Civil Revision Application No. 680 of 2011. Case: Ms. Alcon Electronics Pvt. Ltd Vs Celem S. A.. High Court of Bombay (India)
| Case Number | Civil Revision Application No. 680 of 2011 |
| Counsel | For Petitioner: Mrs. Jui Nerurkar i/b P. S. Dani, Advs. and For Respondents: C. T. Chandratre, Adv. |
| Judges | K. K. Tated, J. |
| Issue | Civil Procedure Code (5 of 1908) - Sections 35A, 44A |
| Citation | AIR 2013 Bom 108 |
| Judgement Date | April 08, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
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Heard learned counsel for the parties.
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Rule.
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Rule made returnable forthwith.
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By consent, the matter is taken on board for final hearing at the stage of admission itself.
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By this Civil Revision Application, the defendant - judgment debtor challenges the order dated 15th April, 2011 passed by the learned District Judge-2, Nashik below Exhibit 1 in Special (Civil) Darkhast No. 1 of 2007, rejecting the petitioner's application for declaration that the recovery proceeding filed by the respondents -original plaintiffs be disposed off/dismissed for lack of jurisdiction or even otherwise on facts and holding that the execution proceeding filed by respondents being maintainable and the judgment and order dated 19th October, 2006 passed by High Court of Justice, Chancery Division, Patents Court is executable before District Court at Nashik.
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A few facts of the matter are as under:
The respondents - original plaintiffs filed a Suit against the petitioner - original defendant in the High Court of Justice, Chancery Division, Patents Court in England. In the said Suit, the petitioner preferred Application dated 11th May, 2006 for declaration that the High Court of Justice, Chancery Division, Patents Court, U.K. have no jurisdiction to entertain the Claim No. HC 06C00720. The said Application was rejected by the Hon'ble High Court of Justice, Chancery Division, Patents Court, United Kingdom by an order dated 19th October, 2006 and imposed a cost in the sum of £12,429.75 equivalent to Rs. 10,16,753.55 paise with interest at the rate of 8% per annum. Thereafter, the respondents - original plaintiffs filed Special (Civil) Darkhast No. 1 of 2007 in the Court of District Judge-2, Nashik for execution of the order passed by the Foreign Court, for recovery of sum of Rs. 10,16,753.55 towards decretal amount under Order dated 19th October, 2006 (costs) and Rs. 67,786/- towards interest at the rate of 8% per annum on the principal amount from the date of the order date i.e. 19th October, 2006 to 14th August, 2007 and further interest till the recovery of the amount. In the said Execution petition, the petitioner preferred Exhibit 1 on 1st March, 2008 for declaration that the Execution Application filed by the respondents is not maintainable as the same is in respect of the costs imposed by the foreign Court at the time of dismissing the petitioner's Interim Application, whereas, the main matter is still pending for hearing and final disposal on its own merits. The said Application is rejected by the District Judge-2, Nashik by impugned order dated 15th April, 2011 and hence, the present Civil Revision Application.
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The learned counsel appearing on be half of the petitioner submits that the impugned order passed by the District Judge-2, Nashik dated 15th April, 2011 is against justice, equity and good conscience and the same is liable to be set aside. He submits that the District Court, Nashik failed to appreciate that the Execution Application filed by the respondents for recovery of costs imposed by foreign Court on Interim Application, whereas, the main matter is pending for hearing and final disposal on its own merits, therefore, the Execution petition is not maintainable for recovery of costs imposed by the foreign Court at the time of deciding Interim Application. He submits that the District Judge-2, Nashik ought to have seen that under Indian Law interim order for payment of costs are not executable unless it has been made into a form of a decree, which is passed at the time of final hearing of the suit and as such the execution of an order passed by the Court in England which was interim order awarding cost, could not have been held to be maintainable. He further states that the learned Executing Court failed to notice that only such part of an order or decree is executable in India which part is in consonance with the law on the subject in India as well. If there is any order passed by the foreign Court in respect of a legal position, which is contrary to the one prevailing in India, such an order cannot be executed in Indian Courts. Thus, the fundamental aspect of the matter has been completely lost sight of by the Executing Court. He further submits that the decree as defined under Section 2(2) of Code of Civil Procedure, 1908 can only be put in execution and not otherwise. He submits that the Foreign Court has not passed any order on merits till today, and, therefore, the present Execution filed by the respondents is not maintainable. He submits that the respondents is seeking to execute an interim order passed by the foreign Court. It involves the question arising out of Sections 13 and 14 of the Code of Civil Procedure, 1908. It relates to the enforceability of a foreign Court Order in India. Only the interlocutory order for payment of cost cannot be put to execution in India. According to him, therefore, the execution proceedings commenced by the respondents are liable to be rejected. He submits that the foreign Court by an order dated 19th October, 2006 dismissed the petitioner's application but no where it is stated in the said Order that the petitioner has to pay a cost of £12,429.35. He submits that the operative part of the order issued separately shows the payment of costs. Therefore, the respondents have no right to execute the said order in India. He further submits that imposing a cost for more than Rs. 10,00,000/- is contrary to the provisions of Section 35A of the Civil Procedure Code, 1908. He submits that the maximum costs prescribed in Section 35A of the Code of Civil Procedure, 1908 is only Rs. 3,000/-. On the basis of these submissions, the learned counsel appearing for the petitioner states that the impugned order passed by the District Court, Nashik rejecting the petitioner's Application below Exhibit 1 is liable to be set aside and this Court be pleased to allow the Application below Exhibit 1.
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On the other hand, the learned counsel appearing on behalf of the respondents - original plaintiffs vehemently opposed the present Civil Revision Application. He submits that after hearing both the sides the High Court of Justice, Chancery Division, Patents Court passed an order dated 19th October, 2006. He submits that in view of provisions of Sections 2(2), 2(9) and 2(14) of Code of Civil Procedure, 1908, the Execution Application filed by the respondents is according to law and the same is maintainable. He submits that in view of Section 44-A of Code of Civil Procedure, 1908 the District Court at...
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