Back
2013 Supreme(Bom) 2453
HIGH COURT OF JUDICATURE AT BOMBAY
ROSHAN DALVI, J.
Zinnia Mehernoosh Khajotia & Others
Notice of Motion No. 1580 of 2013 in Suit No. 2519 of 2010
Decided on: 09-12-2013
For the Plaintiffs :Zal Andhyarujina, Sharan Jagtiani, a/w. Girish dave, Ms. Monika Naik, Hussain Somji i/b. Dave & Girish & Co. Advocates.
For the Defendants :Pradeep Sancheti, Sr. Counsel a/w. Ram Kakkar, Shantanu Singh & Adhiraj Malhotra i/b. Dutt Menon Dunmorrsett, Advocates.
Headnote:
Foreign Judgment - Estate of Deceased - Section 13 of the CPC - 13(a), 13(b), 13(c), 13(d), 13(e), 13(f) - The judgment discusses the application of Section 13 of the CPC to a foreign judgment, specifically focusing on whether the judgment was given on the merits of the case and the circumstances under which a foreign judgment may not be conclusive. The court analyzed various precedents and legal principles to determine the conclusive nature of the foreign judgment in question.
Fact of the Case:
The plaintiff filed a suit seeking declaration that the suit property forms part of the estate of a deceased individual and for appointment as the administrator on behalf of the General Body of Creditors. The defendants, who were the wife and son of the deceased, resisted the application, claiming that the estate was worthless and that there were no assets. The plaintiff sought to proceed against the estate of the deceased and attempt to enforce the judgment in India.
Finding of the Court:
The court found that the defendants did not defend the plaintiff's claim on merits and allowed the plaintiff to proceed against the estate of the deceased. The court passed a summary judgment in favor of the plaintiff, concluding that there was no real prospect of success for the defendants in the suit.
Issues: The issues involved the applicability of Section 13 of the CPC to a foreign judgment, the determination of whether the judgment was given on the merits of the case, and the defendants' resistance to the plaintiff's claim against the estate of the deceased.
Ratio Decidendi: The court analyzed various precedents and legal principles to determine that the foreign judgment was given on the merits of the plaintiff's claim, as the defendants did not raise any defense or contest the plaintiff's evidence. The court also considered the circumstances under which a foreign judgment may not be conclusive under Section 13 of the CPC.
Final Decision: The court dismissed the defendants' application to reject the plaint under Order 7 Rule 11 of the CPC, finding that the suit was not barred by Section 13 of the CPC and was not against the public policy of India. The suit was allowed to proceed to trial.
1. The above suit is filed for declaration that the suit property forms a part of the estate of one Captain M.R. Khajotia, since deceased for appointment of the plaintiff as the administrator on behalf of the General Body of Creditors for taking possession of the properties and the title deeds of the properties forming the estate of the deceased, for disclosing the entire estate of the deceased and for the incidental acts of giving public notice, selling off the properties and utilising the proceeds to satisfy the claims of the creditors and to handover possession as per the claims of the creditors.
2. The plaintiff was the creditor of the deceased under certain loans and advances. The deceased had acknowledged his liabilities to repay the loans and credits. The plaintiff had sued in the Queens Bench Division of the Royal Courts of Justice in London, England, U.K. A moratorium was granted to the deceased. The plaintiff refrained from prosecuting the suit upon the deceased agreeing to repay the debts as agreed by the parties. The deceased failed to perform his obligations under such agreement. The plaintiff sought to pursue the suit to lift the stay granted. In the meantime Captain Khajotia expired on 2nd March, 2006. Defendant Nos. 1 and 2 who are the wife and son of the deceased sought control of the estate of the deceased. The plaintiff sought to pursue his claim against the defendants through his Solicitor's notice. The plaintiff sought to join all the heirs of deceased in the application to lift the stay of the suit and to proceed against the estate of the deceased under the special provision in that behalf contained in the Civil Procedure Rules 19.8.
3. The application was resisted by the defendants on the ground that the estate of the deceased was worthless and that there were no assets and there were no cash sums which passed to the family of the deceased.
4. The defendants filed their affidavits in the English Court. The defendants claimed that there was no genuine purpose which would be achieved by allowing the claim to proceed against such estate. The Court considered the position in England as well as in India of small estates where “there is no point in incurring costs of appointing personal representatives”. The defendants' contention was raised on the ground that there were no assets as also on the ground that the defendants were resident and domiciled in India and did not live in England. The English Court, after setting out the entire history of the litigation did not join the defendants as parties to the proceedings, but allowed the plaintiff to proceed in the absence of persons representing the estate of the deceased.
5. The defendants herein, as the respondents therein, led evidence and the Court considered the evidence as is manifest from para 10 of the order dated 2nd June, 2009. The Court considered in para 11 the desire of the plaintiff to join the defendants as representatives of the estate of the deceased. In para 15 of the order the Court considered that it would not be appropriate to appoint the plaintiff as personal representative of the estate of the deceased with the defendants against their will. However in para 15 of that order the Court considered it appropriate to make an order under CPR 19.8(1)(a) allowing the claim to proceed in the absence of a person representing the estate of the deceased so that the plaintiff could proceed to judgment and attempt to enforce the judgment in India. The Court recorded in para 15 of the judgment that the respondents therein (the defendants herein) did not oppose such an order being made. Hence the defendants, as the respondents therein, allowed the plaintiff to proceed against the estate of the deceased and attempt to enforce the judgment in India.
6. The Court considered the witness statements filed by the defendants to come to its conclusion which is reflected in para 17 of the judgment/order dated 2nd June, 2009. The defendants, therefore, did not challen
