*Niyati Gandhi

(Source:VIA Mediation Centre)

This article analyzes the Delhi High Court’s landmark judgment in Discovery Drilling Pte Ltd v. Parmod Kumar & Anr., [EX.P. 93/2019, Delhi High Court, Judgment dated 24 February 2025] concerning the enforcement of judgments of international commercial courts in India, here particularly the Singapore International Commercial Court (SICC). While the Court pragmatically recognized the SICC as a “superior court” under Section 44A CPC, it denied enforceability due to the judgment failing the “court of competent jurisdiction” test under Section 13(a) CPC. The critical issues were the lack of explicit, prior written consent from newly joined counterclaim defendants to the SICC’s jurisdiction , and the Delhi High Court’s restrictive interpretation of the “commercial nature” of the fraud and tortious claims. This decision highlights the hurdles for enforcement of judgments of international commercial courts in India, contrasting with arbitration’s more flexible approach to multi-party disputes and emphasizing the need for robust jurisdictional foundations.

I. Introduction

The Delhi High Court’s judgment in Discovery Drilling Pte Ltd v. Parmod Kumar & Anr.^[1] is a landmark decision that significantly shapes the practical landscape for enforcing International Commercial Court (ICCo) judgments in India. While the judgment provides welcome procedural clarity on aspects such as the recognition of the Singapore International Commercial Court (SICC) as a “superior court,” its ultimate finding on unenforceability due to jurisdictional concerns highlights significant practical hurdles. This article explores the judgment, analyzes its implications for litigants and the broader legal framework, and offers a practical guide for practitioners navigating this evolving area of law.

II. Deconstructing the Discovery Drilling Judgment

A. Factual Background: The Dispute and its Journey to the SICC

Discovery Drilling Pte Ltd (a Singaporean company) sought enforcement in India of a 2019 SICC judgment before the Delhi High Court. The judgment was, inter alia against two Indian defendants, Mr. Parmod Kumar Mittal and Mr. Vinod Kumar Mittal. The proceedings originated in the Singapore High Court (AKRO Group DMCC v. Discovery Drilling) and were subsequently transferred to the SICC. At the SICC, the defendants were joined in the proceedings at the time of admitting a counterclaim.

The litigation history presented several vulnerabilities from an Indian enforcement perspective, which the Delhi High Court later scrutinized:

1. Deficient Jurisdictional Foundation for Counterclaim Defendants: A crucial issue was that the Indian defendants were joined to the SICC proceedings without their explicit, prior written consent to the SICC’s jurisdiction. This omission proved fatal during the Indian enforcement proceedings.   
   
   
2. Weak Territorial Nexus to Singapore: The dispute’s connection to Singapore was tenuous at best. The SICC itself, when considering an application for a Registered Foreign Lawyer to appear in its proceedings, acknowledged this. It noted that the relevant contract negotiations occurred in Houston, the contract was executed in Delhi and its performance was primarily in Texas. The SICC concluded that the action had “no substantial connection with Singapore,” a factor that, while not dispositive for SICC’s own jurisdiction (which can be based on party agreement), likely influenced the Delhi High Court’s perception.

3. Contested Subject-Matter Characterization: The non-contractual claims against the Indian defendants, which included allegations of fraud, conspiracy and breach of fiduciary duty, were ultimately deemed by the Delhi High Court to fall outside its interpretation of the SICC’s designated “commercial” mandate.

B. The Delhi High Court’s Decision:

The Delhi High Court’s analysis of the SICC judgment can be considered in two parts:

1. procedural recognition under Section 44A CPC; and
2. substantive enforceability under Section 13 CPC.   
   
   

i. Procedural Recognition (Section 44A CPC)

The Court affirmed the SICC’s status as a “superior court” of a reciprocating territory (Singapore) for the purposes of Section 44A CPC.[2] This recognition was not based on a new notification specifically naming the SICC, but primarily on the SICC’s structural integration as a division of the Singapore High Court, which India has previously notified.

