Chamber Summons No. 864 of 2014 alongwith Notice of Motion No. 253 of 2015. Case: Kolmar Group AG Vs Traxpo Enterprises Pvt. Ltd.. High Court of Bombay (India)

Case NumberChamber Summons No. 864 of 2014 alongwith Notice of Motion No. 253 of 2015
CounselFor Appellant: Mr. Karl Tamboly, Counsel a/w. Mr. Rakesh Mandavkar, Adv. a/w. Akshita Buch, Adv. i/b. M/s. Mulla & Mulla & CB & C and For Respondents: Mr. Mathews Nedumpara, Adv.
JudgesMrs. Roshan Dalvi, J.
IssueCivil Procedure Code - Sections 44A, 13, 14; Order 21 Rule 41(3); Order 41 Rule 1; Order 1 Rule 1; Order 2 Rule 2; Order 23 Rule 3(1); Specific Relief Act - Sections 38, 41(a)
Judgement DateApril 09, 2015
CourtHigh Court of Bombay (India)

Order:

  1. The applicant / decree holder / judgment creditor (plaintiff) has obtained a judgment in the above suit from the Royal Courts of Justice, London, UK against the respondent / judgment debtor (defendant) herein on 1st February, 2010, which the plaintiff desires to execute. Consequently the above execution application is filed for execution of the above judgment. In the above execution the plaintiff has taken out the above Chamber Summons for depositing of decretal amount and failing which for disclosing the particulars of the assets and properties of the defendant, for issue of notices, precepts and warrant as may be required under Order 21 of the CPC, for an injunction against defendant from transferring, alienating and creating any third party rights of any of its properties, appointment of receiver, for detaining the defendant in civil prison upon non compliance of order of disclosure and other incidental reliefs and costs of the application.

  2. The certified copy of the above judgment is filed. The plaintiff would contend that the foreign judgment is conclusive between the parties and can be executed by this Court. The Chamber Summons came to be served upon the defendant by post on 12th September, 2014 and by hand delivery of 9th September, 2014. The notice taken out in the above application also came to be served through personal service by bailiff of this Court upon the defendant on 23rd October, 2014. The defendant failed to file any reply. An adinterim injunction came to be granted on 3rd November, 2014. The respondent was represented and applied for time which was granted making the Chamber Summons returnable on 19th November, 2014.

  3. On 19th November, 2014 the defendant absented itself. No affidavit in reply was filed. The Chamber Summons was granted in terms of prayer 'a' directing defendant to deposit the decretal amount of Rs.11.31 crores with interest as claimed in prayer 'a' of the Chamber Summons within four weeks from that day. If the defendant did not deposit the amount the defendant was directed to disclose its assets, means and properties within 8 weeks from that day. It was directed that if it was not disclosed further orders under Order 21 Rule 41 would have to be passed. The Chamber Summons came to be adjourned to 21st January, 2015.

  4. On 21st January, 2015 the defendant was again represented. No affidavit in reply was filed. The decretal amount was not deposited. No disclosure was made. Order under Order 21 Rule 41(3) came to be passed. A precept came to be issued for the properties of the defendant which was not within the territorial jurisdiction of this Court. A bailable warrant came to be issued for sum of Rs.50,000/by way of cash bail against director of the defendant. It was made returnable on 25th February, 2015.

  5. On 25th February, 2015 the defendant was represented by the present advocate. The directions passed on 19th November, 2014 were yet not complied. A director of the defendant was arrested under the bailable warrant issued and appeared before the Court. The cash bail of Rs.50,000/was deposited in this Court. The decretal amount was not deposited and the affidavit of disclosure was not filed. The defendant applied for time to file the affidavit in reply. The bailable warrant came to be cancelled. The defendant was given time to file reply to the plaintiff's Chamber Summons with a direction that if the defendant failed, further Order 21 Rule 41(3) would be passed. The order of injunction against alienation and encumbrance of the properties of defendant or creating any third party rights thereunder also came to be passed. The director was directed to remain present on the forthcoming dates of hearing.

  6. On 11th March, 2015 when the Chamber Summons again appeared on board, the affidavit of disclosure was not filed. The time was requested as the father of the advocate had expired. The Chamber Summons came to be adjourned to today.

  7. In the mean time, instead of filing any affidavit of disclosure, the defendant took out above Notice of Motion for recalling the initial order of deposit of the decretal amount under prayer 'a' of the plaintiff's Chamber Summons dated 11th November, 2014 on the ground that it was passed exparte and without hearing defendant and without allowing him an opportunity of being heard.

  8. It may be mentioned that the order came to be passed against the defendant as it failed to appear despite service. The Notice of Motion of the defendant was taken out on 16th December, 2014. Yet it was not served until 28th January, 2015 when the plaintiff's Chamber Summons reached hearing. It has been served thereafter.

  9. Counsel on behalf of the defendant argued why the above judgment, which is a foreign judgment, cannot be executed by the plaintiff. Hence both the above applications are heard together.

  10. Mr. Nedumpara on behalf of the defendant argued on various aspects of various laws which may be only enumerated. Suffice to say that they are either totally irrelevant or inapplicable except the argument on territorial jurisdiction of this Court and the non conclusiveness of the above foreign judgment under Section 44A and 13 of the CPC respectively which shall be considered in detail.

  11. Mr. Nedumpara argued that the plaintiff is not entitled to immediate execution.

    The executing Court has to go into entire facts.

    There is no estoppel and no application of the principles of resjudicata.

    The judgment is only prima facie evidence and is not conclusive.

    The doctrine of comity is applicable.

    The test of Order 41 Rule 1 must be applied to foreign judgments.

    The judgment has no finality because a fresh suit has been filed by the defendant.

    Order 1 Rule 1, Order 2 Rule 2, Order 23 Rule 3(1) of the CPC would apply.

    Section 38 and Section 41(a) of the Specific Relief Act are applicable.

  12. Mr. Nedumpara on behalf of the defendant produced a photocopy of an entire English book relating to principles of estoppel in which the earlier preface is of the 19th century and the later preface is of 1906. A rather tattered book has been photocopied and bound. It would be seen to be of the year 1906. It would lay down English law of estoppel as of that date. That would be the common law. The common law would be applicable in India in the absence of any statute. Section 13 of the CPC came on the statute book of 1908 under the CPC of 1908. It is remained unamended or unchanged through the amendments of the CPC in 1976, 1999 and 2002. It is the special law with regard to conclusivity of foreign judgment in respect of such subject matter. Therefore, the common law principles of estoppel or any other aspects of English jurisprudence would not apply to foreign decrees and judgments which are sought to be executed in India.

  13. It is easy to see that these contentions do not deserve further consideration. The judgment of the foreign Court is conclusive under Section 13 of the CPC with regard to all...

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