Point of Law : There is no reason where Indian courts should grant them protection; there should not be any discrimination between foreign creditors and domestic creditors in cross border insolvency proceedings - Court below rightly passed preliminary decree in favour of the plaintiffs

JUDGMENT :

J. SREENIVAS RAO, J.

Defendant No.4 in O.S. No.64 of 2009 filed CCCA No.47 of 2021 questioning the common judgment and decree dated 10.03.2021 passed in O.S.No.164 of 2005 & O.S. No.64 of 2009 on the file of II Addl. Chief Judge, City Civil Court, Hyderabad.

2. For the sake of convenience, hereinafter the parties are referred to as they were arrayed in O.S. No.64 of 2009 and O.S. No.164 of 2005.

CCCA No.47 of 2021 :

3. Respondent Nos.1 and 2 who are the plaintiffs filed suit O.S.No.64 of 2009 against the appellant/defendant No.4, respondents 3 to 8/defendants 1 to 3 and 5 to 7

(a) for seeking partition of the suit schedule property i.e. House bearing Municipal No.3-6-19, admeasuring 3000 square yards, situated at Himyatnagar, Hyderabad into five shares and allot one such share of the same to the plaintiffs and also future mesne profits.

(b) to pass Final Decree in accordance with the preliminary decree by appointing an Advocate Commissioner for division of plaint schedule properties and allot 1/5th share and allotment of respective shares and possession, be delivered to the plaintiff No.2 in respect of the plaint schedule property.

(c) To direct the defendants 1 to 7 to deposit the arrears of rents and interest to a tune of lrs approximately Rs.2,74,17,600/- i.e. 1/5th share of the plaintiff from the year 1994 till realisation of rents.

4. Brief averments of the plaint in O.S. No.64 of 2009 as follows:

4.1. Plaintiff No.1, a Swiss National domiciled in Austria, has obtained an order in default in payment on 17.06.1997 which has been further added to on 04.08.1997 against Mr.Altaf Hussain Khan/defendant No.5. When there was default in payment on the part of defendant No.5 an order of attachment dated 05.11.1997 was passed by the office of the legal proceedings of Morges, Switzerland.

4.2. The defendant No.5 has contested the legality of the attachment and confirmation on 04.12.1997 in respect of two buildings-House bearing No.5-9-186, Chapel Road, and 3-6-19 at Himayathnagar, Hyderabad. On 16.12.1997 the defendants 1 to 3 and 5 have filed an appeal before the Court of District Morges, Switzerland. On 08.01.1998 the defendant No.4 viz., Mahmood Hussain Khan has filed a separate appeal contesting rights of all his brothers. On 25.11.1998 the Court of District, Morges, Switzerland has rejected the defendant No.4 appeal. Similarly, on the same date, the appeal filed by defendant Nos. 1 to 3 and defendant No.5 was also rejected.

4.3. The defendant No.4 as well as defendant Nos.1, 2 and 5 have not chosen to file an appeal against the said order dated 28.01.1998. Defendant No.3 only chose to file an appeal against the above said order and the same was rejected by the Court of Bankruptcy of Legal Proceedings on 19.05.1999. Thus, the plaintiff was granted a decree on 19.05.1999 and it has become final, because there was no appeal to the Supreme Court of Switzerland.

4.4. In execution of the said decree, the defendants 1 to 5 have raised many pleas and all the pleas have been rejected by the Court in Switzerland. Ultimately, the Supreme Court (Tribunal Federal) Switzerland on 28.01.2000 has finally upheld the rights of the plaintiff. On 07.09.2000 the office of the proceedings of Bankruptcy of District, Morges has sent a letter to all the defendants inviting them for conciliation, which was to take place on 18.10.2000. Ultimately, the sale notice was issued stating that the 1/5th share of defendant No.5 would be sold on 10.09.2004. The sale was conducted and the plaintiff became highest bidder for 10,000 Swiss Franks. Since the sale was not questioned by the debtor or any of the defendants within 10 days, the sale was confirmed. Since the plaintiff purchased only 1/5th share, the suit is for partition and separate possession of the suit schedule property viz., House bearing No. 3-6-19 at Himayathnagar, Hyderabad. It is further submitted that the Bankruptcy of defendant No.5 has not so far been annulled.

4.5. Plaintiff No.1 assigned her int