Enforcement of Foreign Judgments in India: A Fresh Look at the Merits Review Threshold After Messer

Introduction

In April this year, in Messer Griesheim GmbH (now Air Liquide Deutschland GmbH) v Goyal MG Gases Pvt Ltd, (2026 SCC OnLine SC 648) (“Messer Griesheim”), the Supreme Court of India declined enforcement of a judgment of the High Court of Justice (King’s Bench Division), England and Wales, on the basis that the UK court’s summary judgment fell within the “not on the merits” exception to enforcement of foreign judgments under Indian law. Messer Griesheim has practical significance for litigants in foreign courts who may want to enforce the resulting judgment in India. 

This article (i) traces the statutory framework governing enforcement of foreign judgments; (ii) reviews the treatment of foreign summary judgments and default judgments in Indian case law and whether they have been held to qualify as judgments on “the merits of the case”; (iii) analyses the Messer Griesheim ruling and its implications; and (iv) discusses conclusions that litigants and practitioners in foreign courts may consider when the resulting judgment may require enforcement in India.

The statutory framework: conclusiveness of foreign judgments under Section 13 CPC

Indian law proceeds on the premise that a foreign judgment passed by a court of proper jurisdiction that has been fairly decided, should ordinarily be given deference and treated as conclusive. This principle finds statutory recognition in Section 13 of the Code of Civil Procedure, 1908 (CPC), which says that a foreign judgment is conclusive as to any matter directly adjudicated upon between the same parties, unless one of the following exceptions applies:

• the judgment was not by a foreign court of competent jurisdiction;
• the judgment was not given on the merits of the case;
• the judgment appears, on the face of the proceedings, to be founded on an incorrect application of international law or refusal to recognise Indian law where applicable;
• the proceedings resulting in the judgment were opposed to natural justice;
• the judgment was obtained by fraud; and
• the judgment sustains claims founded on a breach of Indian law.

Read with Section 44A of the CPC, which provides the mechanism for executing decrees of superior courts in reciprocating territories, Section 13 reflects the balance Indian law strikes between international comity and the protection of fundamental procedural safeguards.

Of the six exceptions, the requirement that the foreign judgment must have been “given on the merits of the case” has generated great judicial attention in India. While the expression is not defined in the CPC, judicial interpretation over the last century demonstrates a gradual refinement of its meaning.

Evolution through case law of what qualifies as a judgment “on the merits”

The “decision on the merits” requirement has been one of the principal safeguards governing the enforcement of foreign judgments in India. In this context, Indian courts have distinguished between foreign cases where a court considered the rival contentions of the parties, the evidence adduced, and decided accordingly, and those where one side simply lost by default, for instance, because the party failed to participate in the proceedings, or lost the right to defend itself based on procedural norms.

One of the earliest decisions on enforcement of foreign judgments in India was the Privy Council’s findings in Daniel Thomas Keymer v P Viswanatham Reddi (AIR 1916 PC 121), where the foreign judgment was rendered after the opposite party’s defence had been struck off by the English court for his failure to respond to interrogatories. The Privy Council held that such a decision could not be enforced in India since the merits of the case were never examined by the foreign court. In L Oppenheim & Co v Mahomed Haneef Sahib (AIR 1922 PC 120), an English judgment passed in default, without the defendant appearing in court, was also noted to be unenforceable, not being on the merits.                                                     

Later Indian case laws have refined the test of what is considered a judgment on “merits”. For instance, in O P Verma v Lala Gehrilal (1960 SCC OnLine Raj 8), the court held that the test for whether a foreign judgment can be enforced is to see whether a court has independently considered the case before granting relief. In this case, enforcement was refused because the decree had been passed after the defendant was denied leave to defend itself, without the court adjudicating the disputed issues on their merits or independently evaluating the evidence.

Similarly, enforcement of foreign judgment was refused in the case of K M Abdul Jabbar v Indo-Singapore Traders (P) Ltd (1980 SCC OnLine Mad 186). Here, a judgment was passed by the Singapore High Court after not allowing the opposite party to go to trial and thereby refusing their leave to defend. This judgment was not considered as a judgment on the merits for the purposes of Section 13 CPC. In Middle East Bank Ltd v Rajendra Singh Sethia (1990 SCC OnLine Cal 247), a case was filed for recovery under a personal guarantee. The opposite party did not make an appearance, and the English court passed a judgment against him. While refusing enforcement, the Calcutta High Court held that the foreign judgment was passed without determining the truth of the contentions raised, since the opposite party had filed no defence, and it could not therefore be regarded as a judgment on the merits.

