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High Court Of Calcutta
PRABIR KUMAR MAJUMDAR
MIDDLE EAST BANK LTD. - Appellant
Versus
RAJENDRA SINGH SETHIA - Respondent
Execution Case 2 Of 1987
Decided On : 09/17/1990
FOREIGN JUDGEMENT - EXECUTION - SUMMARY PROCEDURE - MERITS OF THE CASE - CONCLUSIVE JUDGEMENT - CIVIL PROCEDURE CODE, 1908 - SECTION 13, 44A, ORDER 21 RULE 41 - RULES OF SUPREME COURT OF ENGLAND - ORDER 14, RULE 3 - BANKRUPTCY ACT, 1914 - SECTION 7, 9 - A foreign judgment passed under a summary procedure, where the court has no occasion to determine the truth or falsity of contentions raised or which may be raised and a judgment will be entered in favor of the plaintiff merely because the defendant failed to appear or to apply for leave to defend or if applied, the leave was refused is a decree or judgment which cannot be held to have been given on merits.
Fact of the Case:
The plaintiff, a foreign decree-holder, sought to execute a foreign decree passed by the High Court of Justice, Queens Bench Division of England, against the defendant, a judgment-debtor, in a proceeding under Order 21, Rule 41 of the Code of Civil Procedure, 1908. The defendant objected to the execution, contending that the foreign judgment was not conclusive as it was not given on merits and was obtained in the absence of the defendant.
Finding of the Court:
The court held that the foreign judgment was not conclusive as it was not given on merits. The court observed that the judgment was passed under Order 14, Rule 3 of the Rules of Supreme Court of England, which is a summary procedure where the court has no occasion to determine the truth or falsity of contentions raised or which may be raised and a judgment will be entered in favor of the plaintiff merely because the defendant failed to appear or to apply for leave to defend or if applied, the leave was refused. The court further held that the judgment was not executable as it fell within the exception under Section 13(b) of the Code of Civil Procedure, 1908, which provides that a foreign judgment shall not be conclusive if it was not given on the merits of the case.
Issues: 1. Whether the foreign judgment was conclusive as it was not given on merits? 2. Whether the foreign judgment was executable as it fell within the exception under Section 13(b) of the Code of Civil Procedure, 1908?
Ratio Decidendi: The court held that a foreign judgment passed under a summary procedure, where the court has no occasion to determine the truth or falsity of contentions raised or which may be raised and a judgment will be entered in favor of the plaintiff merely because the defendant failed to appear or to apply for leave to defend or if applied, the leave was refused is a decree or judgment which cannot be held to have been given on merits. The court further held that such a judgment is not conclusive within the meaning of Section 13 of the Code of Civil Procedure, 1908, and is not executable.
Final Decision: The court dismissed the plaintiff's application for execution of the foreign decree.
( 1 ) THIS is an application under Order 21, Rule 41 of the Code of Civil Procedure for examination of judgmentdebtor Rajendra Singh Sethia as to his property in a proceeding for execution of a foreign decree passed by the High Court of Justice, Queens Bench Division of England.
( 2 ) SOMETIME in January, 1984 the plaintiff-decree-holder, Middle East Bank Ltd. , filed a suit in the Queen's Bench Division in the High Court of Justice in London against amongst others the respondent/judgmentdebtor, Rajendra Singh Sethia. The suit was filed against the respondent/judgment-debtor along with four others. The writ of summons was served on the respondent/judgment-debtor and the other defendants in the suit. The said writ of summons was accepted by the Solicitors of the third defendant (the judgment-debtor by the name of Messrs. Iringhans ). A certificate of such service was issued by the Master of Queens Bench Division of the Supreme Court of England and Wales.
( 3 ) ON 8/02/1985 the plaintiff/decree-holder obtained a judgment against the five defendants including the respondent/judgment-debtor in the Commercial Court of Queen's Bench Division in the High Court of England for payment of a sum of Rs. US $23,547,972. 16c inclusive of interest until judgment together with the cost on a solicitor and own client basic. The said judgment and decree also allowed interest at the rate of 15% per annum on and from 16/04/1985.
( 4 ) ON the basis of the certified copy of the said decree filed in this Court along with other documents, the plaintiff-decree-holder in or about April, 1987 filed an execution application in this Court by making an application together with the tabular statement, and on the then known assets of the respondent/ judgment-debtor asked for appointment of Receiver as also sale of 456 Equity Shares standing in the name of the respondent/judgment-debtor in Shethia Properties Pvt. Ltd. , a company incorporated under the Companies Act, 1956 in West Bengal as also asking for necessary other orders for injunction against the respondent/judgment-debtor.
( 5 ) IT is stated by the plaintiff/decree-holder that on the said application this Court on 23/04/1987 passed an order of injunction against the respondent/judgment-debtor from disposing of any of the said shares. By a further order dated 18/06/1987 this Court was pleased to appoint a Receiver in respect of the said shares standing in the name of the respondent/judgment-debtor. The respondent/judgment-debtor was also directed to deliver the share scrips to the Receiver appointed therein.
( 6 ) IT is alleged by the plaintiff/decree-holder that pursuant to the said order, the Receiver held meetings and made attempts to make respondent/judgment-debtor deliver the said shares but the Receiver failed to get delivery of the same or to comply with the order. According to the plaintiff/decree-holder, the face value of the said share was Rs. 100. 00 each and for 456 shares hardly a paltry sum of Rs. 45,600/- could be realised. It is further stated by the plaintiff/decree-holder that the same could not be taken as even partial satisfaction of the decree passed against the respondent/judgment-debtor. The plaintiff/decree-holder also states that it is not aware of any other assets of properties owned or held by the respondent /judgment-debtor.
( 7 ) THE plaintiff/decree-holder, therefore, claims that the respondent /judgment-debtor be directed to appear before this Court for being examined as to his assets and properties out of which the decree can be satisfied and for such purpose a date be fixed by this Court and a notice be served upon the respondent/ judgment-debtor for such purpose.
( 8 ) THE plaintiff/decree-holder also claims that for non-compliance with any such order which may be passed herein this Court may direct the Sheriff by issuing a warrant of arrest to produce judgment-debtor this Court so that he may be examined in Court or, if necessary, be c
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