Punjab-Haryana High Court
Karnail Singh Sandhar vs M/S Sandhar And Kang Limited on 10 September, 2010
Equivalent citations: AIR 2011 (NOC) 69 (P. & H.)
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
C.R. No.4821 of 2010 -1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.4821 of 2010 (O&M)
Date of decision:10.09.2010.
Karnail Singh Sandhar ...Petitioner
Versus
M/s Sandhar and Kang Limited ...Respondent
CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Arun Jain, Senior Advocate, with
Mr. Amit Jain, Advocate, for the petitioner.
Mr. M.L.Sarin, Senior Advocate, with
Mr. Rohit Khanna, Advocate, for the respondent.
*****
RAKESH KUMAR JAIN, J.
The petitioner has invoked the revisional jurisdiction of
this Court under Article 227 of the Constitution of India to
challenge the impugned order dated 26.02.2010 (Annexure P-7)
passed by the District Judge, Sangrur upholding the maintainability
of the execution application filed by the respondent who has
sought to execute foreign judgments (judgments of the Courts at
United Kingdom) at Sangrur in India.
In order to trace the genesis of controversy between
the parties to the dispute [hereinafter referred to as "the parties"] a
few skeletal facts are necessary, namely, what was the basic
C.R. No.4821 of 2010 -2
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dispute between the parties and what were the judgments and
decrees passed by the Courts at United Kingdom.
Litigation between the parties at United Kingdom
The petitioner (Karnail Singh Sandhar) filed a Claim
No.7BM30125 against i) Sandhar & Kang Limited; ii) Swarn Singh
Kang; iii) Udham Singh Kang; and, iv) Avtar Singh Kang in the
High Court of Justice, Chancery Division, Birmingham District
Registry, United Kingdom [hereinafter referred to as the "High
Court of Justice"] on 23.03.2007, inter alia, alleging that the
petitioner was formerly a resident of United Kingdom [for short
"UK"] as a citizen. Since about 1987, he and his wife are living in
Canada as citizens. In or about 1964, the petitioner and defendant
Nos.2, 3 and 4, namely, Swarn Singh Kang, Udham Singh Kang
and Avtar Singh Kang, established a business partnership for
trading in food retail under the name and style of "Sandhar &
Kang". In or about 1975, they purchased the property with the title
No.WM65125, situated at and known as 228 and 260 Cheapside,
54 Bradford Street and land and buildings at the North East Side of
Cheapside, North West side of Birchall Street, and South West
side of Bradford Street [hereinafter referred to as the "Property"]
together having quarter share each. It was registered in the legal
estate of the petitioner and defendant Nos.2 to 4. In or about
1976, the partnership business was dissolved and was taken over
by a new company called "Sandhar & Kang Limited" (defendant
No.1) in which the petitioner and defendant Nos.2 to 4 were the
shareholders. In or about 1978, a further property at 24 Chester
C.R. No.4821 of 2010 -3
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Road, New Oscott [hereinafter referred to as the "Chester Road
Property"] was purchased by the petitioner and defendant Nos.2 to
4 in equal quarter share. The said property was also registered in
the legal estate of the petitioner and defendant Nos.2 to 4. It was
alleged that the Property and the Chester Road Property were not
transferred to the company (defendant No.1) and remained
registered in the legal estate of petitioner and defendant Nos.2 to 4
to continue to hold the same as trustees for themselves in equal
shares. In or about 1986, the petitioner and defendant Nos.2 to 4
fell out, the petitioner resigned as a Director and shareholder of the
company and was paid £350,000 for his shareholding in the
company. However, the petitioner remained registered as a holder
of the legal estate in the Property and the Chester Road Property
with defendant Nos.2 to 4 in equal shares. After his resignation,
the petitioner left UK and settled at Canada and obtained
Canadian citizenship. In December 1988, without the knowledge
and consent of the petitioner, defendant Nos.2 to 4 sold the
Chester Road Property by simulating signatures of the petitioner
on the transfer deed and retained the consideration amount which,
according to the petitioner, was of £200,000 and the amount has
not been accounted for. In October 1992, defendant Nos.2 to 4,
without the knowledge and consent of the petitioner, transferred
the Property to the company by simulating his signatures on the
transfer deed. Following that, the Property was registered in the
sole legal title of the company. In the year 2000, the petitioner
returned to the UK and discovered the aforesaid transfers. On his
C.R. No.4821 of 2010 -4
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objection, defendant Nos.2 to 4 through their solicitors produced a
copy of the purported "receipt" for £2000 allegedly signed by the
petitioner on 15.08.1987. It was also alleged that the petitioner
then submitted the documents, namely, i) the Transfer Deed dated
09.12.1988 relating to the Chester Road Property; ii) the Transfer
Deed dated 19.10.1992 relating to the Property; and, the receipt
dated 15.08.1987 for £2000, on which, the Forensic Handwriting
Expert opined that transfer deed dated 09.12.1988 in relation to
the Chester Road Property and transfer deed dated 09.10.1992 in
relation to the Property are the simulations and are not genuine,
whereas copy of receipt for £2000 dated 15.08.1987 could not be
thoroughly examined as the copy was not fit for examination. It
was also alleged that at some time after 2000, defendant Nos.2 to
4, in the capacity of the Directors of the Company (defendant No.1)
applied for Planning Permission for the development of the
Property into private accommodation, by division into apartments,
to which Planning Permission was granted in the year 2006 and in
view thereof, the value of the Property (located in a prime position
in Digbeth, Birmingham) was estimated to be more than
£30,000,000 (thirty million pounds).
On this factual premise, the petitioner had sought the
reliefs i) a declaration that the Property continues to be held on a
resulting and/or constructive trust by the petitioner and defendant
Nos.2 to 4 as trustees for themselves in equal shares; ii) the
Transfer Deed dated 19.10.1992 of the Property in favour of
defendant No.1 was sought to be set aside; iii) an order be
C.R. No.4821 of 2010 -5
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passed that the Land Register relating to the Property be rectified
to show the Property to be in the legal estate and title of the
petitioner and defendant Nos.2 to 4 as tenants in equal shares;
and, iv) for an order for all accounts and enquiries in respect of the
sale of the Chester Road Property and the petitioner also prayed
for various damages.
The action commenced by the petitioner in respect of
Property registered under Land Registry Title No.WM65125 was
contested by the defendants by applying on 29.03.2007 for "1st
High Court Application" for an order that i) there be summary
judgment against the claimant; ii) that the claimant remove or
cancel the notice registered by him from Title No.WM65125; and,
iii) the claimant pay the costs of the action and the 1st High Court
Application on an indemnity basis.