In 2001, in International Woollen Mills v Standard Wool (UK) Ltd (2001) 5 SCC 265, the Supreme Court examined whether an ex parte decree passed by a UK court could be said to be a judgment “on the merits”. The court drew an important distinction between a decree that is procedurally valid under foreign law and one that is enforceable in India. The court observed that an ex parte decree may be perfectly valid and enforceable in the country where it is pronounced, yet fail the requirements for enforcement under Indian law if the foreign court has not independently examined the merits of the claim. Conversely, the absence of the defendant does not, in itself, preclude enforcement where the foreign court has substantively adjudicated the dispute. Applying this principle, the Supreme Court held that the English decree was not the result of such an adjudication and therefore did not qualify as a judgment “on the merits”.

In Alcon Electronics (P) Ltd v Celem SA of France (2017) 2 SCC 253, the Supreme Court was examining an order in a suit filed before an English court for infringement of a patent. Before the English court, the opposite party had challenged the jurisdiction of the court – however, this was unsuccessful and the opposite party was directed to pay costs. The order of costs was sought to be enforced in India, but enforcement was resisted on the ground that the English court’s order could not be considered as a decision on the “merits of the case”.  The Supreme Court held that a foreign judgment would ordinarily be considered on the merits where the parties had reasonable notice and opportunity to present their case and the foreign court had considered the rival submissions before delivering its decision. In Alcon, since the parties had appeared before the English court and presented their case on the issue of jurisdiction, the said order was held to be on the merits of the case and enforcement was allowed.

Complementing the decision on the merits yardstick is the natural justice limb under Section 13(d) of the CPC. In Sankaran Govindan v Lakshmi Bharathi (1975) 3 SCC 351, the Supreme Court clarified that the expression “proceedings opposed to natural justice” concerns the fairness of the procedure adopted by the foreign court and has nothing to do with the correctness of the decision itself. The enquiry is confined to whether the defendant received adequate notice and a meaningful opportunity to present its case. This distinction between procedural fairness and substantive correctness is a recurring theme, forming the conceptual bridge between a decision on the merits and natural justice.

Against this backdrop, Messer Griesheim arose in the specific context of an order passed by a foreign court exercising summary jurisdiction. While International Woollen Mills concerned an ex parte decree, and in Alcon, the foreign court had heard both parties, the English judgment in Messer Griesheim had been rendered in a situation where the defendant did appear in the English proceedings and sought to contest the claim, but was refused leave to defend.

Messer Griesheim – issues and implications

The Supreme Court in Messer Griesheim considered whether a reasoned foreign summary judgment, delivered after hearing both parties, necessarily amounts to a decision “on the merits”? Or whether the summary procedure itself may have denied the opposing party a meaningful opportunity to contest the claim.

The dispute arose out of a share purchase and co-operation agreement pursuant to which Messer Griesheim furnished a corporate guarantee in respect of an external commercial borrowing availed by Goyal. Following Goyal’s default, Messer Griesheim discharged the guarantee and sought recovery before the English court.

Messer Griesheim initially obtained a default judgment after Goyal failed to make an appearance. It subsequently relied on the default judgment while initiating winding-up proceedings in India. Goyal resisted those proceedings on the ground that the judgment was passed ex parte and “did not constitute a judgment on the merits under Indian law” for the purposes of enforcement.

Recognising the difficulty in enforcing the default judgment, Messer Griesheim successfully applied before the English court to have it set aside and instead sought summary judgment. Goyal opposed summary disposal, contending that it had genuine triable issues requiring a full trial. The English court nevertheless granted summary judgment after refusing leave to defend, following which Messer Griesheim initiated execution proceedings before the Delhi High Court.

The execution proceedings ultimately reached the Supreme Court after the Delhi High Court declined to enforce the English judgment, holding that it did not satisfy the requirements for enforcement under Indian law.

Findings by the Supreme Court

The Supreme Court primarily looked at two issues: whether the English judgment met India’s requirements for enforcing foreign judgments and whether prior permission was needed under the Indian exchange control laws before the foreign judgment became enforceable.

