Gujarat High Court
Arun Kumar Jagatramka vs Ultrabulk A/S on 13 March, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi, Rajendra M. Sareen
NEUTRAL CITATION
C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5890 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 21283 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
======================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
ARUN KUMAR JAGATRAMKA
Versus
ULTRABULK A/S
======================================
Appearance:
Mr. PERCY KAVINA, SR. ADVOCATE, LD. COUNSEL assisted by
MR VIVEK B GUPTA(5611) for the Petitioner(s) No. 1
MR DEVANG NANAVATI, SR. ADVOCATE, LD. COUNSEL assisted
by MR HARSH N PAREKH(6951) for the Respondent(s) No. 1
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 13/03/2024
Page 1 of 75
Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION
C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024
undefined
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI) Since both these petitions arise out of orders passed by executing Court, between the same parties, and more or less involving the same issue, it is thought fit to determine the same by this common judgment and order.
SUBMISSIONS IN SCA NO. 5890 OF 2021
1. This petition is filed by the petitioner - judgment debtor challenging the order passed by Principal Senior Civil Judge, Jamnagar, dated 20.02.2021 below Exhibit-56 in Regular Execution Petition (Commercial) No. 161 of 2019 filed by the decree holder under Order XXI Rule 41(1) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code, 1908") seeking an order directing the judgment debtor to examine by way of interrogatories in relation to his property or means of satisfying the decree and for production of documents by the judgment debtor, which came to be allowed.
The petitioner herein would be referred to as judgment debtor and respondent herein would be referred to as decree holder, as per their status before the executing Court. Page 2 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined
2. The judgment debtor has challenged the impugned order dated 20.02.2021 passed below Exhibit-56, as it was passed, without allowing the judgment debtor to file his reply, in violation of principles of natural justice, and interalia challenging the territorial jurisdiction of the executing Court for executing the decree personally against the judgment debtor in view of Section 39(4) of "the Code, 1908". However, since judgment debtor relies on submissions made, so far as it relates to territorial jurisdiction of executing Court in view of Section 39(4) of "the Code, 1908", while decree executed against him personally, substantially raised in connected petition, the judgment debtor relies on the said submissions for the issue of territorial jurisdiction.
3. Learned Counsel for the judgment debtor, in his written submissions, vehemently submitted that judgment debtor was not served any notice and he was not allowed to file his reply to Exhibit-56 application filed by the decree holder in utter violation of principles of natural justice. 3.1 It is submitted that from a bare perusal of the impugned order, wherein para 29 says "application and relevant documents were served on the advocate on 19.10.2020", while Page 3 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined it is a matter of record that the application was reserved for orders on 19.10.2020 itself, without allowing the petitioner to file his reply or objections. Thus, it was on the same day that the application was served and it was reserved for orders on the same day. In support of the aforesaid submission, learned advocate appearing for the judgment debtor relied on a decision of the Supreme Court in the case of Johra & Ors. v. State of Haryana & Ors., rendered in Civil Appeal Nos. 11757 - 11758 of 2018, more particularly para 8 and 9 thereof, wherein it is held that 'basic fundamental principle of law provides that no order can be passed by any Court in any judicial proceedings against any party to such proceedings without hearing and giving such party an opportunity of hearing'.
3.2 It is further submitted that the opportunity of being heard should be real, reasonable and effective. The same should not be for namesake. It should not be a paper opportunity. Where a decision is based upon a document in a proceeding, copy of the same should be provided to the affected party. Otherwise, it would violate the principles of natural justice as the opportunity of being heard should be an effective opportunity and not an empty formality. Denial of Page 4 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined opportunity may make an order void. Limitation of time cannot stand in the way of not giving adequate opportunity. 3.3 It is further submitted that the application Exhibit-56 filed by decree holder is based on irrelevant, very old and misconceived facts, making wild and baseless allegations against the judgment debtor, which has been allowed by the executing Court without there being any basis to do so. 3.4 It is further submitted that false and baseless allegations on the judgment debtor of hiving off his assets to third-parties, without providing any evidence or details of a single such instance is being demonstrated by the decree holder. 3.5 It is further submitted that false and baseless allegations are made on the judgment debtor of transferring his assets to his family trust, without providing any details or evidence of any such transaction. It is claimed that if judgment debtor had committed any such act, then the same would be reflected in his Income-Tax Returns and clubbed with his income, as required under Section 64 of the Income-Tax Act, 1961. 3.6 It is further submitted that the decree holder has selectively quoted various proceedings in different forums without any context or background purely to defame, malign Page 5 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined and prejudice the Court against the judgment debtor without there being any provision in any of the Rules in Order XXI of "the Code, 1908" to do so, and the executing Court has taken note of such scurrilous and defamatory attacks in the impugned order without allowing the judgment debtor to file his reply to oppose such false narratives in utter violation of principles of natural justice.
3.7 It is further submitted that since this Court directed the executing Court to conclude the execution proceedings in three months vide order dated 22.09.2023, the judgment debtor, despite pendency of the captioned petition and without prejudice to his rights, filed his reply to the interrogatories to the best of his ability. It is submitted that vast and irrelevant prayers are included in the application Exhibit-56, which have been allowed by the executing Court without any application of mind. Therefore, it is requested to consider and disallow the irrelevant and highly objectionable nature of interrogatories. To project the same, few questions are referred to in the written submissions as irrelevant questions about criminal matters and pending litigations, details of social media accounts like Facebook, Twitter, Linkedin, Instagram, details of mode of travel, material particulars of foreign travel, place of Page 6 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined residence. e-mail IDs, landline and mobile numbers. Letters and documents relating to various proceedings in which judgment debtor is involved, copy of Aadhar card, voter ID, ration card, PAN card, passport, driving license, CIBIL report, etc. frequent flyer card statements for last about 10 years. 3.8 It is submitted that a bare perusal of prayers made by the decree holder and blindly allowed by the executing Court, without any application of mind, vide the impugned order would show the malicious nature of proceedings being conducted by the decree holder as an abuse of the process. Instead of focusing on executing the decree and realizing its dues from the assets of the judgment debtor, the decree holder has indulged in mudslinging and has made wild, baseless and false allegations against the judgment debtor.
4. On the aforesaid submissions, along with the submission on the point of territorial jurisdiction of executing Court, made in connected Special Civil Application, which is requested to be treated as submission in this petition also, the judgment debtor has requested to quash and set aside the order passed below Exhibit-56 in Regular Execution Petition (Commercial) No. 161 of 2019 by the Court of Principal Senior Civil Judge, Jamnagar Page 7 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined dated 20.02.2021, with a further prayer to direct the executing Court to rehear the petition after allowing the judgment debtor to file his reply to Exhibit-56, which has been illegally curtailed while passing the impugned order.
SUBMISSIONS IN SCA NO. 21283 OF 2023
1. By way of this petition, filed under Article 227 of the Constitution of India, petitioner - judgment debtor has challenged an order passed below Exhibit-111 dated 27.12.2021 by Principal Senior Civil Judge, Jamnagar, in Regular Execution Petition (Commercial) No. 161 of 2019, whereby application filed by the petitioner - judgment debtor, challenging jurisdiction of the executing Court in entertaining and deciding the execution petition itself, came to be rejected.
The petitioner herein would be referred to as judgment debtor and respondent herein would be referred to as decree holder, as per their status before the executing Court.
2. As the facts emerge from the application Exhibit-111, decree holder has preferred aforesaid proceedings for execution of judgments dated 30 th October, 2017, and 09th November, 2017 of Honourable Mr. Justice Teare, order of Page 8 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined Costs dated 03rd March, 2017 of Honourable Mr. Justice Waksman QC and decree dated 09th November, 2017 of Mr. Justice Teare of the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales, since Section 44A of "the Code, 1908" enables execution of decrees passed by Courts in reciprocating territory.
3. Pursuant to the aforesaid decree, judgment debtor is under an obligation to make payment of USD 5,062,462 / Rs. 32,98,23,468/- in addition to interest to the decree holder. 3.1 There appears several litigations filed by the judgment debtor, maybe within his legal/statutory right, because of which as on date despite the orders passed by the Courts, including Supreme Court, directing judgment debtor to deposit part of the amount, which is yet not deposited, and execution proceedings are still pending without any fruitful outcome despite it is filed in the year 2019 or prior thereto.
Though in the application Exhibit-111 filed by the judgment debtor and in the petition, several grounds are raised during the course of argument, and as coming out from the written submissions filed, it appears that it is restricted to territorial jurisdiction of the executing Court for executing the Page 9 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined decree personally against the petitioner, as per Section 39(4) of "the Code, 1908".
3.2 Mr. Percy Kavina, Senior Advocate, learned Counsel, assisted by Mr. Vivek B. Gupta, learned advocate for the petitioner, submitted that the territorial jurisdiction of a Court trying a suit is governed by Section 20 of "the Code, 1908"
even if part cause of action has arisen within the jurisdiction of that Court, and therefore, the Court has jurisdiction over the entire subject matter of the suit.
3.3 It is further submitted that no individual suits for individual cause of action is provided for when it is a part of same transaction. However, it is submitted that execution of a decree is governed under Section 39 of "the Code, 1908", which speaks about transfer of decree.
