Learned counsel pointed out in this regard to paragraph 2 of the judgment under appeal wherein the learned judge recorded the various objections based on section 13 of the CPC raised by the appellant herein at the initial stage of the company petition. Against the order dated November 18, 2003 ( California Pacific Trading Corpn. v. Kitply Industries Ltd. [2004] 118 Comp. Cas. 580 (Gauhati)), of admission of the company petition and directing advertisement thereof the appellant herein had earlier carried the matter in appeal being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Sri Gupta to U. S. A., were in connection with some other business and not with regard to the business giving rise to the claim and the decree. The facts pointed out in the additional affidavit of the respondent-company would necessarily require a determination which exercise will neither be feasible nor permissible to the company court to undertake. The plea taken up by the respondent-company in the affidavit, ideally, are matters which can be resolved either in an appeal against the decree or even in the course of the proceedings in execution of the decree by virtue of the provisions contained in section 13 of the Code of Civil Procedure, 1908. In a situation where the U. S. court had recorded existence of certain facts conferring jurisdiction on it and the contrary facts cannot be tested in the present proceedings, this court cannot hold that the objection of the respondent-company as to the lack of jurisdiction of the U.S. court should be sustained. 11. In so far as the objection of the respondent-company that the decree was not on the merits of the case, it will be suffice to say that a reading of the order of the U. S. court clearly shows that the claim of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is called upon to draw the presumption. However, even after the production of a certified copy of the foreign judgment the party resisting recognition or the enforcement of such a foreign judgment can always prove that the judgment was passed by a court which was not competent to adjudicate the dispute. The expression "certified copy" occurring under section 14 though not defined under the CPC section 86 of the Indian Evidence Act deals with the matter. We shall deal with the content of section 86 later. 10. On the other hand section 13 of the CPC embodies a rule of evidence that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated. In other words once a foreign judgment is produced seeking either the recognition or enforcement of the judgment, the judgment is declared to be conclusive with regard to any matter directly adjudicated by the judgment. In other words it shall not be open to the party resisting the recognition or enforcement of such a foreign judgment to plead that the judgment is erroneous either in fact or law. In other words the rule of res judicata contained under section 11 is incorporated into section 13. However, the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial record is in the manner commonly used in that country for certification of the judicial records. In our opinion section 86 of the Evidence Act must necessarily be read in conjunction with section 14 of the CPC. 15. What is the interface between both the abovementioned sections is a matter which requires an examination. We only make it clear that section 86 of the Evidence Act does not rule out other modes of proof in the context of a judicial record of a foreign country. It only provides for a presumption when a particular mode of proof is sought to be adopted. 16. For all the abovementioned reasons we are of the opinion that these various questions pointed out are required to be examined after an appropriate opportunity to both the parties and accordingly we deem it appropriate to remit the matter to the learned company judge for an appropriate adjudication of the issues in accordance with law. Accordingly the matter is remitted back to the learned company judge. 17. In view of the fact that the litigation is pending in this court for considerable length of time, we deem it appropriate to place on record that the matter requires an early consideration. 18. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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