The Supreme Court held that the judgment was not enforceable because the summary procedure adopted by the English court did not result in a genuine adjudication of the dispute and failed to afford Goyal a meaningful opportunity to present its defence. In particular, the Supreme Court held that:

• The questions of whether the judgment was rendered on the merits of the case and whether the proceedings complied with the requirements of natural justice were closely connected. The central enquiry was whether the summary procedure afforded Goyal a real opportunity to contest the claim.
• To answer that question, the Supreme Court set out the graduated Indian standard for securing leave to defend under the CPC (IDBI Trusteeship v Hubtown; B L Kashyap v JMS Steels) alongside the English standard under the English Civil Procedure Rules and the principles on exercise of summary jurisdiction settled in Easyair Ltd (t/a Openair) v Opal Telecom Ltd, [2009] EWHC 339 (Ch). It concluded that, under each framework, Goyal had raised substantial triable issues that warranted a full trial, or at the very least, a fuller investigation before the dispute could be finally determined.
• The Supreme Court drew on Easyair to observe that the English position also mandates caution before a claim is disposed of without trial. On that footing, the Supreme Court held that summary judgment “resulted in premature adjudication of disputed questions of fact and effectively denied [Goyal] a meaningful opportunity to establish its case through oral evidence and cross-examination”.
• Consequently, the foreign judgment could not be regarded as a decision on the merits of the case, and the denial of leave to defend was held to have fallen short of the requirements of natural justice.
• The Supreme Court also found the English judgment unenforceable on the ground that it failed to give effect to the conditions attached to the Reserve Bank of India (RBI)’s approval issued under the Foreign Exchange Regulation Act, 1973 (FERA) in relation to the guarantee. The Supreme Court held that the judgment proceeded without recognising binding Indian regulatory requirements applicable to the underlying transaction.

The Messer Griesheim judgment is significant because the court went beyond earlier authorities’ decisions on foreign judgments and instead undertook a comparative examination of Indian and English summary adjudication principles. It is this aspect of the judgment that merits closer examination.

The Supreme Court also separately considered whether the English judgment was independently unenforceable on account of the conditions attached to the RBI’s approval under the FERA regime. While the court addressed this issue in detail, the present article focuses on the “judgment on the merits” requirement in the context of summary adjudication. Accordingly, the discussion below is confined to that aspect of the judgment.

The Supreme Court’s comparative approach - importing Indian summary adjudication principles

Messer Griesheim raised the distinct question of whether a judgment rendered under a summary procedure, without a full trial, could be enforced in India. To answer this question, the Supreme Court undertook a comparative analysis of the procedural principles governing summary adjudication under Indian and English law.

Traditionally, the inquiry under Indian law has focused on whether the foreign court applied its mind to the dispute after giving the parties an opportunity to present their case. In Alcon, the Supreme Court held that a foreign judgment is enforceable if it follows a fair process, gives proper notice, and considers both sides’ arguments. Once these conditions were satisfied, the executing court would not sit in appeal over the correctness of the foreign decision. The emphasis in Alcon was therefore on the existence of adjudication rather than the procedure adopted in deciding the case.

Messer Griesheim proceeds a step further. The English court had indisputably heard both parties, considered extensive written submissions and delivered a reasoned judgment and yet the Supreme Court declined to enforce. The foreign proceedings in Messer Griesheim culminated in a summary judgment after Goyal had been denied leave to defend, despite raising what the Indian Supreme Court regarded as substantial triable issues. The Supreme Court therefore shifted the focus, from asking whether the foreign court gave reasons, to asking whether using a summary process was appropriate at all, given what Goyal was trying to argue.

This shift becomes evident from the authorities relied upon by the Supreme Court. Instead of confining itself to decisions on Section 13 of the CPC, the court extensively referred to Indian case law on the circumstances in which an Indian court may refuse leave to defend (see IDBI Trusteeship Services Ltd v Hubtown Ltd and B L Kashyap & Sons Ltd v JMS Steels and Power Corporation). These cases say that refusing permission to defend should be the exception, not the rule. A defendant with a real defence, even one that is not certain to succeed, should usually be allowed to defend, sometimes on conditions. Only a defence that is frivolous or has no substance at all should be shut out completely.

Interestingly, the Supreme Court in Messer Griesheim found no material divergence between English and Indian law governing summary adjudication. Both systems recognise that summary procedures are exceptional mechanisms designed to eliminate hopeless claims or defences. The divergence arose not from the legal standards themselves, but from their application to the facts before the English court.