3.4 It is further submitted that sub-section (4) of Section 39 of "the Code, 1908" is negatively couched, providing territorial jurisdiction of an executing Court based on the location of judgment debtor or the properties and each executing Court has limited territorial jurisdiction as per that Section of "the Code, 1908".
Page 10 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 3.5 It is further submitted that adjudication of a suit, as per "the Code, 1908", can be done only by a particular Court but in the case of execution of a decree, it can be done or is required to be done by multiple Courts, depending upon the situs of the property or the person against whom the decree is sought to be executed personally.
3.6 Mr. Kavina, Senior Advocate, learned Counsel, further submitted that impugned order passed by the executing Court declaring petitioner as "absconding", without there being any provision in "the Code, 1908" to do so is perverse. Therefore, it is submitted that it being perverse finding, recorded by the executing Court to vest in itself the jurisdiction, which it never had otherwise is illegal. Referring the provisions under the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code, 1973"), it is submitted that, though there is no provision under "the Code, 1908", even the procedure required by the law under "the Code, 1973" has not been followed by the executing Court while passing the impugned order with the perverse finding of "absconding".
3.7 It is further submitted that there was no cause for judgment debtor to raise any issue over territorial jurisdiction Page 11 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined of an executing Court at any time before 03.09.2020 when the decree holder, for the first time, sought to enforce the decree against him personally. It is submitted that on 19.10.2020, the petitioner raised the issue about lack of territorial jurisdiction to enforce the decree against him personally vide Exhibit-69, which is still pending adjudication by the executing Court. Therefore, he has submitted that there is no delay on the part of the judgment debtor to raise the challenge to territorial jurisdiction at the first available opportunity. In view thereof, it is the submission of the learned Counsel that there cannot be any res-judicata or constructive res-judicata, as being pleaded by the decree holder.
3.8 Relying on a decision of this Court in the case of C.M. Smith and Sons Ltd. v. R.K. Casting Co., dated 16.10.2019, rendered in Special Civil Application No. 15137 of 2019, it is submitted that it is only a Court within whose territorial jurisdiction the judgment debtor resides, would have exclusive jurisdiction to entertain and decide execution of a decree against the judgment debtor personally. 3.9 It is submitted that in view of sub-section (4) of Section 39 of "the Code, 1908", no Court is authorized to execute the Page 12 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined decree against a person outside the local limits of its jurisdiction. It is further submitted that despite decree holder preferred three applications being Exhibits-54, 56 and 58 on 03.09.2020 for executing the impugned decree by detention of the judgment debtor in civil prison, which have been entertained by the executing Court, lacks territorial jurisdiction to entertain such applications since they are for execution of the decree against the judgment debtor personally and not against his assets situated in Jamnagar.
3.10 It is claimed that judgment debtor is a resident of Kolkata and has always been since birth a resident of Kolkata and has never changed his residence at any time. Therefore, as per the submission, a competent Court at Kolkata will have exclusive territorial jurisdiction to entertain and decide any application for execution of the impugned decree personally against the judgment debtor.
3.11 It is submitted that the decree holder has nowhere pleaded that the judgment debtor is a resident of Jamnagar and/or he was working for gain at Jamnagar. Summons in the execution petition was also served on the judgment debtor at Kolkata, as cause-title of the execution petition itself contained Page 13 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined the address of judgment debtor at Kolkata. Therefore, it is submitted that the Court at Jamnagar did not possess territorial jurisdiction to execute the decree personally against the judgment debtor.
3.12 It is further submitted that Section 51 of "the Code, 1908" provides that a Court, within the local limits of which the judgment debtor resides, shall not order detention of the judgment debtor in civil prison without an opportunity of showing cause why he should not be committed to prison on being satisfied interalia that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decree, is likely to abscond or leave the local limits of the jurisdiction of such Court.
3.13 As per the submission of the learned Counsel for the judgment debtor, in view of Section 51 of "the Code, 1908", a show cause notice to a judgment debtor can only be issued by a Court within whose local limits, the judgment debtor resides inasmuch as it is only such Court that can come to a finding that a judgment debtor with the object or effect of obstructing or delaying the execution of the decree is likely to abscond or leave the local limits of the jurisdiction of the Court, and Page 14 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined therefore, it is submitted that a Court of competent jurisdiction at Kolkata alone can execute the impugned money decree personally against the judgment debtor and no other Court in India, much less any Court at Jamnagar, which only has the territorial jurisdiction to execute the impugned decree against the judgment debtor's asset situated in Jamnagar. 3.14 It is further submitted that from the election card and driving license of the judgment debtor produced along with the present petition, it is evident that judgment debtor is a permanent resident of Kolkata, and the executing Court does not have any territorial jurisdiction over any of his properties, save and except the immovable property at Jamnagar, which has been duly disclosed in the list of assets filed by him. Merely because judgment debtor was stuck in Ahmedabad and was temporarily living in Ahmedabad from 15.03.2020 onwards due to Covid-19 related travel restrictions, would not mean that he was not a resident of Kolkata, conferring territorial jurisdiction to a Court at Jamnagar. It is claimed that the judgment debtor has never changed his residential address, which has been his residential address since birth.
In support of the aforesaid claim, it is submitted that a Page 15 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined document is produced at page 74 of the petition, wherein there is a copy of an envelope of the advocate for the decree holder, which has been delivered on the judgment debtor on or about 16.08.2021, showing that the judgment debtor has not changed his place/address of residence and that it remained the same, as reflected from the cause-title of the execution petition.
3.15 It is further submitted that the judgment debtor has never worked for gain within the territorial jurisdiction of Jamnagar inasmuch as he was employed as Managing Director in Gujarat NRE Coke Ltd. and Bharat NRE Coke Ltd. at their Head office in Kolkata, as evidenced on the face of the salary slips produced on record of the present petition.
In short, submission is that since judgment debtor owns an immovable property at Jamnagar, the executing Court at Jamnagar does have a very limited jurisdiction in the captioned execution proceedings against the immovable property of the judgment debtor in Jamnagar, but it could not acquire any jurisdiction over any other assets of the judgment debtor or the judgment debtor personally, who resides outside its territorial jurisdiction.
Page 16 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 3.16 It is further asserted that judgment debtor has challenged the territorial jurisdiction of the Commercial Court in executing the decree against him personally at the first available opportunity by filing application Exhibit-69 dated 19.10.2020 before the Commercial Court at Jamnagar, since the same was not decided and is pending even as on date, and the Court was proceeding ahead with executing the decree against the judgment debtor personally, and therefore, he was constrained to prefer application Exhibit-111, which was affirmed on 01.04.2021 and filed on 09.08.2021, once again specifically challenging the territorial jurisdiction of the Court. 3.17 It is submitted that, the delay caused in filing application from the date of its affirmation was since the executing Court had reserved the order of Exhibit-65, which was passed only on 04.08.2021, without deciding application Exhibit-69, and consequently, Exhibit-111 was filed since the issue of territorial jurisdiction remained undecided. 3.18 It is further submitted that during the pendency of application Exhibit-69 challenging the territorial jurisdiction, the decree holder filed application Exhibit-94 praying for furnishing of cash security of Rs. 12.89 Crores by the judgment debtor to secure his presence before the executing Court. It is Page 17 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined submitted that executing Court, even while application Exhibit- 69 as well as application Exhibit-111, challenging territorial jurisdiction remained pending, Exhibit-94 application was allowed asking judgment debtor to deposit Rs. 12.89 Crores as security for his presence during the inquiry interalia, to ascertain whether he had the means to pay the decree. The said order was challenged by way of Special Civil Application No. 17965 of 2021, whereby this Court held that the requirement of depositing cash was onerous and modified the order to give bank guarantee based on the book value of shares held by the judgment debtor. The judgment debtor preferred Special Leave Petition (Civil) No. 3300 of 2022 before the Honourable Supreme Court, which was dismissed vide order dated 07.03.2022 without going into the merits of the matter. Subsequently, judgment debtor applies to SBI for issuance of bank guarantee of Rs. 12.89 Crores against the shares held by him, to comply with the orders of this Honourable Court and the Honourable Supreme Court of India, which is refused by SBI. As such, judgment debtor has filed M.A. for modification/clarification in Special Leave Petition (Civil) No. 3300 of 2022, which is pending adjudication by the Supreme Court.
Page 18 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 3.19 It is submitted that the order to deposit bank guarantee was not towards payment of any sums due under a decree but only as a security for securing the presence of the judgment debtor before the Court. Therefore, it is submitted that there has been no willful disobedience of the order on the part of the judgment debtor and he has made all "sincere" efforts to comply with the same.
3.20 It is further submitted that application Exhibit-69 and Special Civil Application No. 5890 of 2021 relating to challenge to territorial jurisdiction of executing Court remained pending adjudication all-throughout during the adjudication of application Exhibit-94 and challenge to order passed in it, as above.
3.21 Relying on a decision of the Supreme Court in the case of Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, reported in (1970) 1 SCC 613, more particularly para 5 therein, to submit that a decision on an issue of law will act as res-judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has Page 19 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined since the earlier decision been altered by competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceedings, nor where the earlier decision declares valid a transaction which is prohibited by law, therefore, it is submitted that even if an issue of territorial jurisdiction is determined earlier on different cause of action, challenge to the same based on present cause of action is not barred by res-judicata, as submitted by the learned advocate for the decree holder.
