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2000(5) Supreme 688
Supreme Court of India
(From Andhra Pradesh High Court)
S.B. Majumdar & Umesh C. Banerjee, JJ.
M.V. Al Quamar —Appellant
versus
Tsavliris Salvage (International) Ltd. & Ors. —Respondents
Civil Appeal No. 4578 of 2000
(@ SLP (C) No. 18616 of 1999)
With
Civil Appeal No. 4579 of 2000
(@ SLP (C) No. 4410 of 2000)
Decided on 17-8-2000
Counsel for the Parties :
For the Appearing Parties : P. Chidambaram, Ashok H. Desai, V. Kotwal, Sr. Advocates, S. Dave, A. Sen, Ms. Bina Gupta, G.K. Banerjee, Venketesh Dhond, R.N. Karanjawala, Ms. Ruby Singh Ahuja, Mrs. Manik Karanjawala, R. Rahim and Kailash Vasdev, Advocates.
Per S.B. Majmudar, J.
Before Section 44A is invoked by any decree-holder, he must satisfy the following conditions.
1. A Decree-holder who seeks execution must be armed with a money decree passed by any of the superior Court of any reciprocating territory, being any foreign country or territory which the Central Government may, by notification in official gazette, has declared to be a reciprocating territory for the purpose of the Section.
2. Such an execution petition can be entertained by the executing Court in India being the District Court that will be clothed with the legal fiction as if the said foreign decree was passed by itself and whose aid and assistance are required for executing such a decree.
3. Such a decree can be put up for execution before a District Court in India being the principal Civil Court of original jurisdiction and which will include the local limits of the original civil jurisdiction of a High Court.
4. Once such execution petition is filed before the appropriate District Court the entire machinery of Section 47 for execution of Indian decrees would automatically get attracted.
5. In such execution proceedings, the judgment-debtor of a foreign Court decree will be entitled to satisfy the executing Court in India that the foreign decree cannot be executed against him as it is hit by any of the exceptions specified in Clauses (a) to (f) of Section 13 of the C.P.C. (Para 6)
Per Umesh C. Banerjee, J.
Section 44A thus indicates an independent right, conferred on to a foreign decree holder for enforcement of its decree in India. It is a fresh cause of action and has no co-relation with jurisdictional issues. The factum of the passing of the decree and the assumption of jurisdiction pertaining thereto, do not really obstruct the full play of the provisions of Section 44A. It gives a new cause of action irrespective of its original character and as such it cannot be termed to be emanating from the admiralty jurisdiction as such. The enforcement claimed is of an English decree and the question is whether it comes within the ambit of Section 44A or not. The decree itself need not and does not say that the same pertains to an admiralty matter neither it is required under Section 44A of the Code. Though however in the facts of the matter under consideration, the decree has been passed by the High Court of England (a Superior Court) in its Admiralty jurisdiction. Registration in this country, as a decree of a superior foreign Court having reciprocity with this country would by itself be sufficient to bring it within the ambit of Section 44A. The conferment of jurisdiction in terms of Section 44A, cannot be attributed to any specific jurisdiction but an independent and an enabling provision being made available to a foreigner in the matter of enforcement of a foreign decree. (Para 50)
(ii) Code of Civil Procedure, 1908 —Section 44A r/w Section 112(2)—Execution of foreign decree of admiralty Court—Section 44A not excluded by Section 112(2)—Section 44A can be invoked to execute admiralty decree of foreign Court.
