The Bombay High Court has clarified that the absence of a certificate under Section 44-A(2) of the Code of Civil Procedure at the time of filing an execution application does not automatically invalidate the proceeding, provided the defect is subsequently cured by a valid certificate from the foreign court. This ruling reinforces the principle that procedural requirements must serve justice, not obstruct it.
Background & Facts
The Dispute
The Applicant, Fimbank P.L.C., a financial institution registered in Malta, extended a revolving purchase factoring facility of USD 5 million to Bhatia Tr. Co. LLC, a UAE-based company, under a Purchase Factoring Agreement dated 17.05.2018. The Judgment Debtors, Mr. Rajeev Suresh Bhatia and Mr. Suresh Tulsidas Bhatia, both Indian nationals and directors of the company, executed Personal Guarantee and Indemnity Agreements dated 17.05.2018, jointly and severally undertaking to pay all indebtedness upon first written demand by the bank, irrespective of the borrower’s insolvency or incapacity.
Key Facts
- The total drawdowns under the Facility amounted to USD 2,709,521.99
- The Company defaulted on repayment obligations from December 2019 onwards
- The cash margin of USD 500,000 and credit balance of USD 23,757.25 were adjusted, leaving an outstanding of USD 2,185,764.74
- The Decree Holder issued multiple written demands under the Guarantee Agreements, culminating in a final demand on 20.04.2022 via DHL and Indian Post
- The DIFC Court passed a default judgment against the Company on 20.12.2021, which was not challenged
- On 30.08.2022, the DIFC Court declared that the written demand requirement under the Guarantee Agreements had been satisfied
- On 16.05.2023, the DIFC Court passed a final judgment against the Judgment Debtors for:
- Principal sum: USD 2,185,764.74
- Interest at 7% per annum on invoice amounts from issuance date to judgment date: USD 502,462.67
- Total Judgment Sum: USD 2,688,227.41
- Daily interest of USD 419.19 from 25.07.2024 until full payment
- Costs: AED 315,768.44
- The Judgment Debtors did not appear, respond, or challenge the proceedings in the DIFC Court
Procedural History
- 17.05.2018: Purchase Factoring Agreement and Guarantee Agreements executed
- 17.12.2019: Judgment Debtors acknowledge cash flow issues and request extension
- 20.04.2022: Final written demand issued under Guarantee Agreements
- 30.08.2022: DIFC Court declares demand requirement satisfied
- 16.05.2023: DIFC Court passes final judgment (Claim No. CFI-068-2022)
- 20.07.2023: First application filed with DIFC Registry seeking enforcement in India; rejected for defective certificate
- 28.09.2023: Second Part 45 Application filed with DIFC Court seeking enforcement in India; DIFC Registry issues "Penal Notice" dated 24.10.2023 certifying judgment as final and executory
- 16.05.2025: Execution Application (No. 55 of 2025) filed in Bombay High Court seeking enforcement of DIFC Judgment
- 09.12.2025: Certificate issued by DIFC Court titled "Certificate in relation to satisfaction of Judgment", confirming judgment is conclusive and executable under Section 44-A CPC
- 17.12.2025: Arguments concluded on preliminary objection to maintainability
- 08.06.2026: Judgment pronounced
Relief Sought
The Applicant seeks enforcement of the DIFC Court’s judgment dated 16.05.2023, including:
- Principal sum of USD 2,185,764.74
- Interest of USD 502,462.67 (as of 16.05.2023)
- Daily interest of USD 419.19 from 25.07.2024 until full payment
- Costs of AED 315,768.44
- Attachment and disclosure of assets of the Judgment Debtors
The Parties' Positions
Applicant/Decree Holder: Argues that the DIFC Court is a superior court in a reciprocating territory under Section 44-A CPC, and the "Penal Notice" dated 24.10.2023 and the subsequent certificate dated 09.12.2025 collectively satisfy the statutory requirement of Section 44-A(2). Relies on Vitol S.A. v. Deepak Fertilizers, Sheik Ali v. Sheik Mohamed, and Discovery Drilling PTE Ltd. v. Pramod Kumar to contend that the certificate is procedural and evidentiary, not jurisdictional.
Respondents/Judgment Debtors: Contend that Section 44-A(2) mandates a formal certificate from the foreign court stating the extent of satisfaction or adjustment, and that the "Penal Notice" is not a statutory certificate under CPC. Argues that the DIFC Rules require an executory formula under Article 7(2) and Rule 45.23, which was not affixed. Relies on Bank of Baroda v. Kotak Mahindra Bank Ltd. to assert that non-filing of the certificate renders the execution application non-maintainable.
The Legal Issue
Whether the absence of a formal certificate under Section 44-A(2) of the Code of Civil Procedure at the time of filing an execution application renders the application non-maintainable, or whether a subsequent certificate issued by the foreign court - such as the "Penal Notice" and the "Certificate in relation to satisfaction of Judgment" - can cure the defect and satisfy the statutory requirement.
