Parties must present evidence of governing law to prevent the default application of Indian law

TransAsia Private Limited v Mr. Gaurav Dhawan

Facts & Background

TransAsia Private Limited, a Hong Kong-based company, was seeking the enforcement of an ex parte foreign judgement against Mr. Gaurav Dhawan before the High Court of Delhi.

The dispute in TransAsia centred around an execution petition filed under Section 44A of the Indian Civil Procedure Code, 1908, to enforce a foreign judgement. The execution petition resulted from a ruling rendered by the Commercial Court of England and Wales, part of the Business and Property Courts of the High Court of Justice in London. Despite the guarantee deeds specifying laws in Dubai and Singapore, the English court had applied English law and ruled in favour of the execution petitioner.

The High Court of Delhi made it clear in the current case of TransAsia Private Limited v Gaurav Dhawan that Indian courts are not compelled to identify and apply the controlling law of a dispute unless the parties concerned present expert testimony to that effect.

This clarification was provided when the court issued ex parte temporary orders for an injunction against Mr. Dhawan’s assets awaiting the resolution of the execution petition after the proceedings were registered. This was one of the rare instances in which the Delhi High Court used its discretionary powers to waive the need for notice to be sent in matters involving foreign judgements under Order XXI Rule 22 of the Civil Procedure Code,1908.

Mr. Dhawan challenged the execution petition, pointing out that the foreign judgement was inconsequential under Section 13 of the Civil Procedure Code and was therefore unenforceable in India.

The Delhi High Court invoked the ‘default rule’ from Brownlie v FS Cairo, stating that if a party doesn’t rely on a specific law, the court won’t apply it unless prompted. Since the judgement debtor was not pleading against English law, the Delhi High Court upheld the judgement’s execution. 

This precedent, referencing Brownlie v. FS Cairo, means Indian law defaults in the absence of proof of a foreign law’s applicability, even if that foreign law was chosen by the parties.

Court’s decision

The court determined that the decree holder had a case to invoke the Code of Civil Procedure’s Order XXI Rule 22(2). The judgement debtor was instructed to file an affidavit of assets within 30 days of receiving notice. The judgement debtor was prohibited from transferring, alienating, or creating third-party interests in its assets, except for financial liabilities.


TransAsia Private Limited v Gaurav Dhawan is a significant case as it sheds light on the approach of Indian courts towards determining the governing law of a dispute in international civil and commercial matters.

By clarifying that India is the default jurisdiction in the absence of evidence proving the applicability of foreign law, the Delhi High Court has provided guidance for handing such disputes. This decision underscores the importance of ensuring there is a proper application of the chosen governing law through the presentation of evidence to avoid defaulting to Indian law.                                                                                                                                                                                                                                                                                                                                                                                                                                                     Photo: Flynt |