Furthermore, demonstrating judicial pragmatism, the Court accepted an email communication from the SICC’s registry confirming that no appeal had been filed against the judgment and no enforcement proceedings had been taken out in Singapore, in lieu of a formal certificate of non-satisfaction as typically envisaged under Section 44A(2) CPC. This was deemed sufficient as it fulfilled the essential purpose of informing the enforcing court about any satisfaction or adjustment of the decree.

ii. Substantive Enforceability (Section 13 CPC)

Despite the procedural green light under Section 44A, the SICC judgment was held to be unenforceable because it failed the substantive test under Section 13 of the CPC outlines several grounds on which a foreign judgment will not be considered conclusive in India, and would thus be rendered unenforceable.[3] In particular, it could not have been considered as having been pronounced by a “court of competent jurisdiction” under Section 13(a), for the two following reasons:

            a. The Primacy of Consent (Joined Parties)

The Delhi High Court found that a counterclaim against newly joined parties effectively “originates” fresh proceedings against them. Consequently, the SICC’s own rules requiring a written jurisdictional agreement from parties in an originating process (specifically, SICC Rules Order 110 Rule 7) would apply      to the Indian defendants joined pursuant to the counterclaim.

On this basis, the Delhi High Court found that the failure to obtain explicit, prior written consent to the SICC’s specific jurisdiction from the newly joined parties was fatal to the enforcement of the judgment against them in India. The Delhi High Court explained that while it recognized the SICC’s status as a division of the Singapore High Court, the SICC’s own rules for assuming jurisdiction required the consent of the parties, and this consent was absent for the newly added defendants in the counterclaim. The court reasoned that a counterclaim against a new party is akin to an “originating process” against that party, thereby triggering the consent requirement under the SICC’s rules.

b. The Restrictive “Commercial Nature” of the Dispute

The Delhi High Court also undertook its own review of the characterization of the claims against the Indian defendants (fraud, conspiracy, breach of fiduciary duty, tortious claims) to determine if they fell within the commercial jurisdiction of the SICC.

It found that the claims against the joined Indian defendants did not a satisfy the SICC’s specific mandate under Section 18D of Singapore’s Supreme Court of Judicature Act      and SICC Rules Order 110 Rule 1(2)(b) [analysed below]. While t     he High Court      did not explicitly      state so     ) it implied that the SICC could only exercise jurisdiction over strictly contractual disputes.  It did not provide clear reasons or rely on any precedents to support this particularly narrow interpretation of “commercial” in the context of the SICC’s jurisdictional remit.

The court’s finding here was that even if the SICC is a “superior court” the specific nature of the counterclaim (allegations of fraud, conspiracy, and breach of fiduciary duties) did not align with the definition of a “commercial” dispute as per the SICC’s own rules and the underlying relationship between the petitioner and respondents. The court noted that there was no commercial relationship between the petitioner and the respondents in this context.

c. Fulfillment of Other Section 13 CPC Elements

On a more positive note, the Court did affirm that the SICC judgment was rendered “on the merits” (as required by Section 13(b) CPC). This was because evidence was considered by the SICC, rather than the judgment being passed merely due to a default of appearance or pleading. It also found that the SICC proceedings were not “opposed to natural justice” (Section 13(d) CPC) simply due to alleged irregularities in service of process, especially given the defendants’ demonstrable awareness of and participation (albeit under protest) in the proceedings. Notably, the Court indicated it did not need to consider the summons issue afresh, viewing the existing record as sufficient in this regard, which can be seen as a positive development in terms of procedural efficiency. These findings were encouraging as they prevented a large-scale merits review of the SICC’s decision, a concern often seen in arbitration enforcement under expansive public policy arguments.

III. Analyzing the Discovery Drilling Judgment

A. Procedural Recognition (Section 44A CPC)

1. Institutional Integration: The Delhi High Court’s rationale that the SICC, as an integral division of the Singapore High Court, inherits the High Court’s pre-existing “superior court” status is a significant finding. It prioritizes the SICC’s position within the established judicial hierarchy of the reciprocating state (Singapore). This implies that other ICCos similarly structured as divisions or permanent establishments of recognized superior courts in reciprocating territories would likely receive similar recognition in India, potentially sidestepping the need for new, specific notifications for each ICCo. While practically beneficial for expediting recognition, this approach views the SICC’s powers as derivative for Indian enforcement purposes, rather than inherently recognizing the unique standing of specialized international commercial courts.
   
   
2. Pragmatism in Procedural Requirements (Certificate of Non-Satisfaction): The Court’s acceptance of a SICC email in lieu of a formal Section 44A(2) certificate reflects commendable judicial pragmatism. It signals a willingness to accommodate variations in international administrative practices, provided substantive justice and the core purpose of the procedural requirement are not compromised.

