Delhi High Court
Century Metal Recycling Private ... vs Sachin Chhabra & Ors on 1 December, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st December, 2017.
+ CS(COMM) 449/2017, IA No.7571/2017 (under Order XXXIX
Rules 1&2 CPC), IA No.9903/2017 (under Order XXXVII Rule
3(4) CPC), IA No.9948/2017 and IA No.9949/2017 (both for
exemption), IA No.11585/2017 (under Order XXXVII Rule 3(5)
CPC), IA No.11586/2017 (under Order XXXVII Rule 7 CPC), IA
No.11587/2017 (under Order XXXVII Rule 3(5) CPC), IA
No.11588/2017 (under Order XXXVII Rule 7 CPC), IA
No.11589/2017 (under Order XXXVII Rule 3(5) CPC) and IA
No.11590/2017 (under Order XXXVII Rule 7 CPC)
CENTURY METAL RECYCLING PRIVATE
LIMITED .....Plaintiff
Through: Mr. Rahul Gupta and Mr. Shekhar
Gupta, Advs.
Versus
SACHIN CHHABRA & ORS ..... Defendants
Through: Mr. Manik Dogra and Mr. Aditya
Goyal, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has sued under Order XXXVII of the Code of Civil
Procedure, 1908 (CPC) for recovery of Rs.2,25,64,500/- jointly and severally
from the three defendants, namely (i) Sachin Chhabra, (ii) TCC Wireless
Inc., and (iii) Tarun Chhabra.
2. The suit was entertained and summons for appearance issued and on
the defendants entering appearance, summons for judgment served on the
defendants and the defendants have filed separate leave to defend
applications and which are listed for hearing today.
CS(COMM) 449/2017 Page 1 of 18
3. The counsel for the plaintiff has at the outset drawn attention to the
order dated 13th July, 2017, vide which the personal presence of the
defendants no.1&3 was directed for 31st August, 2017, and to the order dated
31st August, 2017, when the counsel for the defendants was asked to inform
as to when the defendants no.1&3 whose addresses given in the plaint are of
United States of America (USA), are coming to India. The counsel for the
plaintiff states that the personal presence of the defendants no.1&3 before
this Court has to be enforced.
4. I have enquired from the counsel for the plaintiff, the reason for which
the personal presence was so directed.
5. The counsel for the plaintiff states, "to furnish security for the suit
amount".
6. I have enquired from the counsel for the plaintiff, whether not once
leave to defend applications are heard and if leave is not granted, the plaintiff
would be entitled to decree straightaway and the need for directing the
defendants to furnish security would also not arise.
7. Else, it prima facie appears, that if the statement under Order X of the
CPC were to be recorded of the defendants no.1&3, the suit would inter alia
be converted into an ordinary suit and for which the counsel for the plaintiff
is not agreeable.
8. The counsels have thus been heard on the leave to defend applications.
9. The plaintiff has sued, pleading (i) that the defendant no.2 TCC
Wireless Inc. is a company duly registered and incorporated under the laws
of USA and the defendant no.3 Tarun Chhabra is the majority shareholder
CS(COMM) 449/2017 Page 2 of 18
and Director in-charge and responsible for all the affairs and business of the
defendant no.2 TCC Wireless Inc.; (ii) the defendant no.1 Sachin Chhabra is
the brother of the defendant no.3 and has executed a personal guarantee in
favour of the plaintiff for payment of the amount claimed in the present suit;
(iii) that the defendants no.1&3 have been residing and carrying on business
in United States of America but are citizens of India, holding Indian
passports; (iv) that on 5th February, 2016 a summary judgment was passed by
the Court of United States District Court for the District of Maryland
(Northern Division), in favour of the plaintiff and against Metal Worldwide
Inc. in the sum of US$ 7,00,000/- together with interest at 15% per annum
from 1st April, 2011 to 5th February, 2016; however the suit was kept
pending for decision on other issues; a compromise was entered into between
the parties and a joint motion of compromise dated 20 th July, 2016 signed
between the parties and filed for entry of consent judgment and for
withdrawal of remaining un-resolved counts; (v) that as per the said
compromise it was agreed that a judgment be passed in favour of the plaintiff
and against the defendant no.2 TCC Wireless Inc. in the sum of US$
3,50,000/- with the said amount bearing interest in accordance with 28
U.S.C. 1961; it was also agreed that the defendant no.2 TCC Wireless Inc.