On 03.05.2007, the High Court of Justice issued a
judgment by way of a minute of order (the "Minute of Order")
whereby the petitioner was directed to pay the costs (the "1st
Costs") incurred by the defendants in relation to the 1st High Court
Application to the tune of £20,000 which was paid to the
defendants. On 07.06.2007, the defendants applied to the High
Court (the "2nd High Court Application") for an order that (i) there be
summary judgment against the claimant on its counterclaim for a
declaration that Title No.WM65125 is owned by Sandhar & Kang
Limited; (ii) that the claimant be ordered to withdraw its pending
applications at the Land Registry against Title No.WM65125 and
be prevented from submitting further applications to the Land
Registry to encumber Title No.WM65125; and, (iii) the Claimant
C.R. No.4821 of 2010 -6
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pay the costs of the 2nd High Court Application. On 05.07.2007,
the High Court of Justice issued a judgment by way of an order
(the "High Court Order") directing the petitioner to pay the costs
(the "High Court Costs") incurred by the defendants in relation to
the 2nd High Court Application. The petitioner was ordered to pay
£25,000 as costs to the defendants on account of the High Court
Costs ("Payment on Account"). On 25.07.2007, the petitioner
applied to the Court of Appeal (Supreme Court of UK) [for short
"Court of Appeal"] against the order of the High Court of Justice,
but did not apply for a stay in respect of the Payment on Account.
Leave to appeal was granted on 02.10.2007. On 14.02.2008, the
Appellate Court dismissed the appeal by way of an order ("Court of
Appeal Order") and directed the petitioner to pay costs (Court of
Appeal Costs") incurred by the defendants in relation to the Court
of Appeal proceedings related to the Court of Appeal Order. The
cost was assessed as £25,000 besides interest on the costs as
assessed.
At this stage, it would be relevant to refer to the order
of the High Court of Justice dated 05.07.2007 by which costs of
£25,000 was imposed and also the order dated 14.02.2008 passed
by the Court of Appeal again imposing costs of £25,000, which are
reproduced as under: -
"IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION, BIRMINGHAM
DISTRICT REGISTRY.
BEFORE HIS HONOUR JUDGE SIMON
BROWN QC
THIS 5TH DAY OF JULY 2007
C.R. No.4821 of 2010 -7
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BETWEEN:
KARNAIL SINGH SANDHAR
...Claimant.
-and-
(1) SANDHAM & KANG LIMITED
(2) SWARN SINGH KANG
(3) UDHAM SINGH KANG
(4) AVTAR SINGH KANG
...Defendants.
ORDER
UPON THE HEARING of the First Defendant's application notice of 7 June 2007 AND UPON HEARING counsel for the claimant and leading counsel for the First Defendant.
IT IS ORDERED THAT:
1. There be summary judgment for the first defendant in relation to its counterclaim and the court declares that the claimant has no beneficial interest in Title No.WM65125 ("the Property").
2. The claimant is ordered:
2.1 not to make any further application to the Land Registry to claim any interest in the estate and interest of the First defendant or its successors in title in the property on grounds substantially the same as those relied upon by the claimant in his application to enter a restriction in C.R. No.4821 of 2010 -8
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******* relation to the Property in Form RXI dated 20 December 2006 or otherwise in relation to the property without the permission of the court.
2.2 to execute (by himself or by his solicitors) forthwith and in any event by 4 pm on 6 July 2007, an application to the Registrar to withdraw his application to enter a restriction in relation to the Property in form RXI dated 20 December 2006 in the form attached to this order and marked "A".
2.3 to execute (by himself or by his solicitors) forthwith and in any event by 4 pm on 6 July 2007, no application to the Registrar to withdraw his application to change the register in relation to the Property in form API dated 20 December 2006 in the form attached to this order and marked "A".
3. In the event that the Claimant does not execute both of the documents referred to in paragraphs 1.2 and 1.3 above by 4 pm on 6 July 2007, pursuant to s.39 of the Supreme Court Act, 1981 the court orders that any such document not executed by the claimant may be executed by a person then holding office as a District Judge in this division at this registry, in which even the document so executed shall operate and be for all purposes available as if it had been executed by the claimant. It shall be C.R. No.4821 of 2010 -9
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******* sufficient for these purposes for the First Defendant to produce to a District Judge as aforesaid a sealed copy of this order, a witness statement verifying the Defendant's failure to comply with paragraph 2.2 and/or 2.3 above and a document or documents as appropriate in a form substantially the same as those attached to the order for execution.
4. The Claimant's Particulars of Claim dated 16 March 2007 be struck out.
5. The Claimant is to file and serve any application for permission to file and serve Amended Particulars of Claim against the Second, Third and Fourth Defendants only by 4 pm on 26 July 2007.
6. There be no order as to the costs and incidental to the Claimant's Application Notice of 12 June 2007.
7. Otherwise the claimant is to pay the First Defendant's costs of the proceedings to date on a standard basis.
8. The claimant is to pay the First Defendant a sum of 25,000 pounds on account of his liability for costs under paragraph 7 above.
9. Permission to apply.
Sd/-9.7.07"
"THURSDAY 14TH FEBRUARY 2008 IN THE COURT OF APPEAL ORDER No.5568 ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION C.R. No.4821 of 2010 -10
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7BM30125
BEFORE LORD JUSTICE LAWS
LORD JUSTICE RIX
LORD JUSTICE JACOB
BETWEEN:
KARNAIL SINGH SANDHAR
APPELLANT
-and-
SANDHAR & KANG LIMITED & ORS
RESPONDENT
ON HEARING Judith Jackson QC Counsel for the Appellant and John Randall QC Counsel for the Respondent.
IT IS ORDERED THAT
1) the appeal be dismissed.
2) the Respondent's costs to be summarily assessed at £25,000 including VAT.
3) the Respondents may apply for a third party costs order within 90 days.
4) the Respondent's costs be paid by 4 pm within seven days."
It may also be pertinent to mention that certificate had also been issued by the High Court of Justice under Section 10 of the Foreign Judgments (Reciprocal Enforcements) Act, 1933 [for short "Act of 1933"] in which it was categorically mentioned that "the Court hereby confirms that the whole of the sum outlined in the attached Certificate is due from the Claimant". For the purpose of ready reference, the order dated 22.05.2008 and both the C.R. No.4821 of 2010 -
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certificates issued by the High Court of Justice and the Court of Appeal are being reproduced as under: -
"CLAIM No.7BM30125 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION, BIRMINGHAM DISTRICT REGISTRY BETWEEN:
KARNAIL SINGH SANDHAR ...Claimant and SANDHAR & KANG LIMITED AND OTHERS Defendant
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ORDER
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Before DISTRICT JUDGE ROGERS sitting at the Birmingham District Registry of the High Court of Justice, Chancery Division, Priority Courts, 33 Bull Street, Birmingham B4 6DS on 22 May 2008.