B. Substantive Challenges to Enforcement (Section 13 CPC)

i. Jurisdictional Consent:

The Delhi High Court’s requirement of explicit, prior written consent to the SICC’s specialized jurisdiction for joined parties presents a particularly stringent, and arguably regressive, application of consent principles in the context of modern multi-party commercial litigation. This interpretation appears out of sync with the practical necessities of resolving complex international commercial disputes that frequently involve multiple interconnected contracts and parties.           

In stark contrast, international arbitration jurisprudence, while also fundamentally grounded on consent, has evolved more nuanced and flexible approaches to the joinder of third parties or the consolidation of related disputes. This evolution is driven by the imperative of providing effective, efficient and comprehensive dispute resolution in today’s intricate global business landscape. For instance:

     Many      leading arbitral institutions (e.g., ICC International Court of Arbitration, SIAC (Singapore International Arbitration Centre), LCIA (London Court of International Arbitration)) have sophisticated provisions in their rules that allow for the joinder of additional parties. Such joinder is often subject to the arbitral tribunal’s determination that the third party is prima facie bound by the arbitration agreement and that their participation is conducive to the efficient resolution of the dispute. While consent remains key, it can sometimes be construed from the broader contractual matrix, subsequent conduct or the interrelationship of the claims. These findings of jurisdiction are being consistently found enforceable by courts around the world.

     A case is to be made even on the group of companies doctrine. In arbitration, even theories such as the “group of companies” doctrine (though its application varies significantly by jurisdiction and has been viewed restrictively in India for binding non-signatories, as affirmed in cases like the Supreme Court’s decision in Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd. & Anr. (2021) 11 SCC 1) or principles of implied consent, assignment, agency, alter ego or piercing the corporate veil are sometimes invoked. The underlying aim of such      doctrines is to ensure that all relevant economic actors in a single commercial transaction can be part of a unified dispute resolution process, thereby avoiding fragmented proceedings and potentially conflicting outcomes.

The Delhi High Court’s insistence on      Discovery Drilling on a fresh, explicit, written consent from the Indian defendants to the SICC’s specific jurisdiction for the counterclaim starkly contrasts with this progressive trend in arbitration. By treating the counterclaim defendants as complete strangers to the SICC’s jurisdiction despite their alleged intrinsic involvement in the broader dispute (which was already validly before the SICC via transfer from the Singapore High Court), the judgment potentially undermines the ability of international commercial courts to efficiently manage and resolve all facets of a complex commercial problem involving multiple related entities. This aspect, if upheld, could significantly deter the use of ICCos in disputes with potential Indian enforcement implications where multi-party scenarios are anticipated.

ii. “Commercial Nature” of Ancillary Claims

The Delhi High Court’s narrow characterization of the claims against the Indian defendants (fraud, conspiracy, breach of fiduciary duty) as falling outside the SICC’s “commercial” mandate for those specific parties must be tested. This interpretation appears to unduly limit the SICC’s effective jurisdiction primarily to purely contractual claims against a given party, a position that is likely contrary to the SICC’s own foundational principles and, importantly, may not even reflect the intended scope of “commercial dispute” within the broader Indian legal and enforcement framework itself.          

The SICC Rules (Order 110 Rule 1(2)(b)(i)) define a claim as “commercial in nature” if “the subject matter of the claim arises from a relationship of a commercial nature, whether contractual or not, including (but not limited to) any of the following transactions…”. The explicit inclusion of “whether contractual or not” strongly signals a legislative intent by Singapore to empower the SICC to adjudicate a wide spectrum of disputes that arise in a commercial setting.

Furthermore, such a restrictive interpretation does not align with India’s own progressive legislative approach embodied in its Commercial Courts Act, 2015. Section 2(1)(c) of this Act provides an expansive definition of “commercial dispute,” encompassing a wide array of transactions and relationships, many of which can give rise to non-contractual claims (e.g., disputes involving allegations of fraud, misrepresentation, or breach of fiduciary trust within joint ventures, partnerships, or complex financial arrangements).