Three things about Goyal’s defence appear to have persuaded the Supreme Court that summary judgment was the wrong call:

• First, Goyal relied upon three separate oral agreements, each of which fundamentally altered the legal relationship between the parties. Proof of such agreements necessarily depends upon oral testimony and contemporaneous documentary evidence, which need a trial.
• Secondly, Goyal produced contemporaneous corporate records – including board minutes, audited balance sheets and financial statements – which appeared to record that the appellant’s payment under the guarantee had been adjusted against wider commercial disputes between the parties. These documents had been adopted by the board of directors, carried statutory significance under the Companies Act, 1956 and had, prima facie, been approved by nominee directors representing Messer Griesheim. The court considered these documents sufficient to disclose genuine factual controversies warranting trial rather than summary adjudication.
• Thirdly, the Supreme Court attached significance to the procedural history of the English proceedings. Messer Griesheim had initially obtained a default judgment after Goyal failed to make an appearance. Having realised that a default judgment would likely face resistance under Section 13(b), it successfully sought to have that decree set aside and replaced with a summary judgment. Although the court never expressly stated that this procedural history influenced its conclusion, the judgment repeatedly refers to this sequence of events before analysing whether summary judgment was appropriate. It is difficult to avoid the inference that the court viewed the transition from default judgment to summary judgment as inviting closer scrutiny of whether the latter genuinely cured the deficiencies associated with the former.

Seen in this light, Messer Griesheim has added another layer to the tests laid down by Alcon and International Woollen Mills.

• International Woollen Mills established that a decree entered mechanically or without substantive consideration of the dispute would not satisfy Section 13(b).
• Alcon clarified that a reasoned judgment delivered after hearing both parties would ordinarily satisfy that requirement.
• Messer Griesheim adds a further dimension by recognising that even when a foreign court hears the parties and records detailed reasons, the resulting judgment may nevertheless fail the “on the merits” requirement if the foreign court prematurely foreclosed a defence that revealed genuine triable issues.

The decision in Messer Griesheim therefore applies existing principles of law to a novel factual scenario, ie, to summary adjudication. The test developed in Messer Griesheim requires the court to examine whether the foreign court complied with its own procedural rules (while deciding a case in summary jurisdiction), and also whether the foreign procedure genuinely permitted adjudication of the parties’ substantive dispute. A summary judgment obtained in circumstances where a full trial was procedurally warranted may therefore be refused enforcement, notwithstanding its validity under the law of the foreign jurisdiction.

This aspect of the judgment is likely to assume increasing significance as commercial litigation continues to embrace expedited procedural mechanisms. Although the Supreme Court did not expressly refer to the provisions under Indian law for summary adjudication, its reasoning is consistent with the philosophy that cases where there is no real prospect of success and no genuine factual controversy, do not require trial. In fact, the English law of procedure and case laws also has provisions for summary judgment to be granted only where the opposing party has “no real prospect” of succeeding and there is no compelling reason why the dispute should proceed to trial. In that sense, Messer Griesheim harmonises the law governing enforcement of foreign judgments with the procedural values that underpin summary adjudication in Indian commercial litigation.

Key takeaways for cross-border litigants

The Messer Griesheim ruling is unlikely to discourage parties from pursuing summary judgment abroad. Rather, it serves as a reminder that a judgment’s enforceability in India depends not merely on its validity under the law of the rendering jurisdiction, but also on whether the proceedings afforded the defendant a meaningful opportunity to contest the claim.

For litigants contemplating enforcement in India, three practical considerations emerge:

• First, where the dispute involves substantial factual controversies, competing documentary records or issues requiring oral evidence, parties should carefully consider whether summary adjudication is the appropriate procedural route. A judgment obtained through summary disposal may face closer scrutiny if the defendant can demonstrate that genuine triable issues were prematurely foreclosed.
• Second, foreign courts should ensure that orders granting summary judgment clearly record why the defence lacked a real prospect of success. A reasoned analysis explaining why a full trial was unnecessary is likely to strengthen the judgment’s prospects of enforcement in India.
• Third, parties should evaluate enforceability at the outset of the proceedings rather than after obtaining judgment. Procedural choices made before a foreign court, including whether to pursue default judgment, summary judgment or a full trial, will ultimately determine whether the resulting judgment can be successfully enforced in India.

Messer Griesheim does not signal a retreat from India’s pro-enforcement approach to foreign judgments. Rather, it reinforces that international comity is best served where procedural efficiency is accompanied by procedural fairness. As cross-border commercial disputes increasingly make use of expedited procedures, parties intending to enforce foreign judgments in India would be well advised to factor Indian enforcement standards into their litigation strategy from the very beginning.