shall pay attorney‟s costs, etc. to the plaintiff; (vi) it was also mentioned in
the joint motion that the defendant no.1 Sachin Chhabra shall furnish his
personal guarantee to secure the payment in favour of the plaintiff in terms
of joint motion so that the judgment on the basis of consent terms be
satisfied; (vii) that the defendant no.1 Sachin Chhabra in furtherance of the
joint motion also submitted his personal guarantee dated 20th July, 2016;
(viii) that despite the consent judgment dated 5th August, 2016 and the
CS(COMM) 449/2017 Page 3 of 18
personal guarantee dated 20th July, 2016 having been executed, the
defendants have not paid the judgment amount and the interest accrued
thereon till now; (ix) the plaintiff is filing the present suit for recovery of
Rs.2,25,64,500/- with interest at 12% per annum from 20th July, 2016 to the
date of institution of this suit and claims pendente lite and future interest;
and, (x) that the plaintiff is filing the present suit on the basis of the
aforesaid.
10. The counsel for all the three defendants, on behalf of the defendant
no.3 Tarun Chhabra has contended that he had merely signed the joint
motion filed in the US Court on behalf of the defendant no.2 TCC Wireless
Inc. which is a juristic entity and thereby the defendant no.3 Tarun Chhabra
did not incur any personal liability and the claim of the plaintiff against the
defendant no.3 Tarun Chhabra is misconceived.
11. The counsel for the plaintiff has fairly agreed and states that the suit
amount has not been claimed personally from the defendant no.3 Tarun
Chhabra and that he has been impleaded merely as a President of the
defendant no.2 TCC Wireless Inc.
12. In this view of the matter, not only is the defendant no.3 Tarun
Chhabra entitled to leave to defend but the suit, even as an ordinary suit,
would not survive against the defendant no.3 Tarun Chhabra.
13. The first contention of the counsel for the defendants, on behalf of the
defendants no.1&2 is that the suit does not fall in the classes of suits to
which Order XXXVII of the CPC is applicable.
14. No merit is however found in the aforesaid contention. The suit
against the defendant no.2 TCC Wireless Inc. has been filed on the basis of a
CS(COMM) 449/2017 Page 4 of 18
joint motion filed in the US Court and the suit against the defendant
no.1Sachin Chhabra has been filed on the basis of guarantee executed by the
defendant no.1 Sachin Chhabra in favour of the plaintiff.
15. The counsel for the defendants has contended that the joint motion
filed by the plaintiff and the defendant no.2 in the US Court has crystallised
in a judgment and does not remain a written contract between the plaintiff
and the defendant no.2 TCC Wireless Inc.
16. I am unable to agree. A consent judgment retains the character of a
contract and it is for this reason only that the Courts have held that a consent
judgment cannot be altered or modified by the Court without the consent of
the parties who had consented thereto. Thus, notwithstanding the joint
motion having crystallised to a judgment of the US Court, the same does not
lose its character as a written contract within the meaning of Order XXXVII
Rule 1(2)(b)(i) of the CPC. Similarly, the guarantee executed by the
defendant no.1 Sachin Chhabra in favour of the plaintiff guaranteeing the
payment by the defendant no.2 TCC Wireless Inc. of the amount due under
the joint motion / judgment of the US Court is also expressly covered by
Order XXXVII Rule 1(2)(b)(iii) of the CPC. There is thus no merit in the
contention that the suit against the defendants no.1&2 is not maintainable
under Order XXXVII of the CPC.