Upon considering an application by the solicitors for the Defendants dated 22 May 2008.
IT IS ORDERED THAT:
1. A Certificate under Section 10 of the Foreign Judgments (Reciprocal Enforcements) Act 1933 be provided; and
2. The Court hereby confirms that the whole of the sum outlined in the attached Certificate is due from the Claimant.
3. There be no order as to costs.
Dated 22 May 2008 Sd/-
DISTRICT JUDGE
ROGERS
22.05.2008."
C.R. No.4821 of 2010 -
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"Form 110
Certificate under Section 10 of the
Foreign Judgments (Reciprocal
Enforcement) Act, 1933.
In the High Court of Justice, Chancery Division, Birmingham District Registry.
Claim No.7BM30125 Caimant Mr. Karnail Singh Sandhar Defendant (1) Sandhar & Kang Limited (2) Swarn Singh Kang (3) Udham Singh Kang (4) Avtar Singh Kang I hereby certify
1. That the claim form, a copy of which is annexed, was issued out of the High Court of Justice, Chancery Division, Birmingham District Registry on 23 March 2007 by Mr. Karnail Singh Sandhar the above named claimant, against (please see the continuation sheet attached) the above named defendant, for declarations and orders in respect of the property with title number WM65125.
2. That the claim form was served on the defendant on 28 March by fax to Hammonds as solicitors for the Defendant.
3. That the defendant acknowledged service of the claim form.
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4. That [no] objection has been made to the jurisdiction of the court.
5. That the Defendant obtained judgment against the Claimants in the High Court of Justice for the removal of a caution registered to Mr. Karnail Singh Sandhar on Title Number WM65125 and that the action by the Claimant against the First Defendant be struck out together with the sum of £25,000.00 for costs.
6. That the judgment carries interest at the rate of 8% per annum calculated on the judgment debt and costs from the date of judgment until payment.
7. That the judgment has been served on the Claimant Mr. Karnail Singh Sandhar in accordance with the provisions of Part 6 the Civil Procedure Rules 1998.
8. That [no application to set aside the judgment has been made].
9. That [an appeal against the judgment has been finally disposed of and dismissed].
10. That enforcement of the judgment is not for the time being stayed or suspended, that the time available for its enforcement has not expired and that the judgment is accordingly enforceable.
11. This certificate issued under [Section 10 of the Foreign Judgments (Reciprocal Enforcement) Act, 1933].
Signed District Judge Rosers Dated:22.5.08."
"Form 110 C.R. No.4821 of 2010 -14
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Certificate under Section 10 of the
Foreign Judgments (Reciprocal
Enforcement) Act, 1933.
In the Court of Appeal on appeal from the High Court of Justice, Chancery Division, Birmingham District Registry.
Claim No.7BM30125 Caimant Mr. Karnail Singh Sandhar Defendant (1)Sandhar & Kang Limited (2)Swarn Singh Kang (3)Udham Singh Kang (4)Avtar Singh Kang I hereby certify
1. That the claim form, a copy of which is annexed, was issued out of the High Court of Justice, Chancery Division, Birmingham District Registry on 23 March 2007 by Mr. Karnail Singh Sandhar the above named claimant, against (please see the continuation sheet attached) the above named defendant, for declarations and orders in respect of the property with title number WM65125.
2. That the claim form was served on the defendant on 28 March by fax to Hammonds as solicitors for the Defendant.
3. That the defendant acknowledged service of the claim form.
4. That [no] objection has been made to the jurisdiction of the court.
C.R. No.4821 of 2010 -
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5. That the Defendant obtained judgment against the Claimant in the High Court of Appeal for removal of a caution registered to Mr. Karnail Singh Sandhar on Title Number WM65125 and that the action by the Claimant against the First Defendant be struck out together with the sum of £25,000.00 for costs.
6. That the judgment carries interest at the rate of 8% per annum calculated on the judgment debt and costs from the date of judgment until payment.
7. That the judgment has been served on the Claimant Mr. Karnail Singh Sandhar in accordance with the provisions of Part 6 the Civil Procedure Rules 1998.
8. That [no application to set aside the judgment has been made].
9. That [an appeal against the judgment has been finally disposed of and dismissed].
10. That enforcement of the judgment is not for the time being stayed or suspended, that the time available for its enforcement has not expired and that the judgment is accordingly enforceable.
11. This certificate is issued under [Section 10 of the Foreign Judgments (Reciprocal Enforcement) Act, 1933].
Signed District Judge Rosers Dated:22.5.08."
That after the aforesaid orders passed by the Courts at UK, the respondent/decree-holder filed an execution in the Court at Ontario, Canada as the petitioner is a citizen of Canada. The said C.R. No.4821 of 2010 -
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execution is pending but no recovery could have been effected. At the same time, Ms. Ann Benzimira, Partner with the law firm Hammonds LLP, acting for the respondent, filed an affidavit to the effect that nothing could be recovered from the petitioner even at UK.
Litigation between the parties on execution in India On 11.06.2008, the respondent filed an execution in the Court of learned District Judge, Sangrur for execution of the decrees to recover costs of £50,000 as the property of the petitioner is situated at Sangrur. On 20.11.2008, learned District Judge dismissed the application for execution on the ground of its maintainability observing that the orders sought to be executed are not passed on merits and in terms of Section 13(b) of the Code of Civil Procedure, 1908 [for short "CPC"] such foreign judgments were not found to be conclusive and, thus, unenforceable in India. The said order dated 20.11.2008, however, was set aside by this Court in Civil Revision No.577 of 2009 on 05.02.2010 and the matter was remitted back to the Court of District Judge, Sangrur for adjudication afresh. Pursuant to the order of this Court dated 05.02.2010, the petitioner filed an application dated 18.02.2010, inter alia, alleging that a simultaneous application for execution is not maintainable in view of the fact that the respondent has already filed an execution in the Court at Ontario, Canada. The learned District Judge, Sangrur, vide its impugned order dated 26.02.2010 rejected the plea raised by the petitioner and held that the application for execution of the foreign judgments is maintainable.
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Present Revision Petition
The petitioner has challenged the impugned order dated 26.02.2010 before this Court by filing present revision petition on the following 3 points: -
(i) whether a foreign judgment, not delivered on merits of the case, is not conclusive to the matter between the parties and unexecutable in terms of Section 13(b) of the CPC.
