Kolmar Group AG vs Traxpo Enterprises Pvt. Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Bom) 518

High Court of Judicature at Bombay
ROSHAN DALVI, J.
Kolmar Group AG – Appellant
Versus
Traxpo Enterprises Pvt. Ltd. – Respondent
Chamber Summons No. 864 of 2014 alongwith Notice of Motion No. 253 of 2015 in Execution Application No. 910 of 2014 in Suit Case No. 2007 Folio 1642 of the Royal Courts of Justice Strand, London, WC2A 2LL 1st February, 2010
Decided On : 09-04-2015

Advocate Appeared:
For the Applicant:Karl Tamboly, Counsel a/w. Rakesh Mandavkar, a/w. Akshita Buch, Adv. i/b. M/s. Mulla & Mulla & CB & C, Advocates.
For the Respondent:Mathews Nedumpara, Advocate.

Headnote:Civil Procedure Code, 1908 - Section 13 Judgment of Foreign Court Validity of. - The judgment of Foreign Court would be regarded as conclusive under Section 13 of the CPC in respect of all matters which are directly adjudicated between the parties except it falls within the 6 exceptions mentioned therein. It is easy to see that these contentions do not deserve further consideration. The judgment of the foreign Court is conclusive under Section 13 of the CPC with regard to all matters directly adjudicated between the parties except if it falls within the 6 exceptions set down therein.
       Civil Procedure Code, 1908 - Section 13(b) Foreign judgment Validity of. - Since judgment was pronounced after mentioning chronology of events, details of transaction, legal issues and entitlement of plaintiff, said judgment would be regarded as conclusive and executable due to being made on merits. In this case judgment considers and sets out the contract between the parties dated 27th and 28th August, 2007 the clauses thereof. It also considers the chronology of events of what transpired from 29th August, 2007 onwards. It considers the letter of credit setting out the articles thereunder and the chronology of what happened thereupon. It also considers amendments to the letter of credit. Thereafter it considers various legal questions including economic duress, provisions for letter of credit and amendments thereto. Further it considers the plaintiff’s claim for restitution and want of consideration, intimidation, short delivery, the contract and market price and the difference thereunder for considering the damages, the demurrage and the shifting charges.
       Upon concluding the entitlement of the plaintiff under the four separate heads for which it grants specific amounts or recovery, it considers the question of interest and costs separately and accordingly a final judgment (operative part) has been passed on 1st February, 2010 for the trial which commenced on 17th December, 2009. The judgment is, therefore, by no means not on merits. Hence the judgment sought to be enforced is not a judgment which can be reopened. This Court as the executing Court cannot go behind the judgment. Such a judgment is entitled to execution. It is not merely prima facie evidence. It is conclusive as to matters adjudicated between the parties. It falls within the parameters of conclusivity under Section 13 of the CPC.
       Civil Procedure Code, 1908 - Section 14 Presumption as to foreign judgment Competency of the Court. - Where plaintiff filed certified copy of the judgment, under Section 14 of the CPC it could be presumed that it was pronounced by the competent Court having jurisdiction though such presumption could be rebutted by proving lack of jurisdiction. The plaintiff has produced a certified copy of the said judgment. Under Section 14 of the CPC there is a presumption that it was pronounced by Court of competent jurisdiction. The presumption can be rebutted by proving want of jurisdiction.
       The dispute with regard to the jurisdiction would have to be raised at the first instance. It was not raised. The defence was taken on merits. It cannot be raised thereafter.

Judgment :-

1. The applicant / decree holder / judgment creditor (plaintiff) has obtained a judgment in the above suit from the Royal Courts of Justice, London, UK against the respondent / judgment debtor (defendant) herein on 1st February, 2010, which the plaintiff desires to execute. Consequently the above execution application is filed for execution of the above judgment. In the above execution the plaintiff has taken out the above Chamber Summons for depositing of decretal amount and failing which for disclosing the particulars of the assets and properties of the defendant, for issue of notices, precepts and warrant as may be required under Order 21 of the CPC, for an injunction against defendant from transferring, alienating and creating any third party rights of any of its properties, appointment of receiver, for detaining the defendant in civil prison upon non compliance of order of disclosure and other incidental reliefs and costs of the application.

2. The certified copy of the above judgment is filed. The plaintiff would contend that the foreign judgment is conclusive between the parties and can be executed by this Court. The Chamber Summons came to be served upon the defendant by post on 12th September, 2014 and by hand delivery of 9th September, 2014. The notice taken out in the above application also came to be served through personal service by bailiff of this Court upon the defendant on 23rd October, 2014. The defendant failed to file any reply. An ad-interim injunction came to be granted on 3rd November, 2014. The respondent was represented and applied for time which was granted making the Chamber Summons returnable on 19th November, 2014.

3. On 19th November, 2014 the defendant absented itself. No affidavit in reply was filed. The Chamber Summons was granted in terms of prayer 'a' directing defendant to deposit the decretal amount of Rs.11.31 crores with interest as claimed in prayer 'a' of the Chamber Summons within four weeks from that day. If the defendant did not deposit the amount the defendant was directed to disclose its assets, means and properties within 8 weeks from that day. It was directed that if it was not disclosed further orders under Order 21 Rule 41 would have to be passed. The Chamber Summons came to be adjourned to 21st January, 2015.

4. On 21st January, 2015 the defendant was again represented. No affidavit in reply was filed. The decretal amount was not deposited. No disclosure was made. Order under Order 21 Rule 41(3) came to be passed. A precept came to be issued for the properties of the defendant which was not within the territorial jurisdiction of this Court. A bailable warrant came to be issued for sum of Rs.50,000/- by way of cash bail against director of the defendant. It was made returnable on 25th February, 2015.

5. On 25th February, 2015 the defendant was represented by the present advocate. The directions passed on 19th November, 2014 were yet not complied. A director of the defendant was arrested under the bailable warrant issued and appeared before the Court. The cash bail of Rs.50,000/- was deposited in this Court. The decretal amount was not deposited and the affidavit of disclosure was not filed. The defendant applied for time to file the affidavit in reply. The bailable warrant came to be cancelled. The defendant was given time to file reply to the plaintiff's Chamber Summons with a direction that if the defendant failed, further Order 21 Rule 41(3) would be passed. The order of injunction against alienation and encumbrance of the properties of defendant or creating any third party rights thereunder also came to be passed. The director was directed to remain present on the forthcoming dates of hearing.

6. On 11th March, 2015 when the Chamber Summons again appeared on board, the affidavit of disclosure was not filed. The time was requested as the father of the advocate had expired. The Chamber Summons came to be adjourned to today.

7. In the mean time, instead of filing any aff

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2015 Supreme(Bom) 518

Cases Referred (1)