17. The only other argument of the counsel for the defendants on behalf of
the defendants no.1&2 is that this Court does not have territorial jurisdiction
to entertain the suit. Attention in this regard is drawn to the clause in the
guarantee as under:-
CS(COMM) 449/2017 Page 5 of 18
"In any confession of judgment action necessary to
enforce the consent judgment, Chhabra hereby consents to
personal jurisdiction and venue in the state or federal courts
located in Baltimore, Maryland or in any jurisdiction in which
he has property at the time any enforcement action is needed,
irrevocably waives personal service for any action taken to
collect the Consent Judgment award, and waives demand or
presentment for payment, notice of dishonour, protest, and
notice of protest in advance or as a condition of Plaintiff's
taking action to collect on the Consent Judgment, including
Century's filing suit for confessed judgment against Chhabra.
Chhabra waives the benefit of any and every statute, ordinance,
or rule of court which may be lawfully waived conferring upon
Chhabra any right or privilege of exemption, homestead rights,
appeal, stay of execution or supplementary proceedings,
inquisition, extension upon any levy on real estate or personal
property, and any other relief from the enforcement or
immediate enforcement of a judgment or related proceedings on
a judgment. A final judgment in any such action or proceeding
shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner
provided by law. This remedy for default by TCC is not
exclusive and Century reserves the right to undertake any
remedy available to it under the law to collect any outstanding
balance under the consent judgment."
and to following clauses of the joint motion:-
"k. Defendants agree to the uncontested enforcement of this
Consent Judgment in any jurisdiction where their assets
are present. Defendants expressly waive moving to
dismiss or otherwise contesting Plaintiff's enforcement of
this Consent Judgment in any jurisdiction. To the extent
that the jurisdiction where enforcement of this judgment
is sought recognizes "confessions of judgment," then
Defendants consent to the entry of same to facilitate
execution of such judgment to expedite collection
CS(COMM) 449/2017 Page 6 of 18
proceedings.
l. Defendants waive the service of process requirements of
the November 15, 1965 Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil
or Commercial Matters ("Hague Convention"). TCC
consents to service of process in any enforcement
proceedings being effected upon it by registered mail sent
to TCC the following address: Sachin chhabra, 4334
Plaza Gate Lane South, # 301, Jacksonville, Florida
32217. It is the obligation of TCC to update Plaintiff of
any such change of address. Otherwise, TCC consents
that process or notices sent to it shall be valid when sent
to the above address. Any change of address by TCC
shall be made to Plaintiff via Mr. Rajiv Kaushal, 120
College Street, 600 Plaza Middlesex, Middletown, CT
06457."
(emphasis added)
18. The counsel for the defendants has argued that the plaintiff has
invoked the territorial jurisdiction of this Court by pleading the defendant
no.1 Sachin Chhabra to be having an asset in the form of a property at Lajpat
Nagar, New Delhi; that the only other asset in India pleaded of the defendant
no.1 Sachin Chhabra is a house at Pune. It is stated that as far as the Lajpat
Nagar house is concerned, the defendants along with their leave to defend
applications have placed before this Court documents to show sale thereof in
a Court proceeding in the year 2007 i.e. much prior to the institution of this
suit and thus this suit could not have been instituted in the year 2017 on the
basis of the said property at Lajpat Nagar, New Delhi. With respect to the
property at Pune, it is stated that the defendants in their leave to defend
applications have pleaded not having any right, title, interest or share therein
CS(COMM) 449/2017 Page 7 of 18
and the same to be belonging to the sister of the defendants no.1&3. On
enquiry, though it is stated that no documents with respect to the Pune
property have been filed but it is further stated that the same can be filed. It
is also the argument of the counsel for the defendants that no cause of action
for the suit has accrued to the plaintiff at Delhi; the plaintiff has instituted the
suit on the basis of cause of action qua the transaction, on the basis of which
claim in the US Court was filed, having accrued to the plaintiff at Delhi but
the said cause of action has crystallised in the judgment of the US Court and
the cause of action for the present suit is the joint motion and the judgment
of the US Court and the guarantee executed by the defendant no.1 Sachin
Chhabra and all of which admittedly happened in US and this Court would
not have territorial jurisdiction to entertain the suit.