(ii) Whether a judgment under which a sum of money is payable in respect of costs is enforceable in view of Explanation (II) to Section 44-A of the CPC.
(iii) Whether two simultaneous execution applications are maintainable?
Elaborating the first point, Shri Arun Jain, learned Senior counsel appearing on behalf of the petitioner, has submitted that the order of the High Court of Justice is not a judgment on merits because there was no trial of the claim set up by the petitioner as neither issues were framed nor evidence was led, rather the judgment has been passed on an application filed by the respondent(s) for summary judgment; or in the alternative, for causing the notice registered on 21st December 2006 to be removed; and thirdly, alteration of the register by removing or cancelling the notice. It is submitted that the question of fraud having been perpetuated at the instance of the respondent(s) upon the petitioner was not adjudicated upon and, therefore, the judgment in terms of which the costs has been imposed cannot be called a judgment on merits and is, thus, unexecutable in India in terms of Section 13(b) of the CPC. In support of his argument, he C.R. No.4821 of 2010 -
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has relied upon two decisions of this Court in the case of International Woollen Mills (M/s.) Vs. Standard Wool (U.K.) Limited (M/s.), 2000(2) RCR (Civil) 249 and in the case of Gurdas Mann and others Vs. Mohinder Singh Brar, AIR 1993 (P&H) 92.
In reply to the aforesaid argument, Shri M.L.Sarin, learned Senior counsel appearing on behalf of the respondent, has submitted that trial is not necessary to decide a case on merits nor issues are required to be framed and the evidence is also required to be led by the parties. He further submitted that the language used in Section 13(b) of the CPC is the "decision on merits" and not "decision on merits after a trial". He has also drawn the attention of the Court to the orders passed by the High Court of Justice to contend that it was practically an order passed on merits of the controversy between the parties as the learned Judge has discussed the evidence available on record. First of all, he has referred to the order passed by Justice Simon Brown QC of the High Court of Justice dated 01.05.2007, in which it was observed: -
"the claimant says this is a forgery, that he was out of the country at the time and that his signature is not on the document. That is the second point upon which he relies and a lot of focus has occurred in this case. What I must do, and I have been directed to, is to look at the evidence that has been presented before me in the Court and to piece together the pieces of the jigsaw to see if I can make some sense of it."
C.R. No.4821 of 2010 -
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"more importantly, when we look at the accounts that have been prepared - and these are audited accounts by Reeves & Co. going back some time now - one can see in those accounts of the company that the freehold property is in those accounts as the fixed assets of the company. They are in, the books at £174,357. At that time, what is recorded in those accounts - and they would have to be approved by him - is the claimant's name. He was one of the equal shareholding directors who received a salary in those accounts. They are simple accounts which have been prepared by Reeves & Co., giving the usual auditor's declaration to be found that they gave a true and fair view. That is the representation to all the public bodies, including the Inland Revenue, Companies House and the world, and they are signed off (which is important) by a professional independent person.
So, I am satisfied that they give a true and fair view, and it is the true and fair view as was understood, quite clearly, by the claimant at that particular time. He says in his evidence, which I have read, that this was effectively to beef up the company."
"What then happened was that eventually, in 1986, the claimant resigned as a director of the company. In 1987, he and his wife sold their shares in the company in full and final settlement. I am satisfied, from looking at the accounts of the company, that the company's shares were valid to include the C.R. No.4821 of 2010 -20
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property. Therefore, his interest in the
property via the company was compromised on that day by he and his wife's receipt subsequently of £304,000 together. So, in my judgment, his interest in the company and the relevant property was finished on that particular day."
"He said that he returned to the country from Canada in 2000 and discovered the transfers referred to in paragraphs 18 and 20 therein. That is the basis of the allegation of fraud. It does not identify fraud; it just identifies there has been a forgery, and it does not particularize who is responsible for it. This is significant in this particular case for a number of reasons, but two in particular. One is that he said he discovered these matters in 2000 when he returned, but it is noteworthy that we are now 2007. Whilst it is true that he did claim a caution on 3rd October 2002, that was two years later, and he claimed a quarter beneficial interest in the property. But it is also significant that two months later his cancellation of the caution was confirmed after having been warned off. So there was another gap of five years which is not adequately explained if it was a genuine claim."
Mr. Sarin has also referred to the ultimate order passed on 05.07.2007 by Justice Simon Brown QC, in which he has observed that: -
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"9. So I have to look at this case,
therefore, in the round as well as looking at some of the important elements to it, and it is right to say that in this case quite a lot of evidence has been put in, particularly by the Claimant, and the evidence which is in his witness statements, as has been pointed out by Mr. Randall, is quite contradictory at times and is unclear. What is perfectly plain, and it comes out from the very helpful chronology which has been prepared by Mr. Wyvill, that this particular matter begins effectively on 25th March 1976 and that document which is in the bundle at page 74, which I referred to on the previous occasion, is quite clear in my judgment in what it says. It is a transfer of the whole and it says: "Thee purchasers agree ..." And they are identified "....they are tenants in common in equity. The property shall be held as part of their partnership property." And the property here is the one we are dealing with and it is quite clear that that was what was intended by each of them, including the Claimant. It was in those circumstances partnership property and that delineates it from being the property of the individuals."
"11. What then happened was that Mr. Reeves, who was the company accountant became involved and I have no doubt from reading his statement that he was a very thorough and careful accountant and have given good advice in his dealings with the C.R. No.4821 of 2010 -22
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company. The accounts support this
reading of events. If we look at the
accounts which are in the bundle attached to his witness statement we can see quite clearly in the statement of the accounts from the period of July 1976 to July 1977 there is identified in the fixed assets of the company the freehold property amounting then of £174,357. There are also directors' loan accounts; there is also a bank loan account; and it is quite apparent from these documents, piecing them together quite clearly, as Mr. Randall has helpfully done today, is that the £170,000 was used as a loan by the company to purchase this particular property. It therefore became the property of the company not the property of the individuals."
"13. What then happened was that in the scheme of things there was apparently a parting of the ways between the Claimant and the other members of his family and what then happened was that they had to deal with the valuation of his shares in the company. This happened in 1987 in July. There was a share sale agreement, which was executed and it was one which was executed as a full and final settlement of the matter. Mr. Reeves (I have the benefit of his handwritten document and I have the benefit of a typed up version) actually back in January of 1987 worked out the value of the shares. He worked out the value of a quarter share at £349,000 - there had been C.R. No.4821 of 2010 -23
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some horse trading about it and the claimant had wanted more but eventually that was the sum that was agreed upon. It includes the property and actually that was one of the main elements of value in the company."