4. On the aforesaid broad statements, learned Counsel appearing for the judgment debtor submitted that the Special Civil Application No. 21283 of 2023 be allowed by quashing and setting aside the order passed below Exhibit-111 in Regular Execution Petition (Commercial) No. 161 of 2019 by the Court of Principal Senior Civil Judge, Jamnagar dated 27.12.2021, with a further prayer to hold and declare that a competent Court at Kolkata will have exclusive territorial jurisdiction for execution of the impugned decree against the judgment debtor personally, which has been sought by the decree holder.
Page 20 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined
5. As against that, Mr. Devang Nanavati, Senior Advocate, learned Counsel assisted by Mr. Harsh N. Parekh, learned advocate for the decree holder, at the outset, submitted that the petition - Special Civil Application No. 21283 of 2023 is barred by delay and latches.
5.1 It is submitted that despite impugned order is passed on 27.12.2021 rejecting objection to the territorial jurisdiction of the executing Court, which came to be dismissed almost 2 years before, maybe few days less, thereafter the present petition has come to be affirmed by the judgment debtor. 5.2 It is further submitted that the decree holder is attempting to execute the decree to recover an amount, as aforesaid, since for last about more than 4 years. The judgment debtor is avoiding the execution thereof to be completed against him. At the same time, despite an order passed by the Court to deposit Rs. 12 Crores, under Order XXI Rule 40(2) of "the Code, 1908", which has been confirmed up to the Supreme Court, but instead of depositing the amount, bank guarantee is ordered to be submitted, the judgment debtor has not honoured and obeyed the order of the Court. Therefore, it is submitted that only on that ground alone, the petitions filed by the judgment debtor be rejected. Page 21 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 5.3 It is submitted that the executing Court has jurisdiction to execute the decree against the judgment debtor as he carries on business and has immovable assets within the jurisdiction of Honourable Court, which has not been denied by the judgment debtor in proceedings before the executing Court, and when he was absconding during the pendency of Exhibit-111 application before the executing Court. 5.4 It is further submitted that in view of Section 21 of "the Code, 1908" read with Doctrine of Waiver/Latches, the judgment debtor was supposed to object to the territorial jurisdiction of the executing Court at first possible opportunity, which he is unable to do, as surely the executing Court is having jurisdiction to execute the decree in view of Section 39 of "the Code, 1908" itself.
5.5 It is further submitted that sub-section (4) of Section 39 of "the Code, 1908" is being misinterpreted by learned advocate for the judgment debtor, since on the date of filing of the execution proceedings itself, when judgment debtor was served, he could have raised objection with regard to territorial jurisdiction of the Court before proceeding further in the execution, if at all that ground is available to him. It is further Page 22 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined submitted that once the executing Court has jurisdiction to execute the decree against the judgment debtor, the judgment debtor cannot, at a subsequent stage, object to the mode of execution adopted by the executing Court.
5.6 Without prejudice to the aforesaid submission, it is submitted that the issue of whether or not the decree is required to be transferred to Kolkata can only be gone into by the executing Court after the completion of the inquiry on the judgment debtor's assets and means of satisfying the decree. 5.7 It is further submitted that despite connected Special Civil Application No. 5890 of 2021 challenging an order passed below Exhibit-56 was filed in the year 2021, it was never got circulated for the purpose of any effective order, permitting the executing Court to proceed further as per the order passed below Exhibit-56. It was first got circulated on 11.12.2023. 5.8 It is further submitted that as coming out from an order dated 17.1.2022 in Civil Application (for fixing date of hearing) No. 1 of 2022, the application for fixing date of final hearing of aforesaid Special Civil Application is held to be misconceived inasmuch as the petition is at the admission stage. With the Page 23 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined observation that the office is not precluded from posting the petition for the purpose of admission hearing at an earlier convenience, the application is disposed of. Despite such order is passed, judgment debtor appears to have not attempted to get it circulated at a prior point of time. However, it appears that an another application filed for fixing date of hearing appears to be affirmed on 19.10.2023, notified for hearing on 30.11.2023 only. Since it was not heard for admission, admission hearing was fixed but date was wrongly transcribed as "11.01.2024", note for speaking to minutes was filed and it was corrected to be 11.12.2023, and therefore, it came to be first notified for hearing on 11.12.2023. However, it is submitted that no real and genuine efforts were ever made to get that petition placed for hearing and it is heard on merit, despite objection to the territorial jurisdiction of the executing Court was also raised in present Special Civil Application. All these facts are available on the website and with the papers, and therefore, it has been taken note of from the said record as a contention is raised by the decree holder that from the date of filing of the Special Civil Application No. 5890 of 2021 till 11.12.2023, though judgment debtor was in a position to raise the issue of territorial jurisdiction of the executing Court, Page 24 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined which he claims to have raised in it to personally execute the decree against him, but he has not chosen to do so. 5.9 For the delay in approaching the Court challenging the order dated 27.12.2021 passed below Exhibit-111, which is impugned in Special Civil Application No. 21283 of 2023, reliance is placed on a decision of the Supreme Court in the case of Vijay Kumar Kaul & Ors. v. Union of India & Ors., reported in (2012) 7 SCC 610 to submit that a belated approach is impermissible as in the meantime interest of third parties get ripened and further interference after enormous delay is likely too usher in a state of anarchy. The acts done during the interregnum period are to be kept in mind and should not be likely brushed aside.
5.10 Reliance is further placed on a decision of the Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T. Murali Babu, reported in (2014) 4 SCC 108, more particularly in para 17 thereof, that, "...delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give Page 25 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'."
Therefore, it is submitted that this Court, ought to avoid passing any order, which is likely to set at naught orders passed by the Coordinate Bench of this Honourable Court, which have been upheld by the Supreme Court of India. The judgment debtor is presently prosecuting present petitions with an ulterior objective of defeating the order dated 07.03.2022 passed by the Honourable Supreme Court in Special Leave Petition (Civil) No. 3300 of 2022, whereby the judgment debtor is under an obligation to give bank guarantee of Rs. 12 Crores as per the order passed by the executing Court directing it to be deposited, instead High Court modified it directing to furnish bank guarantee thereof, which is confirmed by the Supreme Court.
5.11 Next, it is submitted that the executing Court has jurisdiction to execute the decree against the judgment debtor as the judgment debtor carries on business and has immovable assets within the jurisdiction of this Court, which has not been denied by the judgment debtor in the proceedings before the executing Court as also the judgment Page 26 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined debtor was absconding during the pendency of Exhibit-111 application before it.
5.12 It is further submitted that affidavit in support of the tabular statement dated 23.04.2018 of Commercial Execution Petition No. 4 of 2018, filed on 24.04.2018, at paragraph 37 thereof, it is pleaded by the decree holder that "this Hon'ble Court has jurisdiction to entertain this petition as the Respondent / Judgment debtor carries on business and has immovable assets within the jurisdiction of this Court."
In column 'H' thereof, it is further asserted that, "the name of the person against whom enforcement of the Decree (or order) is sought, has named '"Arun Kumar Jagatramka' the judgment debtor".
The decree holder has sought the reliefs in Schedule to the tabular statement of execution petition, which are as under:-
"IV. The judgment debtor be directed to be orally examined and/or to disclose on oath as to the existence and present location of each and every asset including any debts receivable and owing to the Judgment Debtor and of all means available for satisfying the Award, including but not limited to a list of:
Page 27 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined V. If necessary a warrant of arrest be issued against the judgment debtor in case there is any default in compliance with the aforesaid or any other directions as may be passed by this Court."
Therefore, it is submitted that the jurisdiction of the executing Court is invoked on the basis that judgment debtor has immovable property within the territorial jurisdiction and carries on business within the territorial jurisdiction of the executing Court, as pleaded in paragraph 37 of the affidavit in support of the tabular statement dated 23.04.2018 of Commercial Execution Petition No. 4 of 2018. Thus, according to the submission of learned advocate for the decree holder, requirements of Sections 39(1)(a) and 39(2) of "the Code, 1908" are satisfied.
5.13 Reliance is placed on a decision of the Supreme Court in the case of M/s Gian Chand & Brothers and anr. v. Rattan Lal @ Rattan Singh, reported in (2013) 2 SCC 606 for a proposition that if an averment is not denied specifically, it is by necessary implication taken to be admitted against him. Therefore, it is submitted that judgment debtor, in his pleading, before the executing Court has never specifically denied paragraph 37 of the affidavit in support of this tabular Page 28 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined statement dated 23.04.2018 of Commercial Execution No. 4 of 2018 that he carries on business within the territorial jurisdiction of the executing Court.
5.14 Next, it is submitted that Section 39(4) of "the Code, 1908" has to be read in conjunction with Sections 21(1) and 21(3) of "the Code, 1908", which provide that objection to the territorial jurisdiction has to be raised in the Court of first instance at the earliest possible opportunity and if not raised, it cannot be raised before appellate or revisional Court. At the same time, no objection, as to the competence of the executing Court with reference to the local limits of its jurisdiction, shall be allowed by any appellate or revisional Court, unless such objection was taken in the executing Court at the earliest possible opportunity and unless there has been a consequent failure of justice.
