Calcutta High Court
N vs Abn Amro Bank on 23 March, 2011
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 2508 of 2005
CS No. 26 of 2005
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
N. V. ABN AMRO BANK
-Versus-
SURAJIT SEN
Appearance:
Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. Pratap Chatterjee, Sr. Adv.
Mr. Samit Talukdar, Sr. Adv.
Mr. Suman Datta, Adv.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : March 23, 2011.
The Court : The suit is in furtherance of a decree obtained outside India by the plaintiff. It was the plaintiff's claim in the foreign proceedings that the defendant herein was a guarantor in the relevant transaction. The plaintiff claims that the foreign suit has been decreed and the plaintiff is entitled to claim on the basis of the decree, subject, however to the restrictions as recognized in Section 13 of the Civil Procedure Code.
The present application has been filed for summary judgment under Chapter XIIIA of the Rules on the Original Side of this Court. 2
A preliminary point has been taken on behalf of the defendant that the application is not maintainable since it does not answer to the description of the claims which are amenable to Rule 1 of such Chapter. Rule 1 makes the provisions of the Chapter applicable to suits of two classes. Clause (A) enumerates four cases where the Rule would be applicable if the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant with or without interest. Clause (B) relates to recovery of immovable property which is irrelevant in the present context.
The four classes of claims that will permit an application for a summary judgment under such Chapter to be carried in furtherance thereof are:
i) If the plaintiff's claim is on a contract express or implied;
ii) If the money claim is on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;
iii) If the money claim is on a guarantee where the claim against the principal is in respect of a debt or liquidated demand only;
iv) If the money claim is on a trust.
It is not the plaintiff's case that any limb under clause (A) other than the third would be applicable. However, the plaintiff's cause of action 3 is no longer the contract that the defendant may have entered into with the plaintiff or the guarantee that the defendant may have furnished in favour of the plaintiff in connection with the plaintiff according credit facilities to another. The cause of action in the suit is the plaintiff's right under the decree obtained in the foreign proceedings and, clearly, the original cause of action under the contract or in respect of the guarantee has merged in the decree passed in the foreign suit.
Since it is evident that the provisions of Chapter XIIIA of the Rules on the Original Side of this Court will not be available to the plaintiff in furtherance of its cause of action in this suit, G.A.No.2508 of 2005 is dismissed as being not maintainable.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) A/s.