"19. This is the only course of action open to me, I cannot give further directions and order the registrar or the adjudicator but I can give an injunction against the Claimant because he does have the power to withdraw his notice, and that is what I hope will take place."
Besides the aforesaid order, Mr. Sarin has also made a reference to the observations of the order of the Court of Appeal of UK, which are reproduced here as under: -
"11. The basic facts are quite simple. The four individuals were partners in a business in Birmingham in the mid-70s dealing as a cash and carry selling groceries. They had got some properties from which the business was running. Some were sold and the Property was bought. It was substantial and in due course was let in part to other people, particular companies identified in the evidence. We are concerned with what happened when it was bought. It was bought in the names of the four individuals. It is worth recording, however, that when he first started his case Mr. Sandhar asserted something quite different as to the source of the money, namely that it was bought with assets of the four individuals. He also said C.R. No.4821 of 2010 -24
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it was held on a resulting trust. In fact when the document showing it was clearly bought by the four individuals on an express trust was produced he changed his position. That was the first of a number of matters which makes one question the value of his evidence.
12. SKL's case is simple: that when the Property was purchased it was part of the partnership's assets, and the whole partnership and all its assets went over to the company when it was formed; and this was all done on the advice of the company's accountant who has given evidence in this case, a Mr. Reeves. He says he so advised them and that is what they did. The claimant's case is "ah no, everything went over to the company except the Property." It is an odd assertion, on its face, because it would mean the company had no security of tenure as a company. There were no arrangements about any rent to be paid to the individuals and nothing about this separate arrangement is set out in writing."
"18. In 1986 the parties fell out and Mr. Sandhar left the company. The detailed explanations are in the documents but I do not think they matter. The important thing is that there was a settlement agreement by which he was to be paid £350,000 for the value of his shares. And that sum was calculated on the basis that the company's assets included the Property. Mr. Sandhar C.R. No.4821 of 2010 -25
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says "Not so" in his own mind that was not the position. In this second witness statement he went further and said it was expressly agreed the Property was to be continued to he held separately. Well, that is a fairly fantastic assertion. He was leaving the country. He was, on this account, entitled to a quarter of the Property which was being used by the company. Yet nothing was discussed about what the company would pay him for the use of this important asset.
19. I would add this: in the years in between the company had paid for the maintenance of the buildings. I had received income from a tenant, as I mentioned earlier, all of which it had retained and none was paid to any of the individuals. I will also add that all the individuals made tax returns on the basis that they did not own the Property. It was the same accountant who is responsible for their tax returns as for the company's tax returns, Mr. Reeves.
20. If one stands back and thinks a little more about that position in 1987 one is made even to wonder a little more about the suggestion that Mr. Sandhar owned a quarter. If he did, why was he not to receive any rent? Why at least did nobody mentioned any rent? When if ever was he to get his share? Was he entitled to ask for a sale of the Property? That would have meant striking at the very heart of the C.R. No.4821 of 2010 -26
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company's business. The case he makes simply does not add up.
21. He faces a further point, which he seeks to turn to his advantage, that there is actually a document which effects a transfer of the Property to the company in 1992. He says that is a forgery, that he never entered into any such document. He said the same about a property known as Chester Road, which was dealt with commercially and sold earlier. A report has been obtained from a man who claims to be a handwriting expert. It is a little odd in that it does not comply in any way with the rules of court and, as a matter of fact, has not formally been put into these proceedings except as an exhibit. He has not made a witness statement in these proceedings. The exhibit does challenge the authenticity of the signatures on the 1992 document."
"23. I see the force of that. But there is an answer. Firstly, the expert witness's evidence also asserts that a document relating to the Chester Road property is also a forgery. Yet there is a witness to its being executed, an independent witness apparently. So the case which Mr. Sandhar has got to run is that there are not only the three dishonest brothers but others drawn into the web. He already suggests that Mr. Reeves, retired since 1991, is part of it all. I think he is bound to say also that the witnesses to the execution of the Chester C.R. No.4821 of 2010 -27
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Road document and the transfer of the Property were dishonest too.
24. This is wholly improbable. The judge, perhaps quite sensibly, decided not to go into the question of the forgery. He decided that, looking at the material before the date of the alleged forgery that it is inevitable that the Property belongs to the company beneficially."
It is submitted by the learned counsel for the respondent that from a thorough reading of the orders passed by the High Court of Justice and also the Court of Appeal at UK, there is no doubt left about the decision having been rendered by the said Courts on merits of the case, even if it is in their summary jurisdiction. Further, he supports his argument by referring a Division Bench judgment of the Delhi High Court in the case of Mr. Navin Khilnani Vs. Mashreq Bank psc., 146(2008) DLT 134 and a decision of the Bomby High Court in the case of Janardhan Mohandas Rajan Pillai and another Vs. Madhubhai Patel and others, AIR 2003 BOMBAY 490.
I have heard both learned counsel for the parties on the first point raised by learned counsel for the petitioner and perused the record, provisions of law and also the judgments relied upon.
Before adverting to the respective contentions of both learned counsel for the parties, it would be worthwhile to refer to the provisions of Section 13 of the CPC, which reads as under: -
"13. When foreign judgment not conclusive. - A foreign judgment shall be conclusive as to any matter thereby directly C.R. No.4821 of 2010 -28
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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 [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 [India]."