In support of the aforesaid submission, reliance is placed on the decision of the Supreme Court in the case of Sneh Lata Goel v. Pushplata Goel & Ors., reported in (2019) 3 SCC 594, more particularly paragraph 13 thereof, for a proposition that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a Page 29 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined Civil Court to entertain the suit. Hence, it has to be raised before the Court of first instance at the earliest opportunity and in all cases where issues are settled on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both, these conditions have to be satisfied. 5.15 It is further submitted that prior to the filing of Application Exhibit-111 before the executing Court, judgment debtor had the following six available opportunities to challenge the territorial jurisdiction of executing Court to execute the decree personally against the judgment debtor on the pretext that judgment debtor is a permanent resident of Kolkata:-
(I) On or about 7th May, 2018, when the judgment debtor had filed objection under Section 13 of "the Code, 1908" in relation to the enforceability of England High Court decree in India. These objections were rejected by the executing Court vide common order dated 29.02.2020 below Exhibit-11 and 45, which was thereafter upheld by this Court vide order dated 22.09.2023 in Special Civil Application No. 5509 of 2021, and thereafter subsequentially upheld by the Supreme Court vide order Page 30 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined dated 29.01.2024 in Special Leave Petition (Civil) No. 684 of 2024.
(II) On or about 16th July, 2018, when the judgment debtor filed Exhibit-19 application before the executing Court, challenging the jurisdiction of executing Court on the limited ground that the underlined dispute is not a commercial dispute. Said application came to be rejected vide order dated 10th April, 2019 and upheld by this Court vide order dated 26.08.2019 in Special Civil Application No. 8334 of 2019, and thereafter by Apex Court vide order dated 29th September, 2020 vide Diary No. 18333 of 2020 disposing of the judgment debtor's appeal, granting liberty to the judgment debtor to raise the contention before the executing Court whether "commercial court does not have the jurisdiction to entertain an Execution Petition under the Commercial Courts Act ".
(III) On or about 28.01.2020, when the judgment debtor filed Exhibit-45 before the executing Court challenging the jurisdiction of executing Court on the limited ground that the England High Court decree provides that it cannot be executed in India. This objection was rejected vide order Page 31 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined dated 29.02.2020 below Exhibits-11 and 45, as referred to hereinabove, which is confirmed up to the Supreme Court. (IV) On or about 10.10.2020, when the judgment debtor filed an application Exhibit-65 before the executing Court on the limited grounds that under the Commercial Courts Act, execution proceedings cannot be filed before the Commercial Court. This objection was also rejected by the executing Court vide its order dated 04.08.2021, which was subsequently upheld by this Court vide order dated 04.02.2022 in Special Civil Application No. 17399 of 2021, and on 16.10.2020, judgment debtor filed Exhibit-69 before the executing Court in which he had sought 10 reliefs in terms of prayer clauses 'A' to 'J'. Out of the many reliefs sought by judgment debtor in application Exhibit-
69, prayer clause 'I' reads as under:-
"I. To hold and declare that this Hon'ble Court has no territorial jurisdiction to entertain and decide application Ex. 54, 56 and 58 since he is permanent resident of Kolkata".
This relief sought by the judgment debtor in Exhibit-69 had been rendered infructuous by virtue of executing Court's order dated 07.01.2021 below Exhibit-54, issuing a Page 32 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined show cause notice to the judgment debtor as to why he should not be arrested under Order XXI Rule 37 of "the Code, 1908"
(V) On or about 19.01.2021, when the judgment debtor filed Special Civil Application No. 1734 of 2021 impugning the executing Court's order dated 07.01.2021 passed below Exhibit-54 before this Court, this Court vide order dated 18.03.2021 passed in Special Civil Application No. 1734 of 2021 upheld the executing Court's order dated 07.01.2021 passed below Exhibit-54.
(VI) On or about 25.01.2021, when the judgment debtor filed Misc. Civil Application No. 87 of 2021 seeking transfer of execution proceedings before the executing Court to another Commercial Court in the State of Gujarat on the pretext that the learned Presiding Officer of the executing Court was allegedly biased against the judgment debtor.
This Honourable Court, vide order dated 01.02.2022 in Misc. Civil Application No. 87 of 2021 had recorded that the judgment debtor had withdrawn the Misc. Civil Application No. 87 of 2021. During the pendency of Misc. Civil Application No. 87 of 2021, this Court vide order Page 33 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined dated 05.02.2021 in Misc. Civil Application No. 87 of 2021 had directed the judgment debtor to remain present before the executing Court, as directed by its order dated 07.01.2021 below Exhibit-54 and the same was upheld by the Honourable Apex Court vide order dated 01.03.2021 in Special Leave Petition (Civil) No. 3161 of 2021. Therefore, it is submitted that by no stretch of imagination can it be said that "there has been a consequent failure of justice" towards the judgment debtor, as envisaged in sub- section (2) of Section 21 of "the Code, 1908", in light of the finding of facts recorded by this Court in various orders in the different proceedings between the parties, which would reveal that judgment debtor, at the time of filing Special Civil Application No. 21283 of 2023 has not approached this Honourable Court with clean hands. Though certain instances of conduct of the judgment debtor is observed in different petitions by this Court, while determining the same, as mentioned in detail in the written submissions, suffice it to say that this Court has held that the grounds, which are raised, are determined and despite that, it is raised and re-raised, repeating the litigation on the same grounds under different Page 34 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined pretext and different context, tantamount to abuse of process of law.
5.16 A reliance is placed on the decision of the Supreme Court in the case of Hira Lal Patni v. Sri Kali Nath, reported in 1961 SCC OnLine SC 42, quoting paragraph 4 in the written submission:-
"4. ...The decision of the Privy Council in the case of Ledgard v. Bull is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. ...the objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived."
5.17 Decision of the Supreme Court in the case of Forward Construction Company Etc. Etc. v. Prabhat Mandal (Regd.) Andheri & Ors., reported in (1986) 1 SCC 100, on the issue of res-judicata on the ground that:-
"An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidential to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence."
Page 35 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 5.18 A decision of the Supreme Court in the case of Dipali Biswas & Ors. v. Nirmalendu Mukherjee & Ors., reported in 2021 SCC OnLine SC 869, more particularly para 37(i) to it, which reads as under:-
"37(i) A judgment-debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise issue in four earlier rounds of litigation, the appellants cannot be permitted to raise it now".
5.19 Distinguishing the precedent relied on by the judgment debtor in the case of Mathura Prasad Bajoo Jaiswal (Supra), it is submitted that it deals with the law of res- judicata as opposed to the law of 'constructive res-judicata' and it deals with subject matter jurisdiction of the Court as opposed to the issue of waiver of territorial jurisdiction. 5.20 Referring to Section 51 of "the Code, 1908", it is submitted that once the executing Court has jurisdiction to execute a decree against the judgment debtor, the judgment debtor cannot, at a subsequent stage, object to the mode of execution adopted by the executing Court as decree could be executed by different modes enumerated in Section 51 of "the Code, 1908".
Page 36 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 5.21 Reliance is placed on the decision of the Supreme Court in the case of Mahadeo Prasad Singh & anr. v. Ram Lochan & Ors., reported in (1980) 4 SCC 354, more particularly para 28 thereof, for a proposition that, subject to the Rules framed by the Court or any other provisions under "the Code, 1908", the decree holder has the right to choose any mode of execution. For the same proposition, a reliance is also placed on the decision of Madras High Court in the case of Ganesh v. Sankaran, reported in 2006 (3) CTC 546, more particularly paragraphs 9 - 14 at page 548-549. 5.22 The learned Counsel for the decree holder contended, strictly without prejudice to the aforesaid contentions, the issue of whether or not the decree is required to be transferred to Kolkata can only be gone into by the executing Court after the completion of the inquiry of the petitioner/judgment debtor's assets and means of satisfying the decree. In support of the aforesaid contention, a reliance is placed on the very decision relied on by the learned advocate for the judgment debtor in the case of C.M. Smith and Sons Ltd. (Supra), wherein after referring Order XXI Rule 41 of "the Code, 1908", it is expressly held that, "The question of transferring the Page 37 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined execution proceeding would only arise upon examination of the judgment-debtor in the court on the question as to whether he holds any property within the territorial jurisdiction of the court at Rajkot and as to whether he has any further debts within the territorial jurisdiction of the Court at Rajkot. Without this question being answered in favour of the judgment debtor, i.e. to the effect that the entire property of the judgment-debtor is outside the territorial jurisdiction of the court at Rajkot, the question of transferring the decree may not even arise at this stage."
5.23 Therefore, so far as reliance placed on the decision of C.M. Smith and Sons Ltd. (Supra) by the judgment debtor, it is submitted that it deals with attachment of immovable property outside the territorial jurisdiction of the executing Court as opposed to execution against a person, who is carrying on business within the territorial jurisdiction of the Court. It is submitted that there cannot be any quarrel with the proposition that should decree holder want to permanently attach immovable property of the judgment debtor outside the territorial limits of the executing Court, the decree will have to be transferred to the appropriate Court within whose territorial jurisdiction the property is situated.