19. The counsel for the defendants has also drawn attention to the
following clause in the joint motion:-
"j. Expressly for purposes of enforcing this judgment
in India, the Parties agree that this Consent Judgment is
conclusive, and it:
i. Has been pronounced by a court of
competent jurisdiction;
ii. Has been given on the merits of the case;
iii. Is founded on a correct view of international
law;
iv. Is contained in proceedings that followed
principles of natural justice;
v. Has not been obtained by fraud; and
vi. Does not sustain a claim on a breach of any
law in force in India."
so as to be not blamed of any concealment.
CS(COMM) 449/2017 Page 8 of 18
20. A perusal of the plaint shows the plaintiff to have therein pleaded as
under:-
"18. That it is stated that the plaintiff is filing the
present suit on the basis of joint motion and stipulation
for entry of consent judgment dated 20.7.2016 submitted
by the parties before Hon'ble Distt. Courts United States
and the personal guarantee dated 20.7.2016 furnished by
defendant No.1 Mr. Sachin Chhabra and order /
judgment of dated 5.8.2016 passed by United States Distt.
Courts as mentioned herein above.
19. That it is stated that the claims of the plaintiff
company are crystal clear and undisputed and based on
consent terms filed by the parties before Hon'ble United
States Distt. Courts and followed by order of consent
dated 5.8.2016 as mentioned herein above together read
with the personal guarantee bond dated 20.7.2016
furnished by defendant No.1 Mr. Sachin Chhabra.
21. That it is stated that the cause of action to file the
present suit arose on 5.2.2016 when the Hon'ble United
States Distt. Courts passed a summary judgment in favour
of the plaintiff company and against the defendants in the
sum of US$ 7,00,000/- along with interest and attorney
fees. The cause of action further arose on 20.7.2016 when
the parties filed a joint motion and defendant no.1 also
submitted his personal guarantee before United States
Distt. Courts and also arose on 5.8.2016 when the
Hon'ble Court of United States Distt. Courts passed
order / judgment on 5.8.2016. The cause of action arose
when the defendants despite the aforesaid consent order
and personal guarantee have not paid the amount to the
plaintiff. The cause of action to file the present suit
continues to exist on the date of filing of the present suit."
and to have invoked territorial jurisdiction of this Court pleading as
CS(COMM) 449/2017 Page 9 of 18
under:-
"22. That this Hon'ble Court has territorial jurisdiction
by try, entertain and decide the present suit since
defendant no.1 i.e. Sachin Chhabra (defendant no.1) is a
permanent resident at 1 Ring Road, Lajpat Nagar IV,
New Delhi. The cause of action also arose within the
jurisdiction of this court since all the advance payments
were made by the plaintiff company to the defendants
through the plaintiff's bank at New Delhi. All negotiation
between the parties were held by exchange of email at the
registered office of the plaintiffs at New Delhi. The
business deals had happened between the parties at New
Delhi and even the supply of goods were to be made by
the defendants to the plaintiff company at New Delhi. It
was also agreed by the parties in the joint motion which
was filed before the Distt. Court in Maryland USA that
the consent order passed on the joint can be enforced in
India and for the purpose the said consent which is
conclusive."
21. The argument of the counsel for the plaintiff is also on above lines. It
is argued that in the transaction between the plaintiff and the defendants,
though the defendants were situated at USA but the plaintiff was situated at
India and the payments were made by the plaintiff to the defendants from the
bank of the plaintiff at New Delhi and all negotiations between the parties
were by exchange of e-mails from the registered office of the plaintiff at
New Delhi.
22. I have enquired from the counsel for the plaintiff, whether not the
plaintiff, on the basis of the aforesaid cause of action, instead of choosing to
sue the defendants in India chose to sue the defendants in the Courts at USA
and whether not that cause of action has now merged in the proceedings and
judgment of the US Court. I have further enquired, whether not the plaintiff
CS(COMM) 449/2017 Page 10 of 18
has chosen to institute this suit, not on the original cause of action but on the
basis of judgment obtained from the U.S. Court on the basis of original cause
of action.
