Bombay High Court
Algemene Bank Nederian NV
Versus
Satish bayalal Choksi
Decided On:

Headnote:Sections 26 (6) and 47 (3) (6)-Foreign Courts decree-Decree based on guarantee given contravention of Section 26 (6)-Its execution in India-Held, It cannot be executed in India without prior permission of Central Government or Reserve Bank.

       Under Section 47 (3) therefore, a suit for the enforcement of a guarantee for which permission of the Reserve Bank/Central Government would have been required under Section 26 (6) can be brought in India. Filing of a suit, therefore, on such a guarantee cannot be said to be contrary to any law in India because Section 47 sub-section (3) expressly permits such legal proceedings abroad cannot be said to be violative of any law in India. However, no steps can be taken for the purpose of entorcing any judgment or order for the payment of any sum under such a guarantee except in respect of so much thereof as the Central Government or the Reserve Bank may permit to be paid. With the result that before a foreign decree passed on such a guarantee can be executed in India, permission of the Reserve Bank or the Central Government for rea1i!ling such sum is necessary.

       Sections 13 (d) and 14 (f)-Foreign judgment-Where defendant failed to defend case in spite of ample opportunities given to him by foreign Court-There was no violation of natural justice in deciding case-ex-parte-It is not judgment on merits.

       In the present case the defendant was given sufficient opportunities both by the Hong Kong Court as well as by our Courts to ensure that he gets adequate opportunity to defend his case. The defendant has not made proper use of such opportunities which were given to him it cannot, therefore, be said that the principles of natural justice have been violated in any manner or that the proceedings in which a foreign judgment had been obtained are composed to the principles of natural justice. The decision of the Hong Kong Court is not given on examination of the points at controversy between the parties. It seems to have been given ex parte on the basis of the plaintiffs pleading and documents tendered by the plaintiff without going into the controversy between the parties since the defendant did not appear at the time of the hearing of the suit to defend the claim. The present judgment, therefore, is not a judgment on the merits of the case. Hence this is not a fit case where leave can be granted under Order 21. Rule 22 of the Civil Procedure Code for the purpose of executing the decree here.

       For Citation : AIR 1990 Bom 170 at 178