Singapore Telecommunications Ltd v APM Infotech Pte Ltd

• Jurisdiction: Singapore
• Judge: Eunice Chua AR
• Judgment Date: 08 June 2011
• Neutral Citation: [2011] SGHC 147
• Court: High Court (Singapore)
• Docket Number: Suit No 383 of 2010 (Summons No 2049 of 2011)
• Published date: 13 June 2011
• Year: 2011
• Hearing Date: 27 May 2011,25 May 2011
• Plaintiff Counsel: Mohammed Reza and Alina Chia (Rajah & Tann LLP)
• Subject Matter: Civil Procedure
• Citation: [2011] SGHC 147

Eunice Chua AR: Introduction

In today’s globalised world where claims often involve parties from different jurisdictions, enforcement is of key concern to a plaintiff. This case raises the interesting question of whether a court may exercise its inherent jurisdiction to enter judgment after considering the merits of the plaintiff’s case rather than in default of appearance pursuant to O 13 r 1 of the Rules of Court (Cap 332, R 5, 2006 Rev Ed) (“the Rules”) – the former being a foreign judgment enforceable in the defendant’s jurisdiction and the latter one that is not.

Factual background

On 25 May 2010, the plaintiff filed a writ of summons with its statement of claim endorsed in the High Court. The plaintiff claimed against the defendant US$491,682.46 for the provision of international calling services that the defendant had not paid for, contractual interest of two percent per month and costs on an indemnity basis. The international calling services were provided pursuant to two agreements: (1) a “Service Request-Cum-Agreement for Corporate Voice Delivery (CVD) Service” (“the CVD agreement”); and (2) a “Service Request-Cum-Agreement for SingTel International Private Leased Circuit (IPLC) Service” (“the IPLC agreement”) (collectively “the Agreements”) entered into on 12 December 2005. The Agreements incorporated “Specific Terms and Conditions for CVD Service” and “Specific Terms and Conditions for IPLC Service”, respectively, as well as the plaintiff’s “General Terms and Conditions of Service”, two versions of which are applicable to the present dispute, namely one effective from 1 June 2004 and another effective from 1 August 2006. Both versions of the plaintiff’s General Terms and Conditions stipulated in cl 17.1 that the laws of Singapore would govern any disputes arising from the Agreements and that the defendant submitted to the non-exclusive jurisdiction of the Singapore courts.

On 15 June 2010, the plaintiff applied for leave to serve the writ of summons and statement of claim out of jurisdiction under O 11 r 1(d)(iii), (iv) and O 11 r 1(r) of the Rules. An Assistant Registrar granted an order in terms on 17 June 2010 (“the 17 June 2010 Order”).

After an initial unsuccessful attempt to serve the writ of summons and statement of claim on the defendant on 8 December 2010 at its registered office in New Delhi (Green Park, F-65, New Delhi, Delhi 110016, India) and its place of business in Noida (B-24, 25 Sector 1, Noida 210301, India), the plaintiff’s Indian solicitors, Kochhar & Co, served original and translated copies of the writ of summons, statement of claim and the 17 June 2010 Order on the defendant by way of email on 29 March 2011, at the defendant’s email address maintained by the Ministry of Corporate Affairs, Government of India, New Delhi (vkgupta27@hotmail.com). Kochhar & Co confirmed that such a mode of service was in accordance with the laws of India as follows:

... Order V Rule 9 of the Code of Civil Procedure, 1908 as applicable in India permits service of summons on a Defendant/Respondent by means of transmission of documents by fax message or electronic mail service. Accordingly, service of summons by email is recognized and accepted form of service in India.

The plaintiff filed its memorandum of service on 20 April 2011 instead of within the time period of 8 days from the date of service of the writ of summons and statement of claim due to inadvertence. The defendant failed to enter appearance after 21 days from the date of service and the plaintiff obtained a certificate of non-appearance dated 11 May 2011 confirming the same.

On 11 May 2011, the plaintiff filed Ex Parte Summons No 2049 of 2011 praying for an extension of time for filing the memorandum of service as well as for judgment to be entered against the defendant. In an affidavit filed in support of the application, counsel for the plaintiff requested that the court consider the pleadings and the affidavits filed in order to enter judgment on the merits of the case. Counsel deposed that, as advised by Kochhar & Co, the enforceability of a foreign judgment may be challenged in India if it had been given on account of the defendant’s default of appearance without any consideration of the evidence or the pleadings, ie, Indian law would not enforce a foreign judgment that had not been given “on the merits of the case”.

Section 44A of the Indian Civil Procedure Code 1908 (see Manohar & Chitaley, The A.I.R. Manual vol 4 (All India Reporter Pvt Ltd, 6th Ed, 1979) at p 958) relates to the enforcement of foreign judgments and provides as follows:

(1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a district court, the decree may be executed in India as if it had been passed by the district court.

(3) ... the district court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

[emphasis added]

Section 13 (which contains the exceptions to the rule that foreign judgments are conclusive) states in relevant part that (see Manohar & Chitaley, The A.I.R. Manual vol 4 (All India Reporter Pvt Ltd, 6th Ed, 1979) at p 700):

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except - ... (b) where it has not been given on the merits of the case. [emphasis added]

According to the advice of Kochhar & Co, the mere fact that a judgment was obtained ex parte did not per se justify a finding that a decision was not “on the merits of the case”. As laid down by the Kerala High Court in Govidan Asari Kesavan Asari v Sankaran Asari Balakrishanan Asari AIR 1958 Ker 203 and affirmed by the Supreme Court of India in International Woollen Mills v Standard Wool (UK) Ltd [2001] 2 LRI 765, even where the defendant chooses to keep out of a case, it is possible for the plaintiff to adduce evidence in respect of his claim, so that the foreign court may give a decision on the merits of the case after due consideration of the evidence instead of dispensing with such consideration and giving a judgment merely on account of the defendant’s default of appearance. Issues

The two main issues arising in the plaintiff’s application were as follows: Whether the court had the jurisdiction to enter judgment after considering the merits of the case where a plaintiff was entitled to judgment in default under O 13 r 1 of the Rules but had adduced evidence that such a judgment would not be enforceable in the jurisdiction where the defendant and its assets may be found; and If so, whether the plaintiff was entitled to judgment on the evidence adduced before the court. I answered both questions in the affirmative and now set out the detailed grounds of my decision.

Jurisdiction

The plaintiff argued that the court had the inherent jurisdiction to enter judgment after considering the merits of the case although the plaintiff was entitled to judgment in default of appearance under O 13 r 1 of the Rules. The existence of O 13 r 1 did not limit the court’s inherent powers by virtue of O 92 r 4, which provided that:

For the avoidance of doubt it is hereby declared that nothing in these Rules shall...