2011 Supreme(Bom) 641

2011 (4) ALLMR 714
High Court of Judicature at Bombay
JUSTICE S.J. VAZIFDAR
Dhirajlal alias Dhirubhai Babaria & Others
Versus
Navinbhai C. Dave & Others
NOTICE OF MOTION NO. 726 OF 2011 IN SUIT NO. 536 OF 2011
Decided On: 14-06-2011

Headnote:Civil Procedure Code, 1908 - Section 13-Foreign judgment-Decree of recovery of amount-Foreign decree sought to be deemed of this Court-Suit for-Notice of motion for interim reliefs-Settlement agreement and valuation of property-Consideration to-Foreign Court while considering it also considered answer filed by defendants-Evidence can form basis of rational conclusion-Judgment satisfies test of Section 13 of Act-Plaintiff entitled to interim reliefs.-The Court had before it not merely the motion for summary judgment, but also an affidavit in support therefore. That affidavit appears to be the evidence of plaintiff No. 1 in support of the petition and the motion for summary judgment. The defendants did not file a reply thereto. There was, therefore, evidence before the Court. Whether it was rightly accepted or not, is another matter. It is doubtful whether, while considering a suit of this nature, the Court is entitled to substitute its interpretation of a document or the evidence for that of the foreign Court, Court would hesitate at the interlocutory stage to hold that the evidence was such that is could not form the basis of a rational conclusion.

       Court must clarify that it does not for a moment suggest that the matter is free from doubt. Indeed, there is much to be said in favour of the defendants. The matter certainly requires deeper consideration at the final hearing. However, unable at this stage of the proceedings to come to the conclusion that the judgment is absurd and does not satisfy the test of Section 13. That being so, the plaintiff would be entitled to protect their interests under the foreign judgment and decree subject to any other consideration.

       Civil Procedure Code, 1908 - Section 13-Foreign judgment-Decree of recovery of amount-Foreign decree sought to be deemed of this Court-suit for order-Notice of motion for interim reliefs-Issue of jurisdiction-Foreign Court held that defendants entered appearance and accepted jurisdiction of Court by filing answers with their transmittal letters-Question of jurisdiction considered-Plaintiff entitled to interim relief.-The Judge held that the defendant No. 1 and defendant No. 2 had entered an appearance in the action and accepted the jurisdiction of the Court for all purposes by filing an answer with their transmittal letters dated 17th December, 2009 and 2nd February, 2010, respectively. The question of jurisdiction was thus considered. Whether the extent of consideration was adequate to meet the test of Section 13 or not is undoubtedly an important point. Court would, however, leave the issue to be decided at the final hearing of the suit. Court is not inclined, at this stage, to brush aside the judgment on the ground of non-application of mind or even non-consideration of the issues. It is a moot point whether a judgment fails the test under Section 13 merely because it is passed on one ground and does not deal with every contention even in a case where it is sufficient to uphold a plea on that ground alone. In other words, even if the other contentions are answered in favour of the defendants, if the issue must on another ground in any even be answered in favour of the plaintiff it is doubtful it can be said that the judgment based on that ground is not on merits.

       Civil Procedure Code, 1908 - Section 13-Foreign judgment-Foreign decree of recovery of amount-Notice of motion for interim reliefs-Defendants remained absent before Foreign Court-Defendants entered into various agreements and disposed of large part of property-Established by their affidavits-They refused offer of plaintiffs to set aside Foreign judgment and to have proceeding heard de novo-Shown Complete reluctance to have dispute adjudicated before any forum-Plaintiffs entitled to interim relief.-In the facts of this case, an injunction of the nature Court intends passing would meet the ends of justice. A case for the same has been made out. The defendants remained absent before the foreign Court. It is not their case that they were unable to remain present or to have themselves duly represented for any reason. The affidavit in support establishes that defendant No. 2 has entered into various agreements whereunder it has disposed of a large part of the property being developed by it. The property which is the subject-matter of the settlement agreement dated 9th May, 2005, is also encumbered. Proceedings are pending between the defendants and third parties. The defendants have even refused the offer fairly made by the plaintiffs to have the foreign judgment set aside and to have the proceedings heard de novo. They have shown a complete reluctance to have the disputes adjudicated in any manner before any forum even in this country. In these circumstances, the plaintiffs are entitled to some protection.

       Civil Procedure Code, 1908 - Section 13-Foreign judgment -Foreign decree of recovery of amount-Passed for more amount than sought by plaintiff-Notice of motion for interim reliefs-Motion and affidavit in support thereof served upon defendants admittedly -Plaintiff entitled to interim relief.-In the plaint, a decree was sought for a sum of US $5,500,000/-. However, the judgment has awarded an amount of US $7,500,000/-. Mr. Tulzapurkar submitted that the same constituted a breach of natural justice. The submission, however, was founded on the erroneous basis that the defendants had no knowledge of this increased claim. It is admitted now that the motion and the affidavit in support thereof were served upon the defendants. Whether under the laws of the State of Texas, an amount in excess of that claimed in the plaint can be granted in this manner can be decided at the final hearing of the suit. There is insufficient material to decide the same at this stage.