No doubt, Section 13(b) provides that a foreign judgment shall be conclusive as to any matter thereby directly decided between the parties but there are certain exceptions which are provided in Clause (a) to (f) in which Clause (b) provides that a judgment shall not be conclusive if it is not rendered on the merits of the case. The question thus arises as to whether the judgments rendered by the High Court of Justice and Court of Appeal at UK are the judgments not on the merits of the case, even if by the said judgments the Courts have found the claim of the petitioner to be not worth triable and have rejected the claim in their summary jurisdiction. The answer is not far-fetched to reach but before that, C.R. No.4821 of 2010 -
29
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it would be relevant to refer to the judgments relied upon by learned counsel for the petitioner. The case of International Woollen Mills (M/s.) (supra) pertains to an ex-parte decree by a foreign court. While the execution was filed at London, the objection was raised that the decree of the Court at London was unexecutable in terms of Section 13(b) of the CPC as it was not passed on merits being an ex-parte decree. This Court, while discussing in para 15 of its judgment, observant that "a perusal of the above order does not give an impression that the judgment was rendered by the learned Judge of the London Court after discussing the evidence adduced by the plaintiff before him." Thus, in the said case, this Court had formed an opinion that even while passing an ex-parte decree the evidence available was not discussed by the learned Judge at London and hence it was not found to be an adjudication on merits. To my mind, this judgment is not applicable to the facts of the present case because in the present case, as I have narrated hereinabove in short the various findings of the High Court of Justice and the Court of Appeal at UK, the decision has been given after discussing the evidence available on record and on the basis of which it was found that the petitioner had already snapped his relations with the respondent(s) inasmuch as he had left the UK for Canada and obtained Canadian citizenship, after settling his accounts as per the settlement of accounts given by the Reeves company. Therefore, the decision in the case in hand was on merits. Insofar as the case of Gurdas Mann and others (supra) is concerned, that was also a decree C.R. No.4821 of 2010 -
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passed ex-parte. In the said case, it was found that neither oral nor documentary evidence was produced by the plaintiff. Therefore, it was held that the decree which was sought to be executed was not on merits. The relevant paragraph of the aforesaid judgment in the case of Gurdas Mann and others (supra) is reproduced as under:-
"7. A reading of the judgment of the foreign Court shows that the defendants, now petitioners had been properly served but they chose not to appear and were, therefore, proceeded ex-parte. The Court thereafter on reading the pleadings and hearing the evidence and the submissions of counsel for the plaintiff, decreed the suit for recovery of $72,816.16 together with interest at the rate of thirteen per cent per annum commencing from April 18, 1984. From the judgment quoted above, it is abundantly clear that it is an ex-parte decree. A reading thereof does not show that the plaintiff produced some evidence, either oral or documentary, before the passing of the decree. On persistent asking, the learned counsel for the respondent was unable to point out any evidence, oral or documentary which was produced before the Supreme Court of Ontario before the said Court passed the decree. The learned counsel by reference to "on reading the pleadings and hearing the evidence" was at pains to contend that the decree though ex-parte, was on the merits of the case and the use of words C.R. No.4821 of 2010 -31
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"hearing the evidence" is clearly indicative of the fact that the evidence was led."
Thus, in my view this judgment relied upon by learned counsel for the petitioner is not applicable.
Now the question arises whether the judgments relied upon by learned counsel for the respondent are applicable to the facts of the present case. In this regard, the first judgment, which needs to be noticed, is in the case of Mr. Navin Khilnani (supra) in which instances were also quoted where a judgment would not be a judgment on merits, which are reproduced as under: -
"a) In a summary suit, the defendant does not appear and treating the averments made in the suit as correct, the judgment and decree is passed.
b) Again in a summary suit, if the application for leave to contest the suit is not filed and due to this default, the judgment is pronounced and decree passed treating the averments made in the plaint as correct.
c) In an ordinary suit, the defendant does not appear and an ex-parte decree is passed without recording the evidence and only on the basis of averments made in the plaint supported by the affidavits filed in support of the plaint.
d) In a situation akin to Order 8 Rule 10 CPC of the Indian Code of Civil Procedure. This would arise when inspire of repeated opportunities given to the defendant, he defaults by not C.R. No.4821 of 2010 -32
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filing the written statement and the decree is passed under Order 8 Rule 10 CPC without directing the plaintiff to prove the case by leading evidence."
The Division Bench has further held that: -
"Thus, when in a summary suit, judgment is given by default, it is not a judgment on merits. However, if the application for leave to defend the suit is filed i.e. dismissed by detailed speaking order holding that no triable issue was raised and, therefore, the plaintiff was entitled to judgment and decree straightaway and if was not a case where evidence was required in the absence of any triable issue, can it still be said that it is not a judgment on the merits of the case? We are of the opinion that the Supreme Court in the case of International Woollen Mills v. Standard Wool (U.K.) Ltd. (supra) has not gone to the extent of holding that even such a judgment shall not be on the merits of the case. The judgments of the High Courts which are approved by the Supreme Court in the aforesaid case relate to those cases which were rendered ex-parte and the ratio which is laid down is that if the ex- parte judgment is given by default and when evidence of any kind, it would not be a decision on the merits. On the other hand, even an ex-parte case if the evidence is led, it would be a judgment on merits. Of course Ram Chand v. John Bartlett (1909) 3 IC 523, was one case C.R. No.4821 of 2010 -33
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where judgment was given following
summary procedure. However, the facts of that case would show that the defendant remained ex-parte and the defendant did not appear, judgment was pronounced. That was not a case where appearance was entered and application for leave to contest was filed and the Court refused to grant the leave after discussing the merits of the case.
We are, therefore, of the opinion that in those cases where suits are tried under summary procedure, leave to defend application is filed but by passing speaking orders the Court has refused to grant the leave to defend and that would be a decision on the merits of the case. Even in International Woollen Mills v. Standard Wool (U.K.) Ltd. (supra), the Court has observed that when the decision is given after due application of mind of the Court to the truth or falsity of the plaintiff's case and after judicial consideration that would be a judgment on merit. The test laid down is as to whether "it was merely formally passed as a matter of course or by way of penalty or it was based on the consideration of the truth or otherwise of the plaintiff's claim".
Whereas it would not be a judgment on merit if it is merely formally passed as a matter of course or by way of penalty, it would be a judgment on the merits if it is passed on the consideration of the truth or otherwise on the plaintiff's claim.
C.R. No.4821 of 2010 -
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At this stage, let us deal with the manner in which case at hand was decided by the court in England. Leave to defend application was filed by the judgment debtor. However, he did not appear thereafter. Nevertheless, the Court has not dismissed the application leave to defend of the judgment debtor in default and proceeded with the passing of the decree. It has discussed the various submissions made by the judgment debtor in his application but has not found favour with them and, therefore, the decree is passed. Situation is like the one where the Court has opined that there are no triable issues and the plaintiff is entitled to the decree. At the same time, the decree is passed in a summary manner. The decree holder was not required to lead any evidence. Thus, on the one hand, while the decree is not passed without discussing the merits of the defense, on the other hand, the decree holder was not required to produce any evidence. The foreign judgment runs into 15 odd pages and
i) sets out the facts i.e. the nature of the claim.
ii) nature of the defence put in, though not pursued.
iii) notices that in the defence no formal or substantive flaw in the documentation or the claim under the documentation was found.
iv) finds that only defence was that the defendant in the foreign Court and the appellant before this Court was induced to enter into the guarantee, on the basis whereof the claim was made against him in the foreign Court.
C.R. No.4821 of 2010 -
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v) finds the said defence of having been induced to enter
into guarantee by misrepresentation and undue
influence to be not good for the reason of the defendant before the foreign court and the appellant herein, being as much as interested in the business of the company for financial assistance, he stood as guarantor, as his brother under whose undue influence he claimed to have given the guarantee.
vi) considers the affidavits, evidence given by the plaintiff before the foreign court and the respondent herein.
vii) summarizes the position emerging from the various facts and from the conduct of the parties.
viii) notices that the defendant before the Foreign Court and the appellant herein is an MBA and is a business man and well understanding of facets of business.
ix) analyzes its law as to trust and confidence.
x) further notices the evidence summarized but which is stated to be voluminous.
xi) in the circumstances, holds the defendant liable to pay the monies claimed.