C. The Broader Context: ICCos, Arbitration and Next Steps

1. The Enforcement Asymmetry: Court Judgments vs. Arbitral Awards: The New York Convention provides a near-universal and relatively streamlined framework for arbitral award enforcement, implemented robustly in India via the Arbitration and Conciliation Act, 1996. In contrast, foreign court judgment enforcement relies on often inconsistent bilateral treaties and domestic statutes like Section 44A CPC and Section      13 CPC, which, as the case demonstrates, can present substantial hurdles. This disparity remains a primary driver for the popularity of international arbitration.    

2. Arbitration’s Impact on Common Law Development: The rise of ICCos is, in part, a response to legitimate concerns that the private, confidential nature of international arbitration stymies the development and evolution of commercial common law. Publicly available, reasoned court judgments from specialized commercial courts are essential for jurisprudential evolution and providing guidance to the business community. ICCos aim to fill this void. However, as Discovery Drilling shows, a predictable and robust enforcement framework is absolutely crucial for their widespread adoption and effectiveness.

3. Converging Paths: Addressing Commercial Needs and Jurisprudential Adoption: There’s an observable trend towards the “arbitralization” of ICCo procedures (e.g., greater party autonomy, appointment of specialist international judges, flexible case management) to enhance their appeal to commercial users. Conversely, arbitration itself faces critiques of “over-judicialization.” Discovery Drilling suggests that for ICCo judgments to gain wider acceptance and enforceability in jurisdictions like India, this “arbitralization” must be carefully balanced with adherence to fundamental legal principles and rigor, especially concerning jurisdiction.

IV. The Way Forward: Shaping the Future of ICCo Judgment Enforcement in India

A. The Path of Appeal in Discovery Drilling: Potential for Legal Evolution

The single-judge decision in Discovery Drilling is under appeal before a Division Bench of the Delhi High Court (next hearing in August 2025). This appeal presents a significant opportunity to:

1. Revisit Key Interpretations: The appellate court could reconsider the requirement of consent for joined parties and offer a broader, more pragmatic interpretation of “commercial dispute” in the context of ICCos, potentially aligning more closely with international arbitration practices for multi-party disputes and the SICC’s own rules.      
   
   
2. Provide Authoritative Guidance: The Division Bench could offer a broader, more context-sensitive interpretation of what constitutes a “commercial dispute” within an ICCo’s mandate, especially for claims like fraud or conspiracy frequently intertwined with international commercial transactions. This would be particularly relevant given the SICC’s own rules and India’s expansive definition under its Commercial Courts Act.        
   
   
3. Consider Global Best Practices: The Bench might take into account evolving global standards in foreign judgment recognition and the policy objectives behind the establishment of ICCos. The outcome will be keenly watched and will likely set a significant precedent for ICC judgment enforcement in India.

B     . Broader Policy and Legislative Reforms

Broadly, India must engage with international frameworks:

• 2005 Hague Convention on Choice of Court Agreements (HCCCA): India has signed but not yet ratified this convention. Ratification could significantly improve the enforcement landscape for judgments from courts chosen in exclusive jurisdiction agreements that fall within the convention’s scope.

• 2019 Hague Judgments Convention: This convention aims for broader recognition and enforcement of civil and commercial judgments. While it has entered into force for some jurisdictions (e.g., EU) its global uptake is not encouraging. India’s accession should be considered as part of a long-term strategy to enhance cross-border enforceability if more jurisdictions consider this going forward.         
  
  

1. Aligning ICC Judgment Enforcement with Arbitration Standards?

One option could be to merge the benefits of specialized ICCos and the robust, widely accepted New York Convention enforcement regime. This could involve:

2. Streamlining Arbitral Award Enforcement: First, unequivocally streamline the enforcement of arbitral awards from all NYC signatory jurisdictions, addressing any lingering domestic notification ambiguities (e.g., UAE is notified as a reciprocating territory under the Indian Arbitration Act).     
   
   

3. Elevating Qualifying ICC Commercial Judgments to Commercial Awards: Second, explore a mechanism for according judgments from recognized ICCos, a status akin to arbitral awards for enforcement purposes in India. This might involve legislative amendments to create a special, expedited pathway for qualifying ICCo judgments, potentially limiting grounds for refusal of enforcement to those similar to the NYC (e.g., fundamental public policy, due process violations) rather than the broader grounds currently available under Section 13 CPC. This approach is being adopted in respect of awards under specific new generation Indian BITs.