If the provision of Section 112(2) is read in isolation it may project a situation wherein the entire Code may get excluded for governing any matter of criminal or admiralty or vice-admiralty jurisdiction. However, a closer look at the said provision exposes the hollowness of the aforesaid contention. We have to keep in view the fact that the C.P.C. is divided into various parts. Section 112 occurs in Part VII dealing with appeals. Sections 96-99A deal with one sub-topic - appeals from original decrees. There is a second sub-topic – appeals from appellate decrees. They are dealt with by Sections 110-103. The third sub-topic in the said Part VII deals with appeals from orders. They are dealt with by Sections 104-106. Then falls another sub-topic - general provisions relating to appeals. They are dealt with by Sections 107-108 and lastly falls the sub-topic - appeals to the Supreme Court. This sub-topic - appeals to the Supreme Court is dealt with by Sections 109-112. While sub-section (1) of Section 112 provides for excluding the entire Code in connection with the topics covered by sub-clauses (a) & (b) of sub-section (1) thereof pertaining to powers of the Supreme Court in appeals. Sub-section (2) of Section 112 conspicuously does not contain the same phraseology i.e. "nothing contained in this Code" instead it uses the phraseology "nothing herein contained", meaning thereby, nothing contained in the sub-topic "appeals to the Supreme Court" would apply to admiralty or vice-admiralty jurisdiction amongst others and nothing more. The said provision cannot get telescoped into any other part of the C.P.C. nor can it travel beyond the limited scope and periphery of its operation as indicated in the said provision. It has to be kept in view that Part VII deals with ‘appeals’, which is the genus of all the aforesaid sub-topics in Part VII, that dealt with the species i.e. different types of appeals before different Courts in the hierarchy of civil proceedings. It is in this connection that Section 112(2) has to be read. It must, therefore, be held that what is excluded by Section 112(2) by the phrase "nothing contained herein" is the sub-topic dealing with "appeals to the Supreme Court". It is not made applicable by sub-section (2) of Section 112 to admiralty or vice-admiralty jurisdiction, amongst others. In short, the bar of Section 112(2) operates within and is confined to the question of "appeals to the Supreme Court" neither can it go backward to any other Parts from I-VI nor can it go forward and touch upon any other subsequent provisions found in Parts VIII to XI of the C.P.C. It is to be noted that Section 47 dealing with execution proceedings is found in Part-II. It is miles away from Part-VII dealing with "appeals" wherein is found Section 112(2). This aspect can be further highlighted from having a look at Section 4 which is a general provision excluding the operation of the entire C.P.C. to special jurisdictions or situations as contemplated by sub-sections (1) and (2) thereof. We do not find any such general exception or exclusion of the entire body of Code to admiralty jurisdiction. We may also turn to Section 140 which is found in Part-XI dealing with "miscellaneous provision". This Section clearly indicates that it is not the legislative intent to exclude the applicability of the C.P.C. to admiralty jurisdiction whether original or appellate. Consequently the argument that invocation of Section 44-A of the C.P.C. by Respondent No. 1 decree-holder of a decree passed by the Admiralty Court is misconceived as the said provision gets excluded by Section 112(2) of the C.P.C. has to be rejected. (Paras 3 & 6)
(iii) Code of Civil Procedure, 1908—Section 44A r/w Order XXI, Rule 10—Admiralty Courts Act—Section 15—Foreign admiralty decree—Execution in India—Monetary decree against 2nd respondent (owner of Ship) by English Admiralty Court—Ship was not within jurisdiction of England at relevant time—Decree remained decree in personam—Ship found anchored in Visakhapatnam in A.P.—Execution petition invoking Section 44A, CPC before A.P. High Court—Resistance to petition contending Court not Competent Court since both decree-holder, judgment debtor and ship were foreigners and no cause of action arose in India—Plea that admiralty suit could not have been filed in A.P. High Court and hence execution of decree in A.P. High Court not competent—Untenable—Suit could have been validly filed in A.P. High Court s admiralty jurisdiction if vessel was in its territorial waters—Decree could have been passed in res against ship and in personam against owner if he wanted to bail out ship—Section 44A was rightly invoked—A.P. High Court competent to entertain execution petition.