Page 38 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 5.24 Learned Counsel for the decree holder submitted that the executing Court has not accepted the bald assertion of the judgment debtor that he is voluntarily and actually residing in Kolkata and it has arrived at a finding on the basis of sound judicial reasoning that the judgment debtor is currently absconding. Coming to the fact that the judgment debtor is admittedly been staying at some undisclosed location in Ahmedabad for over 2 years during the pendency of Exhibit- 111 application. In addition thereto, it is submitted that during his cross-examination before the executing Court on 10.01.2024, the judgment debtor has conceded that even as on date, he has employees working in his immovable Jamnagar property residence.
6. On the aforesaid submissions, learned Counsel appearing for the decree holder submitted that both the petitions preferred by the judgment debtor be rejected with exemplary cost.
7. Having heard the learned advocates for the appearing parties, and going through the impugned orders, along with the documents annexed with the petitions as also which are produced by the parties along with the written submissions, it emerges that Section 39 of "the Code, 1908" as also Order XXI Page 39 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined and certain rules of "the Code, 1908" are required to be considered and dealt with for the decision of these petitions. Taking up the issue raised in Special Civil Application No. 5890 of 2021, it appears that by filing the aforesaid petition under Article 227 of the Constitution of India, the judgment debtor challenged an order dated 20.02.2021 passed below Exhibit-56 in Regular Execution Petition (Commercial) No. 161 of 2019 by the Court of Principal Senior Civil Judge, Jamnagar. From the petition itself, it appears that Exhibit-56 application is filed by the decree holder on 03.09.2020 under Order XXI Rule 41(1) read with Section 151 of "the Code, 1908", for examining judgment debtor by way of interrogatories in relation to his property or means of satisfying the decree and for production of documents by the judgment debtor.
7.1 The executing Court, vide order dated 20.02.2021, allowed the application Exhibit-56 granting leave to the decree holder to deliver interrogatories for the examination of the judgment debtor as to whether any or what debts are owing to the judgment debtor and whether the judgment debtor has any and what other property or means of satisfying the foreign decree. The judgment debtor was directed to deliver particulars sought for in the interrogatories. Page 40 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 7.2 When the judgment debtor also ordered to produce documents sought for in the application relating to his means of satisfying the foreign decree, still however, since the date of registration of the aforesaid Special Civil Application, no sincere efforts made by the judgment debtor to get it determined or fulfilled. For the sake of showing that attempts are made, despite petition is affirmed on 22.03.2021, it was presented before the Registry on 23.03.2021 and registered on 30.03.2021 Civil Application No. 1 of 2022 for the first time, came to be filed, though affirmed on 20.12.2021 and got circulated on 17.01.2022 praying for fixing date of hearing. However, as recorded by the Court, the application for fixing date of final hearing of Special Civil Application is misconceived as the petition is at admission stage and with that observation, the Registry was not precluded from posting the petition for the purpose of admission hearing at an earlier convenience, the said application came to be disposed of. Neither the Registry moved the same thereafter, nor the judgment debtor cared to see that matter is heard at the earliest, as not only the objection to the territorial jurisdiction of the executing Court is raised challenging the order passed below Exhibit-56, again an application for fixing the early date Page 41 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined of admission hearing, being Civil Application No. 1 of 2023 came to be filed, affirmed on 19.10.2023, which was circulated on 30.11.2023, and it was directed to be placed for admission hearing on 11.12.2023 but since order transcribed referred to the date of 11.01.2024, a note for speaking to minutes was filed and it was corrected, and therefore, main petition came to be listed for hearing for the first time on 11.12.2023. Much water has flown thereafter in the interregnum period, as several applications are determined, challenge to the said determination is filed before this Court and failed up to the Supreme Court in various proceedings.
7.3 Not only that, on 11.12.2023, as rightly pointed out by the decree holder in his written arguments, that the learned Senior Counsel for the judgment debtor has chosen not to press any other ground other than the territorial jurisdiction of the learned executing Court to execute the decree against him on the pretext that he is purportedly a permanent resident in Kolkata. It was also conceded by the learned Senior Counsel for the judgment debtor that this contention had been rejected by the executing Court vide order dated 27.12.2021 in Exhibit- 111 and accordingly, sought an adjournment so that he can challenge by way of substantive petition the order passed Page 42 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined below Exhibit-111, which is connected Special Civil Application No. 21283 of 2023. The order impugned in connected Special Civil Application is dated 27.12.2021, which was presented on 20.12.2023 approximately 2 years after the passing of the impugned order in it. Not only that, as coming out from the written submission of the decree holder, judgment debtor had filed Civil Misc. Application No. 352 of 2023, for review of the order dated 27.12.2021, praying for condonation of delay to prefer review application, which came to be rejected by an order dated 08.12.2023. All these facts and others, which may be dealt with subsequently, prima facie, it appears that judgment debtor is out-and-out trying to delay the execution proceedings being concluded under one or the other pretexts, maybe within his right to raise all sort of objections, but not with a dilatory tactics, filing proceedings before the High Court and moving the same for the effective order only at a convenient time so as to further delay the execution against him.
7.4 Despite, on the date of first hearing, and at the time of hearing of both these petitions together, learned Counsel for the judgment debtor had limited his arguments to the Page 43 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined territorial jurisdiction of the executing Court, written arguments submitted by the learned advocate for the judgment debtor not only adopts the grounds and contentions raised in connected Special Civil Application, so far as it relates to territorial jurisdiction of executing Court, a grievance is also voiced that principles of natural justice is not followed before passing an order impugned in this Special Civil Application No. 5890 of 2021.
7.5 As coming out from the written submission by the learned advocate for the judgment debtor no notice to application Exhibit-56 filed by the decree holder under Order XXI Rule 41(1) of "the Code, 1908" was served on the judgment debtor and he was not allowed to file his reply in utter violation of the principles of natural justice. It is further contended that, it is evident from a bare perusal of the impugned order, wherein para 29 says "application and relevant documents were served on the advocate on 19.10.2020", while it is a matter of record that the application was reserved for orders on 19.10.2020 itself, without allowing the petitioner to file his reply or objections. Thus, it is submitted that it was on the same day that the application was Page 44 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined served and it was reserved for orders also on the same day. The aforesaid submission appears to be false if we peruse para 29 of impugned order itself, which is as under:-
"29. Pursuant to this application, notice giving intimation to the application was issued to the judgment Debtor. The set of papers containing the application and relevant documents are shown to have been received by the Ld. Advocate on behalf of the Judgment Debtor vide E-mail correspondence and bears an endorsement to the effect that the application and its accompaniments are received by the other side on 19.10.20. The relevant correspondence in this regard is placed on record. The matter was posted for hearing through video link. The application was heard through video link and oral arguments/submissions were made by the Ld. Advocate on behalf of the Judgment Debtor. No other submissions were ever made on behalf of the Judgment Debtor till the matter was posted for hearing."
No any assertion by way of any argument or an affidavit can dislodge what is recorded in the judgment of the Honourable Court. Not only that, the impugned order came to be passed only on 20.02.2021. If at all judgment debtor wanted to file any reply or objections, he could have done so before impugned order is pronounced on 20.02.2021. If at all contention of the judgment debtor to the effect that Page 45 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined application and relevant documents were served on advocate on 19.10.2020 and application was reserved for orders on 19.10.2020 itself, he could have prayed for time to file reply or objections. Whereas para 29 of the order itself shows that the matter was posted for hearing through video link and it was heard through the same.
7.6 Not only that, oral arguments/submissions were made by the learned advocate on behalf of the judgment debtor, no one precluded even the learned advocate for the judgment debtor to pray for time for submission of reply/objection, if at all it is required, to an application filed by decree holder under Order XXI Rule 41(1) of "the Code, 1908". Entire impugned order recites hearing granted to the judgment debtor and he appeared through advocate Mr. Vivek B. Gupta, which is evident from the below mentioned paragraphs of the impugned order:-
"17. ... The Ld. Advocate Mr. Vivek Gupta on behalf of the Judgment Debtor joined the hearing through video link. The Ld. Advocate Mr. A.B. Jhaveri, was present on the date of hearing before this Court"
"17.5. It is submitted on behalf of the Judgment debtor that liability of guarantor is co-existensive with that of the Page 46 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined principal borrower. An amount of Rs. 20 Crores is paid by Gujarat NRE to Decree holder. Yet the present suit is filed to recover 32 Crores. Attention is drawn to application raising objections to the jurisdiction of this Court. It is submitted that if any order is passed without deciding order of jurisdiction, that order would be a nullity."
