Point of Law: Decree Holder has sought for issuance of show cause notice under Order XXI Rule 37 to Judgment Debtor calling upon him to appear before the court and show cause why he should not be committed to the civil prison as envisaged under S.55 of the Code of Civil Procedure.

JUDGMENT :

N.V.ANJARIA, J.

The petitioner-judgment debtor has filed the present petition to seek the following prayers.

(i) to set aside order dated 07th January, 2011 passed below application Exh.54 by court of learned Principal Senior Civil Judge, Jamnagar, in Commercial Execution Petition No.161 of 2019;

(ii) to direct the court below to decide petitioner's application Exh.65 dated 12th October, 2020 challenging the jurisdiction of the court before proceeding further;

(iii) in the alternative, it is prayed to direct petitioner's application Exh.65 along with the pending applications.

2. The grievance of the petitioner-judgment debtor is in respect of the order passed by the executing court under Order XXI, Rule 37 of the Code of Civil Procedure, 1908, whereby the petitioner is required to show cause as to why petitioner should not be committed to civil prison.

3. The respondent-Ultrabulk A/S, a company incorporated under the laws of Denmark, happens to be the decree holder, in whose favour stands judgment and decree dated 09th November, 2017 passed by the High Court of Justice, Queens Bench Division, Commercial Court of England & Wales, U.K. in the matter of Ultrabulk A/S v. Arun Kumar Jagatramka, for a sum of USD 5,062,462 equivalent to more than Rs.32.00 crores, in addition to the interest.

3.1 It was to execute the said foreign decree that the execution proceedings and application Exh.54 therein was filed under Order XXI Rule 37, CPC. The Ministry of Law, Government of India, by issuing Notification dated 01st March, 1953 designated the United Kingdom, it was stated, to be the reciprocating territory under Section 44A of CPC, whereas High Court in England to be the superior court of that territory. Issuance of notice pursuant to application Exh.54 motivated the petitioner to approach this Court by way of the present petition.

3.2 The case of the respondent-decree holder in its application Exh.54 was inter alia that the petitioner, rated as one of the richest individuals in India, had given a personal guarantee-cum-on demand bond on 02nd July, 2013 on behalf of Gujarat NRE Coke Limited in favour of the respondent. Thereby it was committed by the petitioner that his liability to make payment to the respondent herein of USD 4,259,395 would arise upon failure of the said NRE Coke Limited to make payment of the said amount on or before 31st December, 2013. The said company remitted only USD 2.3 million out of the total. Thereupon in view of the personal guarantee as above, the liability of the petitioner to make payment of USD 4.25 million was crystalised. It was further mentioned that around 01st January, 2014, the petitioner acted with dishonest intention to avoid the liability of payment and sold off the assets in favour of the third parties.

3.3 The respondent therefore instituted the suit before the English High Court on 22nd June, 2015 against the petitioner to recover the amount on the basis of said personal guarantee-cum-on demand bond. It was stated that at no point of time the petitioner herein raised any objection as to the jurisdiction before the English High Court. The petitioner also instituted Civil Suit No.77 of 2017 on 07th March, 2017 before the Kolkata High Court seeking permanent injunction against the respondent from prosecuting his case before the English Court. This suit was withdrawn as the English High Court passed the decree rendering the petitioner indebted to the respondent company.

3.4 The execution petition which was under Section 44A, CPC was initially filed on 28th April, 2018 before the Commercial Court at Rajkot, before which court the petitioner filed an application objecting to the jurisdiction on the ground that the dispute was not a commercial dispute. Thereafter the execution petition came to be transferred to Commercial Court at Jamnagar. The application of the petitioner questioning the jurisdiction was rejected by order dated 10th April, 2019.

3.5 The aforesaid order dated 10th April, 2019 was s