Section 44A nowhere lays down that the District Court in which decree of any superior Court of a foreign territory is submitted for execution by a foreign decree-holder must be a Court which could have been competent to pass such a decree if in the first instance such a suit was filed by a foreign national against another foreign national in India. The second distinguishing feature is that Section 44-A permits the foreign judgment debtor to challenge the foreign decree even before the executing Court being the District Court in India on any of the grounds mentioned in Clauses (a) to (f) of Section 13. A transferee Court under Section 39 which is called upon to execute an Indian decree passed by a competent Indian Court against the judgment-debtor cannot permit the judgment-debtor to go beyond the decree sought to be executed by such transferee Court. But apart from these two distinguishing features and even proceeding on the lines as suggested by Mr. P. Chidambaram, learned senior counsel for the appellant, that in any case the District Court in India which is called upon to execute a foreign decree by treating it as if it was passed by itself should, in the first instance, be shown to be competent to pass such a decree, the result would be the same on the facts of the present case. (Para 8)
It is no doubt true that the foreign decree, which is sought to be executed, is a money decree passed by the English Admiralty Court in favour of Respondent No. 1 against Respondent No. 2. That decree is in personam for the simple reason that, at the time when the suit was filed in England, the res, namely, M.V. Al Tabish was not within the territorial waters of English Admiralty Court. Therefore, the plaintiff Respondent No. 1 had to sue only Respondent No. 2 in personam for recovering damages for breach of salvage contract entered into between them. The said decree has become final between the parties. It is also axiomatic that if the res, namely, the vessel M.V. Al Tabish was available within the territorial waters of English Admiralty Court it would have also become co-defendant along with its owner Respondent No. 2 and then the decree would have a decree in rem against the vessel but if Respondent No. 2 had submitted to the jurisdiction of English Admiralty Court, the proceeding would have been converted into proceedings in personam and then a decree would have been passed also in personam against Defendant No. 2 along with decree in rem against the vessel. If that had happened there would have been no difficulty for the English decree-holder in pursuing the vessel M.V. Al Tabish and to get his decree executed against the vessel wherever it went during the course of its voyage over the high seas and its ultimate anchorage in any port for the discharge or reloading of cargo in the course of maritime business. The contract of salvage of such vessel and any proceedings in connection with the execution of such contract or its breach raising claim for damages would remain in the realm of maritime claim legitimately within the jurisdiction of Admiralty Courts. In the absence of a decree in rem against the vessel whose salvage contract have given rise to the present maritime claim, the decree passed by competent Admiralty Court in England though remains a decree in personam could validly be executed by English Admiralty Court itself. (Para 9)
If the ship was found at the time, when the suit was filed in the English Court, in the territorial waters of A.P., then Respondent No. 1 (decree-holder) could have filed a suit in personam against Defendant No. 2 because, admittedly, it was alleged to have committed breach of salvage contract in connection with the sea-going vessel M.V. Al Tabish which is a res and which by chance was found within the territorial waters of the port of Visakhapatnam in 1994. Such a ‘res’ would have admittedly remained within the original admiralty jurisdiction of the Andhra Pradesh High Court. Respondent No. 1 thus could have validly filed a suit praying for decree in rem against the vessel M.V. Al Tabish making it as Defendant No. 1 along with its owner Defendant No. 2. What the English Court could do in connection with the suit validly filed on 11.10.1994 by Respondent No.1 against Respondent No. 2 would have been validly done by the Andhra Pradesh High Court if the vessel, Respondent No. 1 and Respondent No.2 were all within the territorial admiralty jurisdiction of the Andhra Pradesh High Court at that time. The Admiralty Court, being the Andhra Pradesh High Court, could have under these circumstances validly entertained the suit and would have been perfectly competent to pass a decree in rem against the ship as well as the decree in personam against its owner Defendant No. 2 if it had submitted to its jurisdiction for getting the ship bailed out. Such suit is perfectly maintainable in the Andhra Pradesh High Court in exercise of its admiralty jurisdiction. (Para 10)
