UAE Judgments: Enforcement in India, Challenges and Process
By declaring UAE as a ‘reciprocating territory’, India issued the notification on 17th January for the purpose of enforcing judgments passed by UAE Courts in India. This was done in furtherance of India-UAE Agreement which was carried out in 1999 for the purposes of judicial co-operation in civil and commercial matters. The Code of Civil Procedure along with the agreement and other related provisions became applicable; UAE had still not recognized India as a ‘reciprocating territory’ under section 44 of CPC.
The Central Government can declare any country as ‘reciprocating territory’ for execution of decree passed by foreign Courts of that country through an official notification. This power is recognized under Section 44A but without such notification India can’t enforce a decree passed by such Courts. There was a delay in this notification with respect to UEA as details of superior courts were not furnished by UAE authorities to Indian authorities.
Many applications have been filed in Courts across India after the execution of this agreement to enforce UAE judgments. But this notification issued under section 44A came admits two other execution applications by Amex (Middle East) in 2018. These were placed before a Kerala Court, India, who rejected them stating the reason of lack of notification. Later this matter was taken up with authorities in UAE and it finally resulted in the notification issued by UAE declaring it as a ‘reciprocating territory’. Now judgments passed by UAE Courts are liable for execution in India.
The Process of Execution[1]
Judgments passed by the Courts of UAE go through both legal and recovery aspects for execution. A Court in India along with an Indian lawyer or law firm can undertake the legal actions while the recovery acts are executed mainly out of the Court with the aid of recovery professionals.
Legal Procedure:
i. UAE
A formal request for execution of such a judgment or decree is mandatory to be filed with the Ministry of Justice, UAE. The following duly authenticated documents have to be submitted along with the request:
• An official copy of the final judgment or decree
• Certificate which shows that the judgment or decree is final and executable unless it is provided for in the judgment or decree itself.
• When the judgment or ‘decree-in-absentia’, an authenticated copy of the summons or any other document need to be given for the purposes of showing that the defendant was duly summoned
• When the request is only for execution of a judgment or decree, an official copy has to be produced in proper executable form
• English translation of the judgment or decree is required in case of varied languages
ii. India
• Filing of an execution petition is mandated in a Court in whose jurisdiction the borrower/debtor is residing and/or carrying on business, or where his/her properties are situated for the purpose of execution of a UAE decree or judgment
• The property of borrower/debtor can be attached for sale for the purpose of enforcing the decree or judgment. It can also be executed by arrest and detention of the borrower/debtor. A receiver can also be appointed or any such other manner which the relief requires
Practical Challenges
i. Appearance of authorized local representative to sing applications or stay present in Court
In India, a lawyer’s functions are limited to handling Court procedure and appearing on behalf of the client in the Court. However in UAE, Indian lawyers cannot act for the client even if the client himself has issued the power of attorney.
He is not authorized to sign any document/application for the clients. It is mandatory that the client or his authorized representative sing all documents personally and appear in the Court whenever required. Litigant is actively involved in every stage in India during the execution process.
Let us say for example that every application requires the sign of the litigant in person or through a representative and they also have to appear in Court to give evidence etc.
It would be unreal to try and enforce a judgment in India without appointing a lawyer with proper authority since, traditionally they do not assist the client beyond the Court matters, but pilots the entire proceedings in the Court
ii. Properties identification
The properties belonging to the judgment debtor/borrower are primarily attached for any judgment demanding payment of money. This is why it is necessary that the applicant who seeks the execution of such a decree should provide complete details of the properties owned by the debtor and get the ownership documents from the Government to submit in the Courts and let them proceed with attachment and sale of the concerned properties
iii. Attachment of properties
Attaching of property requires continuous participation of the decree holder or his representative for accompanying the Court officials to levy the attachment, police protection or storage of movable goods and valuation etc. It is definitely a very taxing process
iv. Determining solvency of debtors
For the enforcement process of a money decree, it becomes crucial to determine the assets and the financial background of the debtor against whom it is sanctioned. Determining the solvency of the debtor is a very important element for fathoming the success of the execution
v.Tracing the debtor
There is no point in initiating a execution petition if the debtor isn’t found on his last known location, so it becomes necessary to trace the whereabouts of the debtor
vi. Territorial jurisdiction
The petition has to be filed in the district Court where the debtor is residing or carrying on business or has any properties situated. UAE banks or institutions would certainly find it exhausting to search and employ lawyers in such a vast country like India for enforcement of execution petitions
The process of enforcing UAE judgements in India is a stringent one! There are many challenges that demand involvement and appointment of legal as well as recovery experts. Inculcating a unified approach that involves both legal and recovery actions can help in effective implementation of this process.
[1]Since majority of the judgments in UAE pertains to money claims, this article primarily deals with execution of such judgments passed by a court in UAE.