23. The claim of the plaintiff in this suit against the defendants is not on
the basis of the same cause of action on which the plaintiff has already
chosen to invoke the jurisdiction of the US Courts and obtained judgment
therefrom. The cause of action for the present suit is on the basis of foreign
judgment and guarantee executed in pursuance thereto, as is evident from the
paragraphs of the plaint reproduced above, and which cause of action has
accrued to the plaintiff in foreign lands only and not within the territory of
this Court. The plaintiff has sued under Order XXXVII, only on the basis of
foreign judgment and not the original cause of action.
24. The counsel for the plaintiff then contends that if that were to be so,
then there would have been no need for Section 13 of the CPC.
25. I am afraid, Section 13 of the CPC does not provide for filing of a suit.
Section 13 merely provides for cases in which a foreign judgment would be
conclusive and in which it would not and though undoubtedly on the foreign
judgment of a territory with which India does not have reciprocity treaty, a
suit can be filed in India but the plaintiff would still have to show that the
cause of action therefor accrued within the territory of India, jurisdiction
whereof is invoked or that the defendant, at the time of commencement of
suit, actually and voluntarily resides or carries on business or personally
works for grain within the said territory. If no cause of action is shown to
have accrued within the jurisdiction of this Court or if the defendants are not
shown to be so residing in or carrying on business within the jurisdiction of
CS(COMM) 449/2017 Page 11 of 18
this Court, nothing in Section 13 of the CPC can entitle the plaintiff to
institute a suit in this Court.
26. I find a Division Bench of the High Court of Madras, as far back as in
S. Jayam Sunder Rajaratnam Vs. K. Muthuswami Kangani AIR 1958
Mad. 203, to have held that a suit on the basis of foreign judgment would not
be maintainable for want of jurisdiction in a Court within whose jurisdiction
the defendant did not reside, even if has immovable properties within the
jurisdiction of that Court, as the presence of immovable properties would not
give rise to cause of action for recovery of money due under a foreign
judgment.
27. I also find Supreme Court in Badat and Co. Bombay Vs. East India
Trading Co. AIR 1964 SC 538 to have been concerned with a foreign
judgment based on a foreign award. The question for consideration was,
whether the foreign judgment could be enforced against the defendants by
instituting a suit on the Original Side of the High Court of Bombay within
whose jurisdiction the defendants at the time of institution of the suit were
admittedly not residing. It was held by the Division Bench of the High Court
of Bombay that the original cause of action having arisen wholly or in part
within the limits of the original jurisdiction of the High Court, the suit was
maintainable. Supreme Court however held (i) if the plaintiff was suing
upon the original cause of action, there would have been no difficulty and
the High Court could have granted leave under Clause 12 of the Letters
Patent for Bombay to the plaintiff to institute the suit; (ii) however the
plaintiff had chosen to sue not on the original cause of action but on the basis
of the foreign judgment and the arbitral award; (iii) the judgment furnishes
CS(COMM) 449/2017 Page 12 of 18
an independent cause of action; (iv) the question would be, whether the
cause of action furnished by it arose between the limits of original
jurisdiction of the High Court; (v) the judgment was rendered in New York
and therefore the cause of action furnished by it arose at that place and not
anywhere else; (vi) this cause of action is really independent of the cause of
action afforded by the contract and therefore if advantage was sought to be
taken of it, the suit would not lie at Bombay; (vii) the Doctrine of Merger has
been consistently held in England not to apply to a foreign judgment, with
the result that despite the fact that a plaintiff has obtained a foreign
judgment, he may nevertheless sue upon the original cause of action, instead
of upon the judgment; (viii) when the plaintiff sues upon the original cause
of action, no doubt the Court within whose jurisdiction, the cause of action
arose, would be entitled to entertain the suit; (ix) but if on the other hand, the
plaintiff chooses to sue upon the judgment, he cannot found jurisdiction for
the institution of the suit on the basis of the original cause of action because
once he chooses to rest himself on the judgment obtained by him in a
Foreign Court, the original cause of action will have no relevance
whatsoever, even though it may not have merged in that judgment; (x) since
the plaintiff in that case had chosen to sue on the foreign judgment and cause
of action whereof did not arise within the limits of the original jurisdiction of
the High Court of Bombay, the suit based upon that judgment was beyond
the jurisdiction of the Court.
