Indeed the American Court has considered and held that fraud of the defendant relates to intrinsic fraud which does not warrant non recognition as opposed to extrinsic fraud which would warrant non recognition of the judgment. It has been held in that judgment that the claim of fraud in obtaining the judgment for non recognition is limited to extrinsic fraud which is a fraudulent conduct by the party that deprived the losing party of adequate opportunity to present its case to the Court, intrinsic fraud being cases in which the judgment was passed upon false oral testimony or false documents.
Intrinsic fraud would be a fraud within the trial. It would be a fraud at the time of cause of action and the filing of the suit. It would be known to the defendant. It could be defended by the defendant. The perjured testimony or the falsified documents could be shown to the defendant who summoned to appear and answer the plaintiff's claim.
Such intrinsic fraud does not lend itself to non recognition and consequently denial of execution but if there was extrinsic fraud which was played upon the Court to obtain a decree not on the merits of the claim but at the time of the decree itself by any fraudulent conduct not known to the defendant the defendant would not be able to defend it in the trial and can get justice and relief by seeking to resist the execution of a decree obtained by such extrinsic fraud which would alone warrant non recognition of the judgment and thus prevent execution.
The judgment of the American Court has extensively considered the case law relating to misrepresentation by concealment of the facts which prevents a real trial and intrinsic fraud which cannot prevent execution. The Court also considered the facts of the case of the plaintiff, the admission of the service of the summons upon defendant who received notice of the suit. Thus fraud if played by the plaintiff could have been suppressed by the defence of the defendant which the defendant failed to show. Thus intrinsic fraud not based upon new facts but based upon the evidence known to be false and the facts known to the parties at the time of the trial must rest at that.
Bombay High Court
Masterbaker Marketing Ltd vs Noshir Moshin Chinwalla & Ors on 13 March, 2015
Bench: R.S. Dalvi
Citation;AIR 2015(NOC)771 BOM
Citation;AIR 2015(NOC)771 BOM