Once the vessel - M.V. Al Tabish came within the territorial waters of the Andhra Pradesh, the Andhra Pradesh High Court, as Admiralty Court, had complete jurisdiction to even initially entertain the suit against not only the ship but against its owner, that is alleged to have committed breach of salvage contract qua that ship. If such a suit was maintainable in the inception before the Andhra Pradesh High Court in its admiralty jurisdiction, then at the executing stage when Section 44-A was invoked for executing a similar decree passed by competent superior Court in England in exercise of admiralty jurisdiction, such a decree could validly be executed by invoking the aid of corresponding Admiralty Court being the Andhra Pradesh High Court when the res was already within its jurisdiction. Consequently, even reading Section 39(3) with Section 44-A, there is no escape from the conclusion that the time when execution petition was moved before the Andhra Pradesh High Court by even treating it as a transferee Court it can be said to be perfectly competent to entertain such a suit even in its inception against the ship as well as its alleged owner and to resolve the dispute between Respondent No. 1 and Respondent No. 2. It has to be kept in view that if the ship in question which is arrested at Visakhapatnam had sailed out of the territorial waters of Andhra Pradesh then the Andhra Pradesh High Court would have lost its jurisdiction to entertain such a suit or the execution proceedings for executing the decree of foreign Court. But once it was within its territorial waters, the ship could have been validly subjected to such a suit not only against itself but against its owner. Whether the subsequent purchaser is a genuine purchaser of the ship and whether the sale transaction is hit by any other provision of law and whether the ship still remains the property of Respondent No. 2 could have been validly examined in such a suit if it was originally filed before the Andhra Pradesh High Court in its admiralty jurisdiction. Under these circumstances, it cannot be said in the background of this fact situation that the Andhra Pradesh High Court, in exercise of its admiralty jurisdiction, was not competent to even originally entertain such a suit in which a foreign Court had passed the decree which is sought to be executed before it. Both the English Admiralty Court, which is, admittedly a Court of competent jurisdiction, as well as the Andhra Pradesh High Court, being a corresponding Court of competent admiralty jurisdiction, could not only entertain such a suit in the first instance but could equally be competent to execute such a decree of Admiralty Court. (Para 10)
Certainly. Based on the provided legal document, here are the key points:
The document discusses the scope and applicability of Section 44A of the Civil Procedure Code (CPC) for the execution of foreign decrees, emphasizing that it grants an independent right to foreign decree holders to enforce their decrees in India. This provision creates a new cause of action separate from jurisdictional issues and does not depend on admiralty jurisdiction or the nature of the original decree (!) (!) .
It clarifies that Section 44A applies to foreign decrees of superior courts from reciprocating territories, and such decrees can be filed and executed in Indian courts as if they were Indian decrees, provided certain conditions are met, including the filing of a certified copy and a certificate of satisfaction or adjustment (!) (!) .
The document emphasizes that Section 44A is not a self-contained code and must be read in conjunction with general principles of execution law, including the provisions of the CPC, but it introduces a distinct scheme for enforcing foreign judgments, especially those relating to monetary claims (!) (!) .
It discusses the legislative intent behind Section 112 of the CPC, clarifying that its second sub-section does not exclude the applicability of the CPC to admiralty or vice-admiralty jurisdiction, nor does it prohibit the application of Section 44A. The section's language limits its exclusion to appeals from orders and decrees of Prize Courts, not to admiralty or maritime jurisdiction generally (!) (!) (!) .
The document explains that the jurisdiction of Indian courts, including the Andhra Pradesh High Court, to entertain admiralty and maritime claims, including the enforcement of foreign decrees, is preserved and not atrophied. The jurisdiction is based on the history and statutory provisions that recognize the High Court as a competent admiralty court within its territorial waters (!) (!) (!) (!) .
It highlights that the nature of the foreign decree—whether in personam or in rem—is significant but does not fundamentally alter the enforceability under Section 44A, provided the conditions for filing and execution are satisfied. The decree's character influences the method of execution but does not disqualify enforcement (!) (!) (!) .
The document stresses that the enforcement of foreign decrees in India under Section 44A is a process that involves procedural safeguards, including the right of judgment-debtors to challenge the decree on specified grounds before execution (!) (!) (!) .
It also discusses the procedural aspects of executing foreign decrees, including the necessity of filing a certified copy, the role of the court in assessing the validity, and the importance of the court's territorial jurisdiction at the time of filing and execution (!) (!) (!) .