28. Contrary to what I thought, as per aforesaid dicta, cause of action
available to the plaintiff did not merge in the judgment of Courts of USA
obtained by the plaintiff on said cause of action and it was open for the
plaintiff to again sue on the same cause of action in this Court if the cause of
CS(COMM) 449/2017 Page 13 of 18
action had accrued in territorial jurisdiction of this Court and if the suit claim
was within time. However the plaintiff herein has not done so.
29. I have already hereinabove, on a reading of the plaint found that the
plaintiff in the present case has sued on the basis of foreign judgment and not
on the basis of original cause of action. The same has been the tenor of the
arguments of the counsel for the plaintiff. It is for this reason only that the
counsel for the plaintiff has invoked Section 13 of the CPC and the plaintiff,
while agreeing to the joint terms before the Foreign Court, is also found to
have insisted on recording that the requirements of Section 13 of the CPC are
fulfilled by the consensual foreign judgment. The plaintiff cannot now, upon
the territorial jurisdiction of this Court having been challenged, fall back on
the original cause of action.
30. As far as the plea of the plaintiff, of the permanent place of residence
of the defendants being within the territorial jurisdiction of this Court,
Section 20 of the CPC permits the defendant to be sued within the
jurisdiction of the Court in which the defendant "actually and voluntarily
resides" and not within whose jurisdiction the defendant has permanent place
of residence. Neither the defendant No.1 nor the defendant No.2 in the
present case are pleaded to be actually and voluntarily residing or carrying
on business within the territorial jurisdiction of this Court. The words
"actually and voluntarily resides" are of some import and do not allow
interpretation of Section 20 to vest jurisdiction in Court within whose
territorial jurisdiction passport address of the defendant is or within whose
territorial jurisdiction the permanent place of residence disclosed by the
defendant in any other document, is situated or within whose jurisdiction
CS(COMM) 449/2017 Page 14 of 18
property of the defendant is situated.
31. Supreme Court in Mohannakumaran Nair Vs. Vijayakumaran Nair
(2007) 14 SCC 426, held the Court in Kerala to be not having territorial
jurisdiction because the defendant, at the time of institution of suit was
residing in Saudi Arabia. It was further held that the subsequent change of
the residence of the defendant, to within the jurisdiction of Kerala Court was
immaterial as the relevant date is the date of institution of suit. It was further
held that plaintiff is the dominus litus, but he can file a suit only in
accordance with the CPC and not at any place where he desires. It was yet
further held that it is one thing to say that a party has his residence in India
but when the party is residing elsewhere, the suit could be filed only where
the party is so residing at the time of institution of suit.
32. Moreover, just like the plaintiff is holding the defendants to be bound
by the foreign judgment and by the guarantee furnished in pursuance thereto,
so is the plaintiff bound thereby and the plaintiff therein has agreed to
enforce the consent terms and the judgment in terms thereof where the assets
of the defendants are present. Though the plaintiff realising so has pleaded
the asset of the defendants at New Delhi but the counsel for the plaintiff is
unable to controvert that the documents placed by the defendants before this
Court along with their leave to defend applications unequivocally show the
defendant no.1 Sachin Chhabra to be not having any right, title, share or
interest in the property at Lajpat Nagar, New Delhi. No other property within
the territorial jurisdiction of this Court has been disclosed. Though the
counsel for the plaintiff has also argued that the defendants no.1&3 are filing
their Income Tax returns in India but on enquiry whether the same disclose
CS(COMM) 449/2017 Page 15 of 18
any assets in India has not been able to show any. Without the plaintiff being
able to show even prima facie before this Court any assets of the defendant
no.1 Sachin Chhabra or the defendant no.2 TCC Wireless Inc. in India, as
per the consent terms, the plaintiff cannot enforce the joint motion / consent
terms / foreign judgment in this Court and for which purposes the present
suit has been filed.