V. Practitioner’s Playbook: Enforcing ICCo Judgments in India Post-Discovery Drilling

A. Executive Summary of Key Lessons from Discovery Drilling

1. How to Enforce: The SICC is affirmed as a “superior court” under Section 44A CPC due to its integration with the Singapore High Court. Pragmatism on procedural certificates (like the certificate of non-satisfaction) is possible but not guaranteed.           
   
   
2. What is (Un)Enforceable: Key vulnerabilities are the strict view on explicit, prior consent for all parties (especially those joined post-initiation via counterclaim) and the enforcing court’s potentially restrictive interpretation of the “commercial nature” of non-contractual claims against certain parties.
   
   
3. Implications for Execution Strategy: Practitioners must meticulously address foundational legal principles like explicit consent from all targeted defendants, territoriality (where relevant) and the precise “commercial” characterization of all disputes (ensuring non-contractual claims are clearly framed within a commercial context and linked to the defendants) when litigating in ICCos with an eye towards Indian enforcement.

B. Strategic Imperatives and Due Diligence

For Indian enforcement, ensure explicit, unambiguous, written consent to the specific ICCo’s jurisdiction is obtained from all parties against whom enforcement might eventually be sought, including those potentially joined later via counterclaim or other procedural mechanisms. Do not rely on assumptions of implied consent or the perceived efficiency of joining related parties without their explicit agreement to that specific ICCo’s jurisdiction. Contractual undertakings by one party to procure consent from its affiliates may not suffice if challenged by a non-signatory affiliate in an Indian court.

Carefully assess if all claims (contractual and particularly non-contractual) against all parties will unequivocally be viewed as “commercial” under both the ICCo’s mandate and the likely interpretation by Indian courts. Pleadings should be framed to emphasize the commercial context and direct commercial links for all claims, especially non-contractual ones, aligning with both the foreign court’s rules (like SICC’s “whether contractual or not” provision) and Indian domestic standards (such as the expansive definition in the Commercial Courts Act).

VI. Conclusion: Navigating the Evolving Landscape

Discovery Drilling is a critical case to watch. The present judgment confirms that while specialized ICCos like the SICC may achieve institutional recognition in India, their judgments will face exacting scrutiny against fundamental domestic legal principles. However, the landscape is not static. The judgment is already in appeal and is likely to progress all the way to the Supreme Court.

Practitioners must adopt an enforcement-led litigation strategy from the very inception of any ICCo case that might ultimately require enforcement in India. This necessitates not merely selecting a sophisticated forum but ensuring that jurisdictional anchors are exceptionally robust. This is particularly concerning unequivocal consent for all involved parties and the requirement that all claims, including non-contractual ones arising in a commercial context, are appropriately characterized and evidenced to withstand rigorous challenges under Section 13 CPC. The persistent advantages and broader acceptance of the New York Convention mean that international arbitration will often remain a more predictable choice where global enforceability is paramount, especially when dealing with complex multi-party scenarios where obtaining explicit consent from every potential future party to a specific court’s jurisdiction proves difficult.

As ICCos continue to mature, as international conventions for judgment recognition gain wider traction, and as India potentially considers more transformative policy approaches to align the enforcement of certain ICCo judgments more closely with established international arbitration standards, the environment may evolve favorably. The ultimate goal for the legal community must be to foster a system that effectively supports global businesses through fair, predictable and efficient cross-border dispute resolution where the reasoned decisions of competent courts find due recognition and enforcement across borders.

^[1] EX.P. 93/2019, Delhi High Court, Judgment dated 24 February 2025.

[2] Section 44A, Code of Civil Procedure, 1908.

[3] Section 13, Code of Civil Procedure, 1908.
13. When foreign judgment not conclusive.

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–

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1 [India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1 [India].

*Niyati Gandhi is a partner in the dispute resolution practice at Shardul Amarchand Mangaldas. Her practice includes international investment and commercial arbitration, complex commercial litigation, and multi-jurisdictional enforcement. Niyati has worked on several cross-border enforcements of large foreign judgments and awards in multiple jurisdictions including India, UAE, Singapore, Mauritius, US, UK and Cayman Islands. She regularly represents States, state-owned entities, sovereign wealth funds and multinational companies in significant litigations and arbitrations.