7.7 Considering the provisions of Rule 41(1) to (3) of Order XXI of "the Code, 1908", as such a prayer for examining judgment debtor as to his property when made by the decree holder, judgment debtor is not required to be heard at all. Even if requirement of principle of natural justice is read into it, as detailed hereinabove, not only copy of application itself and documents were served on the learned advocate for the judgment debtor, he was also heard, as coming out from the impugned order itself, more particularly when, he has not prayed for time to file even reply/objections to it despite availability of time of nearly 4 months. From in between the service of an application and passing of an order, he could have done so by filing it before pronouncement of the impugned order. Not only he has not filed the same, he has not even orally prayed for, as reflected from the impugned order. An application under Rule 41 of Order XXI of "the Code, 1908"
is merely a procedural, requiring oral examination of a Page 47 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined judgment debtor as to whether any or what debts are owing to the judgment debtor and whether the judgment debtor has any and what other property and means of satisfying the decree. Allowing such application, in this case it is allowed after hearing the learned advocate for the judgment debtor, requiring no hearing at all, since his oral examination before the Court is for the purpose of ascertaining with regard to properties or means of satisfying the decree. 7.8 Even if the contention raised, without any contemporaneous record to assert that application Exhibit-56 and relevant documents were not served on the advocate on 19.10.2020, and it was reserved for orders on 19.10.2020 itself, is presumed to be true as coming out from the order itself, no order was passed on that very day but there was time of at least 4 months and 10 days in between the same, which would have been sufficient time for the judgment debtor to file reply/objection thereto before Court pronounced the order thereon. Not only that, if really the judgment debtor is aggrieved by the said order, when there is a breach of principle of natural justice, if presumed to be true, he could have immediately filed the petition and got it circulated for Page 48 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined hearing. In this case, he waited for at least 2 years after filing the same. Therefore, there appears no substance in the submission that there is a violation of principles of natural justice.
7.9 The ground raised with regard to opportunity of being heard is also raised for namesake, as reflected from the order itself. Not only he was heard, no other submissions were ever made on behalf of the judgment debtor till the matter was posted for hearing, as reflected from the impugned order itself. The application Exhibit-56 filed under Order XXI Rule 41 of "the Code, 1908" is akin to a prayer for witness summons for examination as a witness. By allowing such prayer, before passing any order or executing decree further, if the judgment debtor is issued notice and examined as to his properties, no right, much less any legal right, of the judgment debtor is violated so as to require hearing, though in the present case all opportunities were given to the judgment debtor, before passing such order. If any false and baseless allegations are made prior irrelevant events are mentioned or irrelevant comments made purely to prejudice the Court by the decree holder, even in an application Exhibit-56, when judgment debtor is examined before the Court as to his properties, he Page 49 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined can prove him wrong in all respect and he may avail any remedies available under the law against the decree holder, if at all any scurrilous, highly defamatory and baseless allegations on the character of the judgment debtor is made. However, that cannot be a ground to challenge the order impugned passed below Exhibit-56, whereby decree holder is granted leave to deliver interrogatories for the examination of the judgment debtor as to whether any or what debts are owing to the judgment debtor and whether the judgment debtor has any and what other property or means of satisfying the foreign decree. The judgment debtor is directed to deliver particulars sought for in the interrogatories and to produce documents sought for in the application relating to his means of satisfying the foreign decree.
7.10 Not only that, pursuant to the said order passed, reply to the interrogatories is already filed. Therefore, so far as the arguments except the arguments with respect to lack of territorial jurisdiction by the executing Court is concerned, there is no substance so as to interfere with the impugned order. The arguments, so far as it relates to territorial jurisdiction of the executing Court is concerned, would be dealt Page 50 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined with hereafter for both the petitions. Before embarking upon the examination of submission with respect to lack of territorial jurisdiction by the executing Court is concerned, not only the provisions of law is required to be dealt with but at the same time, conduct of judgment debtor is also to be kept in mind. 7.11 After the order dated 20.02.2021 passed below Exhibit- 56, impugned in Special Civil Application No. 5890 of 2021, and before order dated 27.12.2021 below Exhibit-111, impugned in connected Special Civil Application No. 21283 of 2023 is passed, pursuant to an application Exhibit-94 filed by the decree holder under Order XXI Rule 40(b) of "the Code, 1908", praying to direct judgment debtor to furnish security by way of cash deposit of Rs. 12,89,19,458/-, it came to be allowed vide order dated 04.10.2021. The judgment debtor challenged the said order by way of Special Civil Application No. 17965 of 2021, which came to be dismissed subject to modification to the extent that judgment debtor was permitted to furnish the security for the aforesaid sum by way of bank guarantee equal to the said amount instead of cash deposit. Observations by the executing Court with regard to financial capacity to satisfy the deemed decree and disobeying the Page 51 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined orders of Court, in paras 5.5 to 5.8, it is noted that the judgment debtor has the financial capacity to satisfy the deemed decree passed by the Court but has deliberately chosen and failed not to do so. It was also noted that the Court has not granted permission to the judgment debtor and his immediate family members to travel out of India. For the observation of the executing Court about the conduct of the judgment debtor, as reflected from para 5.6, is as under:-
"5.6 The Court below observed about the conduct of the judgment-debtor, "The extent to which the judgment-debtor has gone is also indicated by the fact that inspite of the knowledge of the orders of the court the judgment- debtor has not obeyed them. This makes it clear that the party who was absolutely no regard for the orders of the court must be made to bear the consequences of his own action. The judgment-debtor has chosen to wilfully and blatantly flout the orders passed against him in the present execution proceedings from the vey inception thereof."
It is further observed in para 5.7 of the order in Special Civil Application No. 17965 of 2021, which reads as under:-
"5.7 ... Upon assessing the facts and conduct of the judgment-debtor the Executing Court has duly found that Page 52 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined they are indicative of unwillingness and avoidance on part of the judgment-debtor to pay the decreetal amount despite availability of means with him to pay. "
7.12 Again, in order passed in Special Civil Application No. 17399 of 2021 dated 04.02.2022, challenging an order passed below Exhibit-65 dated 04.08.2021, about conduct of the judgment debtor with regard to raising and re-raising one and the same issues again and again, it is observed in para 5.2 as under:-
"5.2 It could be well said therefore that the ground that the dispute is not 'commercial dispute' and consequentially the Commercial Court lacks inherent jurisdiction to execute the decree, falls flat. It is deprecable that despite the above findings of the Division Bench, the very ground is raised and re-raised in yet another present proceedings. Be as it may. Repeating the litigation on the same grounds under different pretext and different context tantamount to abuse of process of law."
In the aforesaid judgment, a reference of earlier petition being Special Civil Application No. 8334 of 2019 is made where also Division Bench of this Court was called upon to decide challenge to order passed below Exhibit-19 dated 10.04.2019, wherein execution of a decree by Commercial Court was Page 53 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined questioned. This Court observed in para 14 of the order dated 26.08.2019 as under:-
"14. The learned Commercial Court at Rajkot, while dealing with application at exhibit 19 has threadbare considered the same and has correctly interpreted the provisions of the Act as well as the provisions of section 126 of the Indian Contract Act in particular. It would not be out of place to record that having participated in the proceedings before the English Commercial Court, having given a guarantee and the judgment of English Court having become final, only with a view to throw spanner in the execution of such decree, the present petition is filed only with a view to create hurdle and delay the execution proceedings, which is nothing but an abuse of the process of Court."
7.13 While dealing with Special Civil Application Nos. 5509 of 2021, 17793 of 2021, 18079 of 2021 and 18901 of 2022 vide order dated 22.09.2023, this Court again took into account the conduct of judgment debtor not only delaying the execution proceedings but making allegations against the Presiding Officer. Para 30 in the common judgment and order aforesaid would be relevant to be quoted:-
"30. Reading the chronology of events, it further indicates that while making an application at Exh.136, wherein the petitioner made allegations against the Page 54 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined Presiding Officer, which was also moved post 14.09.2021, on 31.10.2021, the petitioner did not seek a stay of the proceedings on the ground under section 96 of the IBC. Then came the applications Exh.111 and Exh.45. One glaring aspect that stands out like an eye-sore is the conduct of the petitioner in filing WPA No. 20315 of 2021 before the Calcutta High Court, wherein, he challenged the constitutionality of Section 96 of the IBC. That application was also dismissed on 27.12.2021."
7.14 Even the order passed by the executing Court directing judgment debtor to deposit in cash Rs. 12 Crores and more, which is modified in Special Civil Application No. 17965 of 2021 by this Court directing judgment debtor to furnish bank guarantee of Rs. 12 Crores and more even a Special Leave Petition (Civil) No. 3300 of 2022 came to be preferred, which also came to be dismissed on 07.03.2022. The order of the Supreme Court reads as under:-
"We have heard Shri Shyam Divan, learned Senior Advocate appearing on behalf of the petitioner and Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the respondent. In the facts and circumstances of the case and having gone through the impugned judgment and order passed by the High Court and more particularly when against the dues of Rs.40,00,00,000/- (Rupees Forty Crores), the petitioner is directed to furnish the Bank Guarantee of approximately Page 55 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined Rs.12,00,00,000/- (Rupees Twelve Crores) in exercise of power under Order 21 Rule 40 (2) of the CPC, we see no reason to interfere with the impugned judgment and order passed by the High Court. The Special Leave petition stands dismissed.
Pending application(s), if any, shall stand disposed of."
Though in the written submissions, it is asserted that M.A. for clarification/modification in Special Leave Petition (Civil) No. 3300 of 2022 is pending adjudication by the Supreme Court, no any contemporaneous record is produced in support of the same. Even if it is filed, it has not been moved despite two years have elapsed, rejecting the Special Leave Petition by the Supreme Court. The fact remains that the said order, which is confirmed up to the Supreme Court by a reasoned order, judgment debtor has failed to obey the said order. Therefore, it is clear that the judgment debtor has very scant regards for the Court orders and is now in the habit of playing dilatory tactics, solely with a view to avoid realization of a money decree by way of execution, which he is successful up till now for a period of at least 5 years from the date of filing it.
