K.N. Guruswami and Others vs Muhammad Khan Sahib

Venkatasubba Rao, J.—This appeal raises a question as to the effect of an ex parte judgment passed by a foreign Court against an absent

foreigner. The facts may be briefly stated. The appellants are subjects of the Mysore State and they filed a suit in the District Court of Bangalore

against three defendants, the last of whom is the respondent before us. The suit was based upon a promissory note alleged to have been executed

by them and also upon a contract, which they were stated to have entered into. The 3rd defendant (the respondent) was a British subject and was

residing at the time of the suit in the District of Coimbatore, where (the appellants allege, though this fact is denied) he was served with the

summons in the suit. He, however, did not appear, but a judgment was passed by the Bangalore Court against him also. This foreign decree, the

appellants sought to execute in the Lower Court, but the learned Judge refused their application u/s 13 of the Civil Procedure Code, holding that it

was passed without jurisdiction. The appellants question in this appeal the correctness of the order made.

It is settled law, that the British Courts will not recognise the judgments of the Courts of a foreign country passed in an action in personam

against a British subject, not resident in that country at the date of the action, who has neither appeared in the suit nor submitted to the jurisdiction

of the foreign Court.

But, Mr. Somayya, the appellants'' learned Counsel, asks us to assume certain facts and, for the purpose of this judgment, those facts may be

assumed. Mr. Somayya''s complaint is, that the Lower Court has not given him an opportunity of proving those facts; but, in the view we take,

even assuming that the facts alleged are true, the learned Counsel''s contention cannot prevail.

The facts alleged by him are these: the three defendants were a firm of partners carrying on business within the State of Mysore, that the

partnership was subsisting on the date of the action and that the suit related to certain dealings with that firm. On these facts, it is contended, that

the 3rd defendant must be deemed to have submitted to the jurisdiction of the Bangalore Court.

The question to decide is, can the inference be drawn from the facts alleged, that the 3rd defendant agreed to submit to the jurisdiction of the

foreign Court? In Nalla Karuppa Settiar v. Mahomed Iburam Saheb ILR (1896) 20 Mad. 112 : 7 M.L.J. 76 a somewhat similar contention was

raised. The argument there was twofold; that the defendant, by carrying on business through his partners at Kandy, should first be regarded as

constructively resident there, and secondly, as having impliedly bound himself to submit to the jurisdiction of the Court under the protection of

which his business was being carried on. The second contention shows that the dealings to which the suit related were not with the defendant

individually, but with the partnership of which he was a member. But a later case, to which I shall presently refer, puts it beyond doubt that this

makes no difference. The contentions were overruled and it was held that the Court at Kandy had no jurisdiction over the defendant. The point

now raised has been more fully considered by the Court of Appeal in England in Emanuel v. Symon (1908) 1 K.B. 302. There it was argued, that

by the fact of entering into a partnership in a foreign country, the defendant bound himself to submit to the jurisdiction of the Courts of that country,

in regard to matters arising in connection with that partnership. The Court negatived that argument and explained the case of Copin v. Adamson

(1874) L.R. 9 Exch. 345. Lord Alverstone, C. J., thus observes:

The judgment in that case went in favour of the plaintiff because the defendant had expressly agreed to submit to the jurisdiction of the foreign

Court. And in the Court of Appeal the judgment of Lord Cairns proceeded on that footing, and he refrained from deciding the question whether

the mere fact of becoming a shareholder in a French company conferred jurisdiction upon the Courts of France.

Kennedy, L.J., points out that the effect of the decision of the Judicial Committee in Sirdar Gurdyal Singh v. The Rajah of Faridkote (1894)

A.C. 670 is, that the mere fact that a person enters into a contract in a foreign country, does not lead to the inference that he agrees to be bound

by the decisions of the Courts of that country. Having said so, he goes on to say that, in this respect, there is no distinction bei.ween entering into

an ordinary contract and contract of. partnership.

""It is contended,"" says Kennedy, L.J., ""that there may be some difference between a contract to be fulfilled for the immediate benefit of the

promisee, e.g., a contract for the sale of goods, and the contract contained in articles of partnership; but I can see no true line of distinction

between the two cases."" In the opinion of Kennedy, L.J., also, Copin v. Adamson (1874) L.R. 9 Exch. 345 is not an authority for the proposition

that a person, by the mere fact of becoming a shareholder in a foreign company, agrees to be bound by the decision of the foreign Court.

These authorities very clearly show that the appellants'' contention cannot prevail and this appeal must be dismissed with costs.

Reilly, J.

I agree. In my opinion the matter is concluded by (1895) ILR 22 222 (Privy Council) and Nalla Karuppa Settiar v. Mahomed Iburam Saheb

ILR (1896) 20 Mad. 112 : 7 M.L.J. 76.