Therefore, such a judgment should be treated as judgment given on merits. It was, therefore, not a case where the judgment was on 'default judgment' i.e. pronounced only because of non appearance of the judgment debtor. If the contention of the appellant is accepted then in a case decided under the summary procedure, even after due consideration of the defense put forth by the defendant and finding it to be sham and moonshine, it would not be a judgment on merits. That would be travesty of justice. How the plaintiff is expected to lead evidence when the defendant has not been able to show C.R. No.4821 of 2010 -
36
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any triable issue. Therefore, we are of the opinion that in the case of International Woollen Mills v. Standard Wool (U.K.) Ltd. (supra), wherever the reference has come that the decision passed "without evidence"
would not be a decision on the merits, that would not include cases under summary procedure when leave to defend application is dismissed and Court comes to the conclusion, after detailed analysis of the respective contentions, that it is not a case which even requires any evidence.
Of course even those cases under summary procedure where the judgment is by default namely because of non appearance and it was merely formally passed or by way of penalty namely where the defendant does not move application for leave to defend, the judgment would be not be on the merits of the case."
After examining the judgments of the High Court of Justice and Court of Appeal of the U.K. as well as the judgments relied upon by learned counsel for the respondent, I have found that the balance tilts in favour of the respondent and it is held that the judgment passed by the High Court of Justice and the Court of Appeal of the U.K., which are sought to be executed in the present case, were judgments on merits and it is also held that in order to decide a case on merits in a case which is decided under summary procedure after considering the evidence available on record led by the parties, it would be a decision on merits to be covered under Section 13(b) of the CPC.
C.R. No.4821 of 2010 -
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The second point raised by learned counsel for the petitioner is that as per Explanation II to Section 44-A of the CPC, the decree with reference to a superior Court would be with regard to a sum of money payable and not in respect of taxes or other charges or in respect of fine of other penalty. Shri Jain has submitted that the decree which is sought to be executed at Sangrur is in respect of costs of an amount of £50,000 which has been imposed upon the petitioner by the superior Court of U.K. which is a part of fine or at the most penalty and as such excluded from execution in terms of Explanation (II) to Section 44-A of the CPC. In this regard, he has submitted that fine is generally levied in the criminal proceedings, whereas penalty for the civil wrong includes costs imposed by the Court. It is thus submitted that the costs by itself being a part of the other penalty cannot form part of the decree. At this stage, it is categorically mentioned that no precedent has been cited by Shri Jain in support of this argument.
On the other hand, Shri Sarin has submitted that the word "costs" is conspicuous by its absence in the Explanation (II) to Section 44-A of the CPC, therefore, it cannot be read as fine or other penalty. He has also submitted that Section 44-A was inserted in the CPC by the Code of Civil Procedure (Amendment) Act, 1937 [for short "Act No.VIII of 1937"] which was enacted after the enforcement of Act of 1933. He has further urged that Section 10 of the Act of 1933 and Section 44-A of the CPC are somewhat similar and had the costs were not a part of the decree and unexecutable, the superior Courts of U.K. would not have issued C.R. No.4821 of 2010 -
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the certificates of recovery as provided under Section 44-A(2) of the CPC. He also relied upon a decision of the Bombay High Court in the case of Janardhan Mohandas Rajan Pillai and another (supra) to contend that the cost is a part of decree.
I have heard both learned counsel for the parties in detail on the second point raised by learned counsel for the petitioner.
Before appreciating their respective submission, it would be relevant to refer to Section 44-A of the CPC, which reads as under: -
44-A Execution of decrees passed by Courts in reciprocating territory. -(1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in [India] as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls C.R. No.4821 of 2010 -39
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within any of the exceptions specified in clauses (a) to (f) of Section 13.
Explanation I.--"Reciprocating territory"
means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and "superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.
Explanation II.--"Decree" with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment."
The import of Section 44-A of the CPC is that where a superior Court of a reciprocating country has passed a decree which that can be executed in India as has been passed by a District Court, the decree holder has to file a certificate of the superior Court of the amount which is sought to be recovered which shall be executed by the District Court but for two explanations provided in Explanations I and II. Explanation II, which is in question, provides that decree has to be for a sum of money payable. According to Shri Jain, a sum of money payable should be considered to be a money decree and not an order of the superior Court imposing costs which according to him, falls within C.R. No.4821 of 2010 -
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the ambit of other penalty and is irrecoverable by virtue of execution in India. The origin of Section 44-A is also to be noticed. Needless to mention that the certificate of the superior Court, which I have reproduced in the beginning of the judgment, is issued under Section 10 of the Act of 1933 which is a U.K. Legislation. Section 10 of the Act of 1933 reads as under: -
"10. Provisions for issue of copies of, and certificates in connection with, U.K. judgments:
(1) Rules may make provision for enabling any judgment creditor wishing to secure the enforcement in a foreign country to which Part I of this Act extends of a judgment to which this subsection applies, to obtain, subject to any conditions specified in the rules--
(a) a copy of the judgment; and
(b) a certificate giving particulars relating to the judgment and the proceedings in which it was given.
(2) Subsection (1) applies to any judgment given by a court or tribunal in the United Kingdom under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty.
(3) In this section "rules"--
(a) in relation to judgments given by a court, means rules of court;
(b) in relation to judgments given by any other tribunal, means rules or regulations made by the authority C.R. No.4821 of 2010 -41
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having power to make rules or regulations regulating the procedure of that tribunal."
It is pertinent to mention here that Section 44-A came into being in the CPC by virtue of Code of Civil Procedure (Amendment) Act, 1937. A close reading of Explanation (II) to Section 44-A of the CPC and sub-section (2) of Section 10 of the Act of 1933 of the U.K. would show that the language is far or less same. There also, the decree would be in respect of a sum of money payable and not in respect of taxes, other charges, fine or other penalty.