Therefore, it is clear that despite availability of raising the ground of territorial jurisdiction and getting it determined at Page 56 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined the earliest possible opportunity, judgment debtor has not attempted to get it determined. Pending very petition challenging order Exhibit-56, he preferred another application Exhibit-111 which was also rejected on 27.12.2021, same has been challenged before this Court only after about some days short of 2 years, which is again a part of dilatory tactics to further delay the pending execution proceedings. As such, while exercising jurisdiction under Article 227 of the Constitution of India, against the challenge raised in both these petitions, not only the delay part but conduct of the judgment debtor is also very relevant and considering the same, both these petitions are not required to be entertained on these grounds.
7.15 Furthermore, it appears that on or about 03.09.2020, decree holder applied before the executing Court by application Exhibit-54 filed under Order XXI Rule 37 of "the Code, 1908" for issuance of show cause notice as to why judgment debtor should not be committed to civil prison, instead of issuing a warrant for his arrest. The executing Court determined the same on 07.01.2021. The judgment debtor challenged the same before this Honourable Court by filing Special Civil Application No.1734 of 2021 and this Court did not Page 57 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined entertain the petition. However, a direction was issued to the executing Court to render its decision on application Exhibit- 65, which is again questioning the jurisdiction of the Court within 15 days from the date of receipt of that very order as also Para 29 and 31 of the impugned order passed below Exhibit-54 by the executing Court were ordered not to be treated as final and shall not become prejudicial to the judgment debtor in the further inquiry under Order XXI Rule 40 of "the Code, 1908".
7.16 However, fact remains that when application under Order XXI Rule 37 of "the Code, 1908" is filed requesting the Court to proceed, as mentioned in Rule 37 thereof, the judgment debtor should have raised question of territorial jurisdiction as further available opportunity while challenging the order passed below Exhibit-54 itself as that action was in the direction of executing the decree personally, if not on the date of filing of the execution proceedings itself. 7.17 However, it is very clear from the affidavit in support of the Tabular statement filed along with the execution application itself, wherein Para 37 and prayer made therein, which is at page 32 of the paper-book, is as under:- Page 58 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined "37. This Honourable Court has jurisdiction to entertain this petition as the Respondent/Judgment Debtor carries on business and has immovable assets within the jurisdiction of this Hon'ble Court. The value of the claim of the Decree Holder is above INR 1,00,00,000/- (Indian Rupees One Crore) and as such this Hon'ble Court has jurisdiction to receive, try and determine this application.
It is, therefore, prayed that the present Application for execution of the said Judgment and Decree dated 9th November, 2017, be made absolute in terms of the said Application and the said Judgment and Decree be enforced and executed against the Judgment Debtor/ Judgment Debtor for recovery of the dues of the Decree Holder by attaching the properties of the Judgment Debtor/Respondent in the mentioned Execution Application."
From this very prayer, it is clear that an execution is prayed for of a money decree executing the same either personally against the judgment debtor or through his properties, which is situated within the jurisdiction of the Court where execution is filed and judgment debtor carries on business and has immovable assets too. Therefore, if at all any objection as to the territorial jurisdiction of the Court be raised, it should have been from the first available possible opportunity when the summons/notice of execution is served upon the judgment debtor.
Page 59 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined 7.18 Not only that, decree holder has sought the below reliefs in the Schedule to the tabular statement of the Execution Petition:-
"IV. The judgment debtor be directed to be orally examined and/or to disclose on oath as to the existence and present location of each and every asset including any debts receivable and owing to the Judgment Debtor and of all means available for satisfying the Award, including but not limited to a list of:
V. If necessary a warrant of arrest be issued against the judgment debtor in case there is any default in compliance with the aforesaid or any other directions as may be passed by this Court."
Therefore, one thing is very clear that execution petition was not filed only to execute the decree from the assets of the judgment debtor but it was also requested to be executed personally against the judgment debtor. 7.19 Not only that, after filing of the execution petition on or about 07.05.2018, judgment debtor had filed objections under Section 13 of "the Code, 1908" in relation to the enforceability of English High Court decree in India. Therefore, it is clear that the judgment debtor was aware about the law as also availability of all legal grounds in his favor, including that Page 60 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined of objection to the territorial jurisdiction of the executing Court, which is to be raised at the first available possible opportunity. The said objection, which is determined below Exhibits-11 and 45, is determined by the executing Court against the judgment debtor and confirmed up to the Supreme Court. Second available opportunity to object to the territorial jurisdiction was when the judgment debtor applied vide Exhibit-19 on or about 16.07.2018, challenging the jurisdiction of the executing Court on the limited ground that the underlined dispute is not a commercial dispute. If lack of inherent jurisdiction on any ground is challenged, any objection as to the territorial jurisdiction has to be raised not only at the first available possible opportunity but when the inherent lack of jurisdiction is being challenged, it has to be simultaneously raised, if at all there is a challenge to the territorial jurisdiction to be raised. Even that objection was also rejected by the executing Court and upheld by the High Court and thereafter also challenge failed up to the Supreme Court.
7.20 The excuse that objection as to the territorial jurisdiction is raised within no time when decree was sought to be executed personally by way of application Exhibit-69 filed Page 61 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined on 16.10.2020, which is still pending, has no legs to stand. As in Exhibit-69 in all 10 reliefs in terms of prayer clauses 'A' to 'J' are prayed. Out of the many reliefs sought by judgment debtor in application Exhibit-69, prayer clause 'I' reads as under:-
"I. To hold and declare that this Hon'ble Court has no territorial jurisdiction to entertain and decide application Ex. 54, 56 and 58 since he is permanent resident of Kolkata".
This relief sought by the judgment debtor in Exhibit-69 had been rendered infructuous by virtue of executing Court's order dated 07.01.2021 below Exhibit-54, issuing a show cause notice to the judgment debtor as to why he should not be arrested under Order XXI Rule 37 of "the Code, 1908". Therefore, merely asserting that it is still pending is of no help to the judgment debtor. Not only that, independent challenge to the order passed below Exhibit-54 has also failed up to this Honourable Court, without raising any submission on the ground of objection to the territorial jurisdiction when a prayer was to issue show cause notice for the purpose of execution of a money decree why he should not be committed to civil prison. Thus having failed to raise objection as to territorial jurisdiction of executing court at the first possible/available Page 62 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined opportunity, judgment debtor cannot be heard to say that he has so raised within no time. Therefore, there is no substance in the argument that the executing Court at Jamnagar has no territorial jurisdiction to execute the decree personally against the judgment debtor.
8. The argument on behalf of the judgment debtor that the executing Court has passed the impugned order declaring the judgment debtor as 'absconding', without there being no provision in "the Code, 1908" to do so, has nothing to do with the orders impugned in these petitions when judgment debtor vide application Exhibit-111 prayed to hold and declare that a competent Court at Kolkata will have exclusive territorial jurisdiction for execution of the impugned decree against the judgment debtor personally, which has been sought for by the decree holder. Since judgment debtor is neither appearing before the Court nor obeying the orders passed by the Court, for the purpose of territorial jurisdiction because of locus of the property, it is referred that the judgment debtor is absconding, and there is nothing wrong in it. By that, it cannot be said to be a perverse finding so as to reject the application Exhibit-111 in relation to objection of the territorial jurisdiction of the executing Court. As coming out from the order impugned at Page 63 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined para 36 of it, that despite request by the learned advocate for the decree holder in writing to the judgment debtor and his advocate to disclose judgment debtor's current address, he has chosen to remain evasive on the same. Even on or about 19.09.2020, decree holder's advocate sent an e-mail message to the judgment debtor's advocate Mr. Vivek B. Gupta requesting them to advise the current address of the judgment debtor in light of the fact that various notices sent to the judgment debtor's Kolkata address were returned stating that address moved. If without meaning 'absconding' as under "the Code, 1973", it is concluded in view of the aforesaid facts, as for the current address of the judgment debtor, response appears to be evasive, no fault can be found with the learned Judge, that too, while determining the issue of territorial jurisdiction of the executing Court. Hence, the said argument requires rejection.
8.1 The argument on behalf of the judgment debtor that though he didn't raise the issue of trritorial jurisdiction before the executing Court because there was no cause for him to raise the issue of territorial jurisdiction at any time before 03.09.2020, when the decree holder for the first time sought to Page 64 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined enforce the decree against him personally, is also misconceived. It is so said on the ground that immediately thereafter on 19.10.2020, judgment debtor raised the issue about executing Court lacking territorial jurisdiction to enforce the decree against him personally vide Exhibit-69, which is still pending adjudication by the executing Court. The aforesaid submission appears to be nothing but an eye-wash. Vide Exhibit-54, as disclosed hereinabove, the decree holder applied under Order XXI Rule 37 of "the Code, 1908" for notice to judgment debtor, as provided therein, to appear before Court and show cause why he should not be committed to civil prison for default in payment of decretal amount is nothing but an attempt, even admitted by the judgment debtor, an attempt to serve the decree personally. However, despite order passed below Exhibit-54 by the executing Court, issuing show cause notice, challenged by the judgment debtor, he failed to challenge the same even on the ground of lack of territorial jurisdiction of the executing Court. As such, the day on which execution proceedings filed, it was prayed for to be executed against the property as also person of the judgment debtor, and therefore, the date on which summons/notice is served of execution upon the judgment debtor, if at all he is to raise an Page 65 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined issue of territorial jurisdiction, has to be raised at the earliest possible opportunity. Having failed to raise the same, on service of summons/notice for the execution of a decree, even repeated opportunities were available and Exhibit-69, which contains 10 reliefs, out of which prayer clause 'I' reads as under:-
"I. To hold and declare that this Hon'ble Court has no territorial jurisdiction to entertain and decide application Ex. 54, 56 and 58 since he is permanent resident of Kolkata".