Arguments Presented
For the Appellant/Petitioner
The Applicant argued that Section 44-A(2) is procedural and evidentiary, not jurisdictional. Relying on the Full Bench decision in Sheik Ali v. Sheik Mohamed, the Applicant contended that jurisdiction vests upon filing the certified copy of the decree; the certificate merely serves as conclusive proof of non-satisfaction. The "Penal Notice" dated 24.10.2023, issued by the DIFC Registry in response to the Part 45 Application, explicitly confirmed the judgment as final and executory, and the subsequent certificate dated 09.12.2025 expressly stated that the judgment was "conclusive and executable" under Section 44-A CPC. The Applicant emphasized that the DIFC Court had no record of any payment, and the certificate, though issued post-filing, cured the defect. The Applicant further relied on Discovery Drilling PTE Ltd. v. Pramod Kumar to argue that the form of the certificate is not prescribed by law, and correspondence fulfilling the statutory purpose is sufficient.
For the Respondent/State
The Judgment Debtors contended that Section 44-A(2) imposes a mandatory condition precedent. Citing Bank of Baroda v. Kotak Mahindra Bank Ltd., they argued that both the certified copy and the certificate must be filed together for the application to be maintainable. They asserted that the "Penal Notice" was not a statutory certificate under CPC, but merely an internal DIFC procedural notice, and that the certificate dated 09.12.2025 was issued ex parte without service on the Debtors, rendering it invalid. They further argued that the DIFC Rules required an executory formula under Article 7(2) and Rule 45.23, which was not affixed, and that the failure to comply with DIFC enforcement procedures invalidated the entire enforcement attempt.
The Court's Analysis
The Court undertook a detailed examination of Section 44-A CPC, the nature of the certificate, and the jurisprudence on procedural compliance. It noted that while Bank of Baroda v. Kotak Mahindra Bank Ltd. emphasized the twin requirements of certified copy and certificate, it did not hold that the certificate must be filed at the time of initiating execution. The Court observed that the Supreme Court’s observation was contextual, relating to limitation, and did not overrule the Madras High Court’s Full Bench ruling in Sheik Ali v. Sheik Mohamed, which held that the certificate under Section 44-A(2) is not jurisdictional but procedural and evidentiary.
"The jurisdiction of a District Court in this country to execute a foreign judgment arises from and exercisable by the filing of a certified copy of the foreign decree or judgment. It is only thereafter, and never until then, the procedural laws as lex fori will be attracted to execution."
The Court found that the DIFC Court, being a superior court in a reciprocating territory under the 2020 notification, had validly passed a final judgment. The "Penal Notice" dated 24.10.2023, issued in response to the Part 45 Application, explicitly confirmed the judgment’s finality and executory nature, and the subsequent certificate dated 09.12.2025, tendered before the Court on 17.12.2025, expressly stated that the judgment was "conclusive and executable" under Section 44-A CPC and confirmed no satisfaction had occurred. The Court held that these documents, taken together, fulfilled the statutory purpose of Section 44-A(2) - to prevent double recovery and provide conclusive proof of the outstanding amount.
The Court further rejected the argument that the executory formula under DIFC Rules was a prerequisite for enforcement in India. It held that compliance with DIFC internal rules does not override the statutory framework of the CPC, and that the certificate under Section 44-A(2) is not bound by the form prescribed by foreign courts. The Court emphasized that procedure is the handmaiden of justice, and rigid adherence to form should not defeat substantive rights when the purpose of the requirement is met.
The Court also noted that the Judgment Debtors had not challenged the DIFC judgment, had not appeared in any proceedings, and had not offered any evidence of payment. The absence of any claim of satisfaction rendered the certificate’s function purely confirmatory, not prejudicial.
The Verdict
The Applicant succeeded. The Bombay High Court rejected the preliminary objection and held that the "Penal Notice" dated 24.10.2023 and the certificate dated 09.12.2025 collectively satisfy the requirements of Section 44-A(2) of the CPC. The Execution Application and Interim Application No. 3607 of 2025 are maintainable. The Court directed that the Execution Application and Interim Application be listed for hearing on 06.07.2026, with the DIFC judgment dated 16.05.2023 enforceable in full, including:
- Principal sum of USD 2,185,764.74
- Interest of USD 502,462.67 (as of 16.05.2023)
- Daily interest of USD 419.19 from 25.07.2024 until full payment
- Costs of AED 315,768.44
- Attachment and disclosure of assets of the Judgment Debtors
What This Means For Similar Cases
Certificate of Non-Satisfaction Is Curative, Not Fatal
- Practitioners may file execution applications under Section 44-A CPC with only the certified copy of the foreign decree, even if the certificate is not yet available
- A certificate issued later by the foreign court - whether as a formal document or a correspondence fulfilling the statutory purpose - cures the defect and validates the application
- The burden remains on the judgment debtor to prove satisfaction; silence or non-appearance does not negate enforceability
DIFC Judgments Are Enforceable in India Without Executory Formula
- Compliance with DIFC internal enforcement rules (e.g., Article 7(2), Rule 45.23) is not a precondition for enforcement under Indian law
- The CPC governs execution in India; foreign procedural formalities are relevant only to the extent they inform the substance of the certificate
- A "Penal Notice" or similar communication from the DIFC Registry, confirming finality and executory status, may suffice if it clearly indicates no satisfaction has occurred
Procedural Flexibility Upholds Substantive Justice
- Courts will not allow technical objections to defeat enforcement of valid foreign judgments where the purpose of the requirement is met
- The principle that "procedure is the handmaiden of justice" applies strongly in cross-border enforcement
- Practitioners should prioritize obtaining the certificate early, but should not abandon enforcement efforts if delayed - file and cure