The document concludes that the applicability of the CPC to admiralty jurisdiction has not been excluded by law, and the High Courts, including Andhra Pradesh, retain their original admiralty jurisdiction. The provisions of Section 44A are valid and applicable for enforcing foreign maritime decrees, and the courts' jurisdiction to entertain and execute such decrees is affirmed (!) (!) (!) (!) .
Lastly, the document indicates that the appeals are dismissed, but the courts may require the appellant to furnish a bank guarantee for the release of attached ships during the proceedings, ensuring that enforcement actions are secured (!) .
Please let me know if you need a more detailed analysis or specific legal advice based on these points.
JUDGMENT
S.B. Majmudar, J.—I have gone through the erudite and exhaustive judgment prepared by learned Brother, U.C. Banerjee, J., in these appeals. I respectfully agree with the conclusion reached by him. However, as the matter at issue has wide repercussions regarding the scope and ambit of admiralty jurisdiction vested in the Chartered High Courts or their successor High Courts, like the High Court of Andhra Pradesh, I deem it fit to record my reasons for concurring with the decision arrived at by learned brother.
2. At the outset, admitted and well-established facts deserve to be noted in order to appreciate the contours of controversy posed for our consideration. They can be enumerated as under :
1. Respondent No. 2 before this Court has suffered a foreign decree passed by the High Court of Justice, Queen’s Bench Division, Admiralty Court, England in monetary terms by way of damages for breach of contract for salvaging and towing the vessel "M.V Al Tabish" alleged to be renamed as "M.V. Al Quamar". Respondent No.1-company before us is the decree-holder. It had filed the suit in the Admiralty Court in England alleging that pursuant to a contract of salvage entered into by Respondent No. 1 with Respondent No. 2, it had mobilized its tug for salvaging and towing the aforesaid vessel which had met rough weather in the high seas. Its further case against Respondent No. 2 is that though the plaintiff was prepared to render services as per the contract it was prevented from rendering the same by Respondent No. 2 which committed breach of contract and hence this suit in the Admiralty Court for damages for breach of contract pertaining to salvaging the said ship. As the alleged breach of contract for salvage had admittedly taken place in London, the suit was filed in the Admiralty Court, England.
2. After getting notice of the filing of the suit, Respondent No. 2 subsequently remained ex-parte and a decree for damages for breach of salvage contract was passed by the English Court on 2.11.l998. It was held by that Court that Respondent No. 2 was liable in the sum of US $ 265,000 together with interest @ 9.51 p.a. from 1.6.1994. It was also ordered that copies of the order and judgment were to be served on Respondent No. 2 at their address in Cyprus and the order was to become final and binding after seven days of service.
3. Admittedly the vessel in question for salvaging the same, the contract was entered into by Respondent No. 1 with Respondent No. 2, was not available for being proceeded against in the English Court and only Respondent No.2 was joined as a party to the litigation. Consequently, the aforesaid money decree passed by the English Admiralty Court remained a decree in personam against Respondent No. 2.
4. The vessel in question having crossed the high seas for discharging the cargo carried by it ultimately was found to have anchored in Visakhapatnam Port in Andhra Pradesh. Thus, admittedly, the res in question was found located in the territorial waters of Andhra Pradesh within the territorial jurisdiction of Admiralty Court of Andhra Pradesh, being the High Court of Andhra Pradesh, as a successor to the Chartered High Court of Madras.
5. Respondent No. 1 decree-holder having come to know about the anchoring of the said ship at Visakhapatnam filed an execution petition invoking Section 44-A of the Civil Procedure Code (for short "C.P.C.") for arrest and detention of the ship and for recovering the decretal amount from Respondent No.2 judgment-debtor on the ground that it had obtained a foreign money decree from competent Admiralty Court against Respondent No. 2, who was the owner of the said res H.V. Al Tabish.
6. In the said execution petition the res in question, namely, M.V. Al Tabish was joined as a party opponent as it was required by the decree-holder to be attached and sold in execution of its decree against Respondent No. 2.
7. The master of the ship M.V Al Quamar contested the execution proceedings and raised a preli
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