When a Court passed an order dated 07.01.2021 below Exhibit-54, it is rendered infructuous, as the very specific ground at least for Exhibit-54 and rest is already determined on territorial jurisdiction. Not only that, the order below Exhibit- 54 is already confirmed by this Court by way of Special Civil Application No. 1734 of 2021.
8.2 Reliance placed on the decision of the Division Bench of this Court in C.M. Smith and Sons Ltd. (Supra) is also misconceived. However, though this Court, in the aforesaid decision dealing with the entire Section 39 of "the Code, 1908", no issue fell for decision and determined with regard to the territorial jurisdiction of executing Court when it is Page 66 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined executed personally against the judgment debtor. In that case, Court was dealing with a situation where judgment debtor did not own any property within the territorial jurisdiction of the Court concerned but it sought an order of attachment over movable and immovable property of the judgment debtor located in another city i.e. outside territorial jurisdiction of the executing Court. Therefore, the reliance placed on the decision of C.M. Smith and Sons Ltd. (Supra) in support of argument is misconceived. Not only that, a misleading written submission at page 6 of it is made, quoting that para 23 to be the decision of this Court in the case of C.M. Smith and Sons Ltd. (Supra), whereas in para 23, a quotation from decision of Calcutta High Court in the year 1932, reported in AIR 1932 Cal. 213 came to be stated. Therefore, there is an attempt to state that Division Bench of this Court, in a binding decision, has so stated what is quoted at page 6 of the written submission. However, again in the said decision of Calcutta High Court, it specifically states that, the location of the debt is where the debtor resides where both the debt and the debtor are outside the jurisdiction of the executing Court, the Court being incompetent to sell the debts, the auction purchaser does not acquire the right to recover it by his purchase at Court sale. Page 67 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined Nowhere it is held in that decision, as sought to be submitted by the judgment debtor, that if decree is sought to be executed personally against the judgment debtor, it has to be by the Court where he actually and voluntarily resides. As such, conferring the jurisdiction on the executing Court either the person or property of the judgment debtor should be within the jurisdiction of that executing Court. Here in this case, property of the judgment debtor is situated within the jurisdiction of the executing Court, and therefore, that Court is having jurisdiction to execute the same by whatever mode and means, decree is to be executed. The territorial jurisdiction of the executing Court is to be determined by the locus of the judgment debtor or the property of the judgment debtor, even as per Section 39 of "the Code, 1908", and therefore, there is no merit in the submission made by the learned advocate for the judgment debtor and it is hereby rejected. 8.3 Though learned advocate for the judgment debtor relied on decision in the case of Mathura Prasad Bajoo Jaiswal (Supra) on the issue of res-judicata as also learned advocate for the decree holder has also relied on several judgments on the same issue. According to us, this issue need Page 68 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined not be examined as it is not required to be gone into when there is a clear territorial jurisdiction of the executing Court to execute the decree against the judgment debtor. However, these judgments are not dealt with further specifically in view of the aforesaid finding.
8.4 The submission that Section 39 of "the Code, 1908", more particularly after insertion of sub-section (4), when a person or property situated outside the local limits of jurisdiction of the executing Court is concerned, it cannot be executed. However, considering the provisions of Section 39 of "the Code, 1908", requirement for sending decree for execution to another Court of competent jurisdiction by a Court, which passed the decree would arise only when if the person against whom the decree is passed, actually and voluntarily resides or carries on business or personally works for gain within the local limits of jurisdiction of such other Court. However, in the execution application itself, by way of affidavit in support of tabular statement for execution seeking execution against the judgment debtor, a specific plea is raised in a tabular form itself as also in para 37 of the affidavit in support of tabular statement that the judgment debtor carries Page 69 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined on business and has immovable assets within the jurisdiction of the executing Court. The said assertion made in the execution application as also the affidavit in support of tabular statement for execution, there was no reply filed, denying even said assertion and now, it has been raised for the first time with a view to avoid execution by the judgment debtor. 8.5 For considering the submission of the learned Counsel appearing for the judgment debtor, it would be profitable to quote Section 39 of "the Code, 1908":-
"39. Transfer of decree.-- (1) The Court which passed a decree may, on the application of the decreeholder, send it for execution to another Court of competent jurisdiction,--
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or Page 70 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction."
Reading Section 39 of "the Code, 1908", according to us, Court which passed a decree may send it for execution to another Court of competent jurisdiction where person, against whom decree is passed, actually and voluntarily resides or carries on business or personally works for gain, within the local limits of jurisdiction of such other Court. Here, what appears is that the judgment debtor is carrying on business at Jamnagar also, where property of a company is situated and where he is one of the Directors, having residence from where office of a company is being run. Not only that, with non- Page 71 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024
NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined obstante clause in sub-section (4) of Section 39 of "the Code, 1908", what is prohibited is execution of a decree where neither person nor property is situated within the local limits of its jurisdiction. In our view, once in view of Section 39 of "the Code, 1908", the executing Court has jurisdiction, either judgment debtor carries on business or resides or having a property within the jurisdiction of it, it has a jurisdiction to entertain the execution of it. So far as mode of execution is concerned, whether it is to be executed against the property of the judgment debtor or personally against the judgment debtor, would be determined by the Court and no different Court is having jurisdiction, if either of the eventuality is satisfied. However, in the present case, both the eventualities are satisfied, and therefore, present executing Court has jurisdiction to entertain the execution proceedings. 8.6 If at all on the ground of Section 39 of "the Code, 1908", territorial jurisdiction of the executing Court is to be objected by the judgment debtor, in view of Section 39 read with Sections 21(1) and 21(3) of "the Code, 1908", it has to be raised at the earliest possible opportunity and no objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any appellate Page 72 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined or revisional Court, unless such objection was taken in the executing Court at the earliest possible opportunity and unless there has been a consequent failure of justice. The petitioner, in the present cases, has failed to do so, as recorded hereinabove. Therefore, it cannot be permitted to be raised, that too, in a petition under Article 227 of the Constitution of India.
8.7 As stated hereinabove, for execution of a decree in question, it has been sought to be executed against a person and/or against the property of the judgment debtor, which is admittedly situated within the local limits of the executing Court itself. Once executing Court has jurisdiction to entertain the execution proceeding, mode of executing the decree either against the property or personally against the judgment debtor is to be determined by the executing Court itself, and if at all any objection to the territorial jurisdiction while decree is sought to be executed personally has to be raised at the first available opportunity which, according to us, was available to the judgment debtor when the execution proceeding is filed as decree was prayed to be executed personally as also against the property of the judgment debtor. If not at that available opportunity, as discussed hereinabove, there were several Page 73 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined opportunities available, more particularly, when an application under Order XXI Rule 37 of Exhibit-54 was filed, it should have been objected to on the ground of territorial jurisdiction alone because decree is sought to be executed personally against the judgment debtor when show cause notice as to show cause why he should not be arrested and committed to civil prison when money decree is sought to be executed. Not only he has not raised this contention, when that order passed below Exhibit-54 was challenged before this Court, it is again not so challenged specifically, and therefore, it can very well be said that he has foregone that right. Not only such objection has to be raised at the earliest possible opportunity, it has to be first taken before the executing Court at the earliest possible opportunity and in addition thereto, it must be shown that there has been a consequent failure of justice because of that reason.
9. Here in the present case, the judgment debtor has failed to show that at the earliest possible opportunity, objection to the territorial jurisdiction of the executing Court, even if it is to be presumed that it has to be raised when it is sought to be executed personally, when application Exhibit-54 was filed by the decree holder, it was incumbent upon the judgment debtor Page 74 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024 NEUTRAL CITATION C/SCA/5890/2021 JUDGMENT DATED: 13/03/2024 undefined to object to even issuance of show cause notice to show cause as to why he should not be committed to civil prison in execution of a money decree. At the same time, judgment debtor has failed to show that because of it there is consequent failure of justice. Having failed to do so, as also having failed to obey the order of the Court for giving bank guarantee of Rs. 12 Crores (Rupees Twelve Crores), which order is confirmed up to the Supreme Court and considering the conduct of the judgment debtor, this Court, while exercising jurisdiction under Article 227 of the Constitution of India, will not entertain such belated objection as to the territorial jurisdiction despite several available opportunities earlier, with a view to frustrate the execution itself and further delaying it.
Hence, these petitions are required to be rejected with cost of Rs. 25,000/-, to be paid by the judgment debtor to the judgment creditor, within a period of four weeks from today.
(UMESH A. TRIVEDI, J.) (RAJENDRA M. SAREEN, J.) Raj Page 75 of 75 Downloaded on : Thu Mar 14 21:50:36 IST 2024