33. The counsel for the plaintiff has then contended that a perusal of
clause „j‟ supra of the joint motion as reproduced above shows it to be in
contemplation of the parties that the judgment may be enforced in India.
34. Clause „j‟ of the joint motion as reproduced above is paying lip service
to the requirements of Section 13 of the CPC and ensuring that in the event
of the plaintiff being entitled to enforce the judgment in India, the plaintiff is
not faced with the defences which make a foreign judgment inconclusive in
India. However clause „j‟ cannot be read as a clause pertaining to territorial
jurisdiction. If the plaintiff had been able to show any assets of the
defendants no.1&2 within the territorial jurisdiction of this Court, the
counsel for the defendants also does not dispute that this Court would have
territorial jurisdiction (though the view of the Division Bench of Madras
High Court is otherwise).
35. The only two other arguments of the counsel for the plaintiff are that
clause „k‟ of the joint motion as reproduced above also provides that the
defendants waive contesting the plaintiff‟s enforcement of consent judgment
in "any jurisdiction" and that the plaintiff in the plaint has also pleaded that
the defendant no.1 Sachin Chhabra is a permanent resident of New Delhi and
is carrying Indian passport.
CS(COMM) 449/2017 Page 16 of 18
36. As far as the first of the aforesaid contentions is concerned, the same
cannot be read de hors the remaining part of clause „k‟. In the first part of
clause „k‟ the parties have agreed to enforcement of the consent judgment in
jurisdiction where the assets of the defendants are present. In my view, a
wholesome reading of clause „k‟ would not entitle the plaintiff to enforce the
consent judgment even in a jurisdiction where the defendants do not have
any asset. The words "any jurisdiction" have to be read as meaning any
jurisdiction in which the assets of the defendants are present. Not only so, it
is the settled principle that by consent, jurisdiction cannot be vested in a
Court. Reference if any required may be made to Harshad Chiman Lal
Modi Vs. DLF Universal Ltd. (2005) 7 SCC 791.
37. As far as the second of the aforesaid contentions is concerned, as
aforesaid, the words used in Section 20 of the CPC are "where the defendant
actually and voluntarily resides or carries on business or personally works
for gain" and not the place where the defendant is permanent resident of or
the place from where the passport of the defendant is issued. There is no plea
that the defendant no.1 Sachin Chhabra actually resides or carries on
business within the territorial jurisdiction of this Court. The plaintiff, in the
plaint has not pleaded any business of the defendants within the territorial
jurisdiction of this Court or even given the place of residence of the
defendant no.1.
38. There is thus no merit in the said contentions either. Moreover, the
aforesaid contentions are available only qua the defendant no.1 Sachin
Chhabra and not qua the defendant no.2 TCC Wireless Inc.
39. Though the counsel for the plaintiff has also contended that the
CS(COMM) 449/2017 Page 17 of 18
defendants have in their leave to defend applications not disputed their
liability for the monies claimed and has called upon this Court to consider
the plight of the plaintiff, who for the reason of heavy costs required to be
incurred for enforcing the judgment in US or in any other jurisdiction where
the defendants have assets is unable to do so but I am afraid the same cannot
constitute legal grounds to entertain a suit when this Court is not found to
have territorial jurisdiction. I have however called upon the counsel for the
defendants to attempt to have the controversy amicably resolved, to prevent
further litigation. The counsel for the defendants states that he will
communicate the same.
40. Having found this Court to be lacking territorial jurisdiction to
entertain the suit, not only are the defendants no.1&2, against whom only the
suit claim lies, are entitled to leave to defend but the suit is also dismissed
with liberty to the plaintiff to approach the Court of appropriate jurisdiction.
No costs.
RAJIV SAHAI ENDLAW, J.
DECEMBER 01, 2017 „pp‟/bs..
(corrected & released on 28th December, 2017) CS(COMM) 449/2017 Page 18 of 18