The question then arises as to whether the costs which is conspicuously missing in both the provisions of Section 10 of Act of 1933 and Section 44-A of the CPC would mean fine or other penalty and is not available for the purpose of execution as a foreign judgment in the Court in India. In this regard, the judgment rendered by the Bombay High Court in the case of Janardhan Mohandas Rajan Pillai and another (supra) would be helpful because in the said case also the dispute was with regard to the award of costs and it was held that it can be recovered by way of execution in India. The words "fine", "penalty" and "costs" have different connotations. In the CPC, costs are provided under Section 35, 35-A and 35B. Section 35-A specifically deals with cost on false or vexatious claims or defences. If the Legislature intended to include costs, then there would have been a specific mention in Explanation II that the decree would also not be executable in respect of fine or other penalty and costs but it C.R. No.4821 of 2010 -
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appears that Section 44-A of the CPC has been borrowed from Act of 1933 in which also the word costs is not there. There is no doubt left to presume that intentionally the word "costs" was not made part of either sub-section (2) of Section 10 of the Act of 1933 or Explanation II to Section 44-A of the C.P.C. as an exception to the decree.
Hence, in view of the aforesaid discussion, I decide the second point in favour of the respondent and against the petitioner and I hold that costs imposed by a foreign Court is a decree which can be executed in the Court in India under Section 44-A of the CPC.
The third and last point raised by learned counsel for the petitioner is that there cannot be two simultaneous execution applications. In this regard, he has submitted that the respondent is carrying out execution at Ontario in Canada and has also filed execution at Sangrur in India. Although learned counsel for the petitioner has failed to refer to any provisions of the CPC which debars filing of simultaneous execution, yet he has submitted that there is also no enabling provision. It is further submitted that in the absence of any enabling provision, simultaneous execution in two Courts is not maintainable.
In reply, Shri Sarin, learned counsel for the respondent has relied upon a Division Bench judgment of the Allahabad High Court in the case of Om Parkash Vs. Sm. Tahera Begam and Ors., AIR 1955 AII 382 and a judgment of the Delhi High Court in the case of Oakwell Engineering Ltd. Vs. Enernorth Industries C.R. No.4821 of 2010 -
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Inc., decided on 29.08.2006 in E.A. No.385/05 in Execution Petition No.22 of 2005, reported as MANU/DE/9011/2006.
I have heard both learned counsel for the parties and perused their submissions carefully on the third point as well.
A somewhat similar dispute had arisen before the Allahabad High Court in the case of Om Parkash (supra) wherein the objection was raised that in view of Order 21 Rules 11 (2) Clause (f) of CPC, the decree holder has to mention in the execution application as to whether any, and (if any) what, previous applications have been made for the execution of the decree, the, dates of such applications and their results to mean that so long as one execution application has not been finally disposed of no second execution application can be filed as a result of which this provision of the CPC operate as a bar to the presentation of a second execution application during the pendency of the first execution application. While interpreting the aforesaid Order 21 Rule 11 (2) Clause (f) of the CPC, the Division Bench of the Allahabad High Court has held as under: -
"3. There is nothing in the Code of Civil Procedure or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously and it appears to us that unless such a right to apply for execution of a decree in any of the modes permissible by law is not definitely restricted such a bar should not be inferred from the requirements of the contents of an application for execution. The bar to a certain legal right C.R. No.4821 of 2010 -44
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should be clearly laid down by statute and is not to be inferred. In a case where it is to be inferred there should be no other conclusion possible except the conclusion that the other provisions necessarily imply that such a bar should come in existence. There is nothing in the provisions of Order 21, Rule 11(2), clause (f) to lead to such an inference. In fact it is clear that the requirements of this clause cannot be complied with with respect to the result of the previous execution application in case simultaneous applications for the arrest of the judgment- debtor and for the realisation of the decretal amount by attachment of property were made and to which type of applications no objection is raised or suggested by the learned counsel for the appellant. There is no exception mentioned in Rule 11 with reference to the applications which may come under Rule 30 of Order 21, Civil P.C. It must follow, therefore, that the provisions of Rule 11(2), Clause (f) do not mean that in case the result of a previous application cannot be noted on account of its not coming to an end the non-mentioning of the result would either make the application bad in law or must lead to the result that the second application must be considered to be barred by law during the pendency of the previous application."
"5. We are, therefore, of opinion that it cannot be held that the provisions of Order 21, Rule 11(2), Clause (f), Civil P.C. bar simultaneous execution applications. The C.R. No.4821 of 2010 -45
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case law on the point fully supports the view that several execution applications can be in progress at one & the same time. We may refer to the cases reported in - 'Sarasti Prasad v. People's Industrial Bank Ltd.', AIR 1917 All 129 (A); -- 'Makkhan Lal v. Mt. Bhagwanai Kuer' MANU/UP/0230/1936: AIR 1936 All 655, and -'Morarjee Gokuldas and Co. v. Shoiapur Spinning and Weaving Co.
Ltd.' AIR 1941 Bom 37 CO.(8). We, therefore, dismiss this appeal summarily."
Similarly, in the case of Oakwell Engineering Ltd. (supra), there was a decree passed by Singapore Court for recovery of a particular amount. The decree holder had filed an execution petition in the Court at Ontario and simultaneously filed an execution application under Section 44-A of the CPC in India for execution of the said decree delivered by the Singapore Court. The Delhi High Court had observed that "the conspicuous fact in this connection is that the judgment debtor does not say that any part of the decree in execution before this Court has been realised by the decree holder." The Delhi High Court has held that: -
"15. The Court should see that the decrees passed are actually translated into amounts realised. The duty of the Court is not over by merely passing a decree, therefore, execution proceedings should get as much attention of the Court as the suits do. In Cholamandalam Investment and Finance Co. Ltd. v. CEC Ltd. And Anr. 1996 II AD (Delhi) 517 this Court specifically said that there is no provision in the Civil Procedure Code which prevents simultaneous C.R. No.4821 of 2010 -46
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execution of a decree by two courts. While coming to this conclusion, the Court examined various previous judgments on the question and took support from the judgment of the Supreme Court in the case of Prem Lata Agarawal v. Lakshman Prasad Gupta and Ors. MANU/SC/0022/1970.
16. Last point left to be mentioned is the requirement of a certificate from the Court passing the decree stating the amount recovered, if any. Section 44A of the CPC says that a certificate from the Court passing the decree would be the conclusive proof of the amount recovered. The decree holder has not obtained any such certificate from the High Court of Republic at Singapore. Does it mean that this Court is precluded from executing the decree? The answer certainly is `No'. Had a certificate been brought, that would have been the conclusive proof of the amount realised."
Accordingly, the third point is also decided against the petitioner and in favour of the respondent and it is held that there is no bar in seeking simultaneous execution in two courts specially when the decree holder has stated that nothing has been recovered from the execution filed in the other Court as in the present case, the solicitors of the respondent has specifically stated that nothing has been recovered from the judgment debtor in execution in Canada.
The upshot of the entire discussion results into dismissal of this revision petition which I order accordingly. The parties shall bear their own costs.
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September 10, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE