2012(5) ALL MR 164
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, J.
Vitol S.A. Vs. Deepak Fertilizers & Petrochemicals Corporation Ltd.
Notice No.1267 of 2009,Execution Application No.294 of 2009
11th January, 2012
Petitioner Counsel: Mr. ZAL ANDHYARUJINA, JAVED GAYA
Respondent Counsel: Mr. N.H.SEERVAI, Mr. PARAG KABADI, DOIJODE ASSOCIATES
(A) Civil P.C. (1908), S.44A - Execution of decree passed in reciprocating territory - Suit for damages on account of breach of contract - Decree passed in Royal Courts of Justice, U.K. - Certified copy of decree from superior Court required to be filed for purpose of execution but said requirement is procedural one - Mere non filling of certified copy of decree of English Court would not bar maintainability of execution application - Held decree holder having agreed to file such certificate within stipulated time would fulfill procedural requirement of S.44A(2). (Paras 22, 24, 25)
(B) Civil P.C. (1908), S.33 - Summary judgment - Exparte decree - Burden of proving that exparte decree was not on merits would be on party alleging it - Judgment debtor failed to produce any material showing that exparte decree was not on merits - Moreso, decree has been passed after considering statement of witnesses of both parties - Also there was detailed reference to correspondences between parties - Exparte decree cannot be said to be not on merits - Cannot be interfered with. (Paras 28, 29)
Sheik Ali Vs. Sheik Mohamed, AIR 1967 Madras 45 [Para 15]
M/s. International Woolen Mills Vs. M/s. Standard Wool (U.K.) Ltd., AIR 2001 SC 2134 [Para 17,19,26]
China Shipping Development Co.Ltd. Vs. Lanyard Foods Ltd., (2008) 142 Company Cases 647 (Bom) [Para 17]
M.V. AL. Quamar Vs. Tsavliris Salvage (International) Ltd. and others, AIR 2000 SC 2826 [Para 23]
JUDGMENT :- This is a Notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908 (for short "CPC") calling upon the Respondent/Judgment Debtor to show cause as to why the Decree passed by the Queen's Bench Division, Commercial Court, Royal Courts of Justice, United Kingdom on 21.05.2008 should not be executed against it. This Notice dated 06.08.2009 has been duly served on the Respondent/ Judgment Debtor.
(a) damages plus interest accrued thereon until the judgment date in the sum of US$ 451,289.06; and
(b) the Decree Holder's costs incurred in the English Court proceedings in the sum of Sterling Pound 85,000.
Under the Judgments Act 1838 (English statute) the Decree Holder is also entitled to interest at 8% on both these sums, from the Judgment Debtor, till the date of payment and/or realization. The interest is therefore accruing on US$ 451,289.06 at a daily rate of US$ 98.91 and on Sterling Pound 85,000 at a daily rate of Sterling Pound 18.63.
3. It is the case of the Claimants/Decree Holders that they claimed damages from the Respondent/ Judgment Debtor for breach of a contract for supply of Methanol. This contract was concluded between the parties in February, 2007. The contract contained an express provision that it was governed by English Law and conferred exclusive jurisdiction on the London High Court. The Respondent/ Judgment Debtor unsuccessfully attempted to contest the proceedings by raising the ground of jurisdiction. This ground was nothing but an attempt to defeat the claim of the Claimant/Decree Holder on merits. It was alleged by the Respondent that no contract was concluded between itself and the Claimant/Decree Holder and in any event if such a contract was concluded, it did not contain English Law and jurisdiction clause. In such circumstances the High Court had no jurisdiction to entertain, hear and try the claim. The Respondent/ Judgment Debtor filed two witness statements, each with exhibits, in support of its application to contest the jurisdiction of the English Court and was represented by a Barrister, who was instructed by English Solicitors at one day hearing of the application. The High Court rejected the arguments of the Respondent/ Judgment Debtor and ruled on 20.12.2007 that it had jurisdiction to entertain and try the matter. That was on the basis that the Claimant/Decree Holder had fulfilled the relevant test of being able to show that it had a good arguable case on both counts. Thereafter, the claim was decreed.
4. The Respondent/ Judgment Debtor did not prefer any Appeal against the Order passed by the High Court of Justice, Queen's Bench Division and therefore, this order is final. It is in furtherance of the order on jurisdiction that the Claimant/ Decree Holder obtained the Decree in the form of a summary judgment on 21.05.2008. The High Court ruled that there was a concluded contract and that the Respondent/ Judgment Debtor committed breach thereof by failing to take delivery of Methanol. The Court, therefore, ordered the Respondent to pay damages and costs to the Claimant/ Decree Holder.
5. It is stated by the Claimant that despite being served with a summary judgment application and supporting evidence filed by the Claimant/ Decree Holder and receiving the notice of the hearing date, the Respondent/ Judgment Debtor did not respond to the application for summary judgment and did not appear and was not represented at the hearing on 21.05.2008. However, the witness evidence and exhibits filed by the Respondent/ Judgment Debtor in the context of the jurisdiction dispute were before the High Court for the purpose of summary judgment application and the Judge's attention was drawn to the arguments of the Respondent as to why the contract between the parties was not concluded. These arguments have been specifically rejected. It is stated that a summary judgment of the English High Court is an expedited form of decision on merits. The Court in England will award a summary judgment, in this case, upon the application filed by the Claimant/ Decree Holder and upon examination of the evidence filed by both parties in support of or in defence of the application, if it concludes that the Defendant has no real prospect of successfully defending the claim and there is no other reason why the case should proceed to a full trial. A summary judgment can be granted before the witness statements are filed in the main proceedings and the documents are exchanged. It may be that the Judge is not provided with such evidence as would be available at full trial, nevertheless the test for granting a summary judgment is stringent because it would not be granted if the Defendant could show that it had a more than fanciful or arguable chance of successfully defending the case.
6. It is in these circumstances that it is contended that this judgment of the English High Court of Justice is on merits of the case and it being rendered by a superior court of reciprocating territory, a Decree in furtherance thereof can be executed in India as if it has been passed by the District Court in India. It is argued that the ingredients of section 44-A of the CPC are, thus, satisfied. A copy of the Decree has been duly served on the Respondent/ Judgment Debtor on 01.07.2008. The Decree has not been satisfied and the Respondent/ Judgment Debtor has failed and neglected to pay the decreetal amount of US $ 451,289.06 and Sterling Pound 85,000 plus interest on both these amounts. It is stated that a certified copy of the Decree of the Queen's Bench Division which is annexed as Exhibit-C to the affidavit in support of the Execution Application contains a statement that the said Decree and Judgment has not been satisfied by the Respondent/ Judgment Debtor. For all these reasons, it is submitted that the Notice be made absolute.
7. The Notice is contested by the Respondent/ Judgment Debtor. In the first affidavit filed in reply and affirmed on 07.10.2009, the Respondent contends that this Court has no jurisdiction to entertain and try the Execution Application inasmuch as it has filed a Special Civil Suit No.312/2008 on 08.02.2008 in the Court of the 5th Joint Civil Judge, Senior Division, Pune against the Claimant/ Decree Holder inter-alia for a declaration that the alleged contract forming the basis of the judgment of the Commercial Court, Queen's Bench Division, London (English Court) was not valid and that the Claimant/ Decree Holder was not entitled to recover the alleged damages from the Respondent/ Judgment Debtor and for an injunction restraining the Claimant/ Decree Holder from enforcing or giving effect to the terms of the alleged contract and claiming damages thereunder. An application for interim relief was made in the said suit. The Trial Court directed the parties to maintain statusquo. Subsequently, the suit was dismissed by the Court at Pune for want of jurisdiction by the Judgment and Order dated 01.07.2008. The Respondent/ Judgment Debtor filed an Appeal from Order No.71/2009 on the Appellate Side of this Court on 08.08.2008. It may be that this Appeal from Order is dismissed and even the Special Leave Petition, against the order dismissing the appeal, passed by this Court, is also dismissed, but the order of status-quo passed by the Trial Court had not been vacated, at the request of the Claimant/ Decree Holder earlier. The Claimant/ Decree Holder did not apply for variation or modification thereof. Once the order of status-quo was passed by the Trial Court, the Claimant/ Decree Holder could not have proceeded with the matter before the English Court. It is pertinent to note that the order of status-quo is dated 02.05.2008. That order was in force when the Decree of the English Court came to be pronounced on 21.05.2008. Thus, the Claimant/ Decree Holder having been prevented by the order of statusquo from proceeding with the matter before the English Court, the Judgment and Decree obtained by it violates the status-quo order and is in utter contempt thereof. Therefore, that Judgment and Order of the English Court is unenforceable and not executable in law. Once it cannot be executed and enforced, then, this Court has no jurisdiction to entertain any Execution Application, so also, the instant Notice.
8. In the second affidavit that is filed on 24.02.2011, what has been contended by the Respondent/ Judgment Debtor is that this Court has no jurisdiction to entertain and try the Execution Application because the Claimant/ Decree Holder was required to file together with a certified copy of the Decree, a certificate from the superior court of reciprocating territory whose decree is sought to be enforced and executed stating therein that the Decree has not been satisfied or adjusted. Such a certificate has not been filed by the Claimant/ Decree Holder. Therefore, there is non compliance with the requirements of section 44-A(2) of the CPC. Therefore, the Execution Application is not maintainable and the Notice is liable to be discharged.
9. Without prejudice to the above contentions, it has been alleged that the Respondent/ Judgment Debtor contested the proceedings before the English Court only on the issue of jurisdiction. The Respondent/ Judgment Debtor had no opportunity to contest the alleged claim of the Claimant/ Decree Holder that it suffered damages because of breach of the Contract. Further, the English Court rejected the objection of the Respondent/ Judgment Debtor regarding the jurisdiction, by its order dated 20.12.2007. This order did not finally decide that there was a contract between the Claimant/ Decree Holder and the Respondent/ Judgment Debtor. The merits of the claim were not within the scope of the hearing on the preliminary application and therefore, were not considered. Thus, it is contended that the Judgment and Order of the English Court cannot be said to be rendered and delivered on merits of the claim. Once it is not the judgment on merits, but on the basis that the Respondent/ Judgment Debtor had no real prospect of defending the claim of the Claimant/ Decree Holder, then, such judgment cannot be enforced and executed by this Court. Reliance is placed on section 13(b) of the CPC in this behalf. It is submitted that the Foreign Judgment is not conclusive. Once it is not conclusive, then, it cannot be enforced or executed under section 44-A of the CPC. For these reasons, this Notice may be discharged.
10. The Claimant/ Decree Holder has filed an affidavit on 08.03.2011 dealing with each of these objections and has pointed out that there is compliance with section 44-A of the CPC and particularly sub-section (2) thereof. At Exhibit-C to the affidavit of Mr.Anil Bhor dated 17.02.2009 filed in support of the Execution Application, there is a certificate issued under section 10 of the Foreign Judgment (Reciprocal Judgment Act) certifying that the English Judgment is enforceable as of 27.08.2008. This certificate is deemed to be conclusive regarding the adjustment/satisfaction of the Judgment and Decree of the English Court. Therefore, the first objection must fail.
11. As far as the second objection is concerned, it is submitted that the Respondent/ Judgment Debtor filed a Contempt Petition in this Court alleging contempt by the Claimant/ Decree Holder of the order of status quo dated 02.05.2008 passed by the Court at Pune. That Contempt Petition bearing No.17/2010 was heard by a learned Single Judge of this Court and by his order dated 09.12.2011, he has dismissed it. Once the Contempt Petition has been dismissed, then, the very same ground of breach of the order of statusquo cannot be raised by the Respondent/ Judgment Debtor. The English Court was not prevented from proceeding with the matter and rendering its Judgment and Decree. Equally, the Claimant/ Decree Holder did not commit any violation or breach of the order of status-quo passed by the Court at Pune as has been held by the learned Single Judge while dismissing the Contempt Petition No.17/2010. Therefore, the Execution Application can be entertained by this Court. The Judgment and Decree of the English Court is enforceable and executable.
12. As far as the objection that the Judgment and Decree of the English Court is not on merits, is concerned, what has been pointed out by the Claimant/ Decree Holder is that a perusal of the said judgment would demonstrate that the English Court has considered in the introductory paragraphs, the case of the Claimant/ Decree Holder and the objections of the Respondent/ Judgment Debtor. Thereafter, it gave a complete background. Then it dealt with the aspect of making of the contract and in that context, referred to the witness statements of the Respondent/ Judgment Debtor's witness Kaashif Basit on 18.09.2007 and 30.11.2007. Reliance is placed upon paragraphs 26 to 29 of the Judgment and Order of the English Court dated 21.05.2008. It is stated that on perusal of the same, it will be clear that the Judgment of the English Court is on merits of the case. It is urged that a judgment can be on merits of the case even if the same is rendered ex-parte. It is, therefore, clear that this is a judgment and order though ex-parte, but on merits.
13. It is on the above material that I have heard the submissions of Mr.Andhyarujina, learned counsel appearing for the Claimant/ Decree Holder and Mr.Seervai, learned Senior Counsel appearing on behalf of the Respondent/ Judgment Debtor.
14. M r.Andhyarujina submitted that the Notice be made absolute as there is no cause shown to it. The purported cause shown by filing an affidavit is baseless. The Judgment and Decree of the English Court is that of a superior court in reciprocating territory. Further that Judgment and Decree has not been satisfied or adjusted in any manner. Once the Judgment and Decree grants the claim of the Claimant/ Decree Holder and it is conclusive as far as the parties are concerned, then, this Court should proceed to execute and enforce it in accordance with law. All that is required is to have a notice to show cause being taken out and such notice being made absolute, then, the Decree can be enforced and executed.
15. Mr.Andhyarujina submits that the first objection is that incomplete copy of the Execution Application has been provided to the Respondent/ Judgment Debtor. The Respondent/ Judgment Debtor could have taken inspection of the original records. That apart, now complete copy of the Execution Application is provided to the Respondent/ Judgment Debtor. The Claimant/ Decree Holder has sought assistance of this Court to execute and enforce the Decree for payment of money by attachment and sale of the movable and immovable properties more particularly described in the column in that behalf in the Execution Application. That this Court is a competent court and can execute and enforce the Decree is apparent from the fact that the Respondent/ Judgment Debtor has its movable and immovable properties at Mumbai. Therefore, this Court is the Executing Court and a District Court as contemplated by section 44-A(1) of the CPC. Mr.Andhyarujina then submits that there is no substance in the objection that the Claimant/ Decree Holder was required to file together with a certified copy of the Decree, a certificate from the superior court of reciprocating territory and such certificate has not been filed by the Claimant/ Decree Holder. Placing reliance upon Full Bench decision of the Madras High Court in the case of Sheik Ali v/s Sheik Mohamed reported in AIR 1967 Madras 45, Mr.Andhyarujina submits that the law does not require the Decree Holder to file any such certificate as a condition for executing the Decree. That is a procedural requirement. There is no question of the Judgment and Decree, therefore, of not capable of being enforced by this Court. In any event and without prejudice, this Court can record his statement that necessary certificate would be obtained and filed in this Court by the Claimant/ Decree Holder within such time as is stipulated by this Court.
16. Thirdly, it is contended by Mr.Andhyarujina that the Contempt Petition having been dismissed, there is no question of the Claimant/ Decree Holder violating any order of status-quo passed by the Court at Pune or because of that the Decree cannot be enforced or executed. The Respondent/ Judgment Debtor had filed a Contempt Petition alleging breach and violation of this status-quo order, but that petition is dismissed. Even the suit before the Court at Pune is dismissed. Therefore, this is a just technical objection raised to delay the execution and enforcement of the foreign judgment and decree.
17. Lastly, Mr.Andhyarujina submits that the argument that the Judgment is ex-parte and not on merits of the case, is devoid of any substance. The ex-parte judgment can also be on merits. This is not a case where the judgment has been delivered only for want of appearance of the Respondent/ Judgment Debtor or want of defence. This is a judgment delivered on merits by taking into account the plea of the Respondent/ Judgment Debtor on jurisdiction, so also, on merits. There is detailed and elaborate discussion of the case and the version of the Respondent/ Judgment Debtor in particular. Once such is the position, then, the judgment is conclusive and must be enforced after the Claimant/ Decree Holder has satisfied all requirements of section 44-A of the CPC. Mr.Andhyarujina relies upon a decision of the Honourable Supreme Court in the case of M/s International Woolen Mills v/s M/s Standard Wool (U.K.) Ltd. reported in AIR 2001 SC 2134. Mr.Andhyarujina submits that the burden that the judgment is not conclusive is on a party, namely, the Respondent/ Judgment Debtor who alleges it not to be so. In this case, the Respondent/ Judgment Debtor has failed to discharge the said burden. Once the burden is not discharged, then, the Judgment and Decree must be enforced. Reliance is also placed upon a judgment of the learned Single Judge of this Court in the case of China Shipping Development Co.Ltd. v/s Lanyard Foods Ltd. reported in (2008) 142 Company Cases 647 (Bom).
18. On the other hand, Mr.Seervai, learned Senior Counsel appearing on behalf of the Respondent/ Judgment Debtor, submits that the Execution Application is for enforcement of the Decree of a superior court of reciprocating territory. That Decree can be executed only by recourse to section 44-A of the CPC. Language of section 44-A(2) of the CPC is mandatory. It admits of only one interpretation. There is no certificate within the meaning of section 44-A(2) of the CPC. In these circumstances, this Court cannot execute the Decree of the English Court and the Execution Application itself was incompetent and not maintainable. Mr.Seervai submits that there is no question of any substantial compliance inasmuch as filing of a certificate required by the section is a condition precedent to exercise of jurisdiction thereunder. If no such certificate is filed the application for execution is liable to be dismissed. The Full Bench decision of the Madras High Court (supra) has not considered this aspect and its observations, therefore, cannot be said to be binding. Mr.Seervai has taken me through the Full Bench decision and has submitted that this judgment will have no application to the facts of the present case.
19. Mr.Seervai has then emphasized that the Judgment of the English Court is not on merits of the case. There is no participation of the Respondent/ Judgment Debtor. The Judgment and Order dated 20.12.2007 of the English Court is only on the jurisdiction. That is supposed to be rejecting the submissions of the Respondent/ Judgment Debtor that it has a arguable case. However, after rejecting that objection, the Court must decide the claim of the Claimant/ Decree Holder on merits. That can be only after the Claimant/ Decree Holder proves the claim by leading evidence. There is no reference to any such evidence led by the Claimant/ Decree Holder. Further, there is no finding that they have relied on any documents and their contents are proved. In any event, the claim that is awarded is of damages. There is absolutely no evidence to prove the damages and loss sustained. Such damages cannot be awarded unless the Claimant/ Decree Holder brings forward adequate material to show that it tried to mitigate losses, but even then the same are sustained. There has to be evidence as to how losses are sustained because of non lifting of material by the Respondent/ Judgment Debtor. Admittedly, there is no evidence on this aspect leave alone any discussion. In these circumstances, a summary judgment delivered by the Foreign Court cannot be said to be binding and conclusive. Consequently, the Notice must be discharged. Mr.Seervai has relied upon the decision of the Honourable Supreme Court in the case of M/s International Woolen Mills (supra).
20. With the assistance of Mr.Andhyarujina and Mr.Seervai, I have perused the Execution Application, the Notice, the Affidavits on record with annextures thereto including the Judgment of the English Court.
21. There is no dispute in this case that the Decree that has been passed on 21.05.2008 by the Queen's Bench Division, Commercial Court, Royal Courts of Justice, United Kingdom is a decree of a superior court. There is no dispute that the Decree is of a court in reciprocating territory. Therefore, there is no dispute that sub-section (1) of section 44-A of the CPC has been complied with. What has been argued is that together with the certified copy of the Decree, the Claimant/ Decree Holder is required to file a certificate from the superior court stating the extent, if any, to which the Decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under section 44-A, be conclusive proof of the extent of such satisfaction or adjustment. It is argued by Mr.Seervai that such certificate is to be filed together with the certified copy of the Decree and admittedly, no such certificate is filed together therewith. Then, the Execution Application cannot be entertained and once it cannot be entertained, then, this Court is not competent to execute the Decree. Reliance is placed by him on language of the provision.
22. It is not possible to agree with Mr.Seervai because section 44-A of the CPC appears in a chapter titled "Execution" under Part-II of the CPC. Sections 36 and 37 are general provisions. Sections 38 and 39 which also fall in this Part are under the headings "Court by which decree may be executed" and "Transfer of decree". Similar are sections 40, 41, 42 and 43. All these provisions enable the Executing Court to execute the decrees passed by the Civil Courts even in places to which the CPC does not extend, the decrees of Revenue Courts, the Decrees passed by the Courts in reciprocating territory etc.. It is to enable the parties armed with decrees to approach the Executing Court and seek its assistance so that they can execute the same that Section 44-A was inserted by section 2 of the Code of Civil Procedure (Amendment) Act, 1937 (Act 8 of 1937). By the Government of India (Adaption of Indian Laws) Order, 1937, a few changes were made in the section. In the light of the Order and further by virtue of the substitution by the Act 2 of 1951 and the Act 71 of 1952 that one finds two explanations below section 44-A. Therefore, a District Court which is empowered to execute the Decree can also execute the Decrees of any of the superior courts of any reciprocating territory. The Decree may be executed on its certified copy being filed in a District Court. Thereafter, it would be taken as if it is a decree passed by the District Court itself. There is requirement to file a certificate indicating whether such decree has been satisfied or adjusted.
23. In the case of M.V. AL. Quamar v/s Tsavliris Salvage (International) Ltd. and others reported in AIR 2000 SC 2826, the Honourable Supreme Court of India analysed the scheme of section 44-A of the CPC and held thus:-
"8. .......... Therefore, the transferee Court in India must be a competent Court, which at the time of making an application for transfer of decree by the decree holder, should be shown to have jurisdiction to pass such a decree even originally. It is easy to visualise that, this requirement of a transferee Court in India which gets jurisdiction qua such execution proceedings only on transfer from competent executing Court which has passed the decree in India is conspicuously absent, when we turn to Section 44-A. It 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. ........
10. Once decree of foreign Superior Court is sought to be executed under Section 44-A of the C.P.C. as if it is the decree of the Indian Court executing the same, no further question would survive regarding competence of such executing Court. ........
47. ........ As regards the domestic law Section 44-A of the Civil Procedure Code may be considered as one of the basic elements of domestic law viz. a viz. foreign judgments. ..........
48. Incidentally, a plain reading of Section 44-A would depict the following components:
(i) The decree must be of a superior court of a reciprocating territory;
(ii) the decree is to be filed in a District Court;
(iii) The decree may be executed in India as if it had been passed by the District Court;
(iv) Provisions of Section 47 of the CPC shall apply, subject to the exceptions specified in clauses (a) to (f) of Section 13;
(v) "Decree" means any decree under which a sum of money is payable. (See Explanation II).
49. Section 44-A 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 corelation 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 44-A. 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 44-A 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 44-A 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 44-A. The conferment of jurisdiction in terms of Section 44-A, 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.
57. As noticed above Section 44-A is an independent provision enabling a set of litigants whose litigation has come to an end by way of a foreign decree and who is desirous of enforcement of the same: It is an authorisation given to the foreign judgments and as noticed above, the Section is replete with various conditions and as such independently of any other common law rights, an enabling provision for a foreign decree holder to execute a foreign decree in this country, has been engrafted on to statute book to wit: Section 44-A of the Code.
59. Mr.Chidambaram in support of his contention of 'Fundamental Principles' has also taken us through the provisions of Sections 16, 17, 19 and 20 of the CP Code. Admittedly and without much dialation Section 20 overlaps Section 19 (see in this context Mulla's Civil Procedure Code, 15th Edn., Vol.I, page 240). The submissions pertaining to the fundamental principles of execution does not, however warrant, in our view, a fuller and detailed discussion save to note that Section 44-A is a departure from the scheme of execution of domestic decree. By virtue of Section 44-A(3), all defences under Section 13(a) to (f) which reads as under are available to a defendant: ...........
60. As a matter of fact this is a scheme alien to the scheme of domestic execution as is provided under Section 39(3) of the Code. The scheme under the latter section is completely a different scheme wherein the transferee Court must be otherwise competent to assume jurisdiction and the general rule or the principle that one cannot go behind the decree is a permissible proposition of law having reference to Section 39(3) of the Code. Section 44-A however is having a inbuilt scheme of execution which is not in any comparable situation with the scheme in terms of Section 39(3). One can thus from the above conclude that whereas the domestic law, execution scheme is available under Sections 37, 38, 39, 41 and 42, Section 44-A depicts an altogether different scheme for enforcement of foreign judgments through Indian Courts. Reference in this context may also be made to the provisions as contained in Order 21 Rule 22 of the Code which expressly provide that in the event of their being an application for execution and the same been taken out beyond a period of two years after the date of the decree, there is existing a mandatory obligation to serve a notice to show cause against the execution. Such a requirement of the decree being more than 2 years old is not mentioned as regards the provisions of execution of decree filed under Section 44-A. This is a new introduction in the 1976 Code and in our view substantiates the reasonings as above and supports the contention of Mr.Desai as regards two separate and independent Schemes for execution."
24. Once the Honourable Supreme Court has analyzed the scheme in the afore quoted words, then, there is no warrant for holding that if a certificate is not filed, the Decree cannot be executed. The Decree can be executed after a certified copy thereof has been filed. Together with the same a certificate from a superior court is required to be filed and that requirement, to my mind, has been rightly held to be procedural. Even if the language of sub-section (2) of section 44-A is taken into account with particular emphasis on the words "shall be filed" appearing therein, yet there is no manner of doubt that merely because such a certificate is not filed or is filed later on, that the Execution Application itself cannot be entertained or is incomplete as contended by Mr.Seervai. The Execution Application that is filed in this case under Order XXI Rule 11 is on the file of this Court and Mr.Seervai does not dispute that together therewith a certified copy of the Decree of the English Court has been filed by the Claimant/ Decree Holder. That a certificate as contemplated by section 44-A(2) of the CPC is not filed, does not mean that the Court cannot entertain the Execution Application or proceed in furtherance thereof. The Full Bench of the Madras High Court overruled its earlier decision which had taken a view that non submission of a certificate would be a bar to the maintainability of the Execution Application. The Full Bench held that whole purpose appears to be to determine or fix the particular District Court in India to execute the foreign decree or judgment and attract to its execution by such court the manner of procedure that governs execution of its own decree. Understood thus, the requirement of sub-section (2) of section 44-A does not pertain to jurisdiction, but is procedural. It is in this context, the Full Bench held thus:-
"20. We now pass on to a consideration of the second question. From our earlier observations it should be clear that the fiction in S.44-A(1) does not, in any way, affect the original date of the foreign judgment when filed in a District Court in India. There is no indication in the section that the date of the foreign judgment should be taken to be anything but the original date. But can it be said that the Indian Limitation Act applies to it even from that date? Neither S.44-A nor the International Law relating to foreign judgments and their execution in the local courts provides an answer. But there can be only one answer, as we think namely that it does not. The jurisdiction of a District Court in this country to execute a foreign judgment arises from and exercisable by the filing of a certified copy of the foreign decree or judgment. It is only thereafter, and never until then, the procedural laws as lex fori will be attracted to execution. The Indian Limitation Act can possibly apply to such execution only after filing a certified copy of the foreign decree or judgment as required by S.44-A(1).
It is argued for the appellant that since sub-sec.(2) of S.44-A requires a non-satisfaction certificate from the foreign superior court to be filed together with a certified copy of the decree of such court, compliance with that requisite is a condition precedent to invoking the jurisdiction of the District Court for execution of the foreign decree or judgment and that, therefore, the right to apply for execution arises the moment the foreign court issues a nonsatisfaction certificate. We are unable to accept this contention on two grounds. The first is what we just now referred to, that before the filing under S.44-A(1), the Indian Courts will have no jurisdiction to execute the foreign judgments and before that event, therefore, there is no possibility of the application of the Limitation Act to foreign judgments. The second is that sub-sec.(1) of S.44-A does not require the filing of a nonsatisfaction certificate as a condition for the District Court to assume jurisdiction. Sub-section (2) of that section does not pertain to jurisdiction but is in our view procedural; it contains besides a rule of evidence as to the conclusiveness of the certificate in the specified respect. We are, with respect, unable to agree with 1963-2 Mad. LJ 412: (AIR 1964 Mad 221) which held that unless a non-satisfaction certificate is filed together with a certified copy of the foreign decree, the mere filing of a certified copy of the foreign judgment or decree alone will not vest the District Court with jurisdiction to execute."
25. A perusal of paragraph 20 would make it clear that there were specific questions referred for consideration of the Full Bench and those questions are formulated and referred to in paragraph 11 of this judgment. While answering them and particularly Question No.1 that the aforequoted observations have been made. It is not possible to agree with Mr.Seervai that the Full Bench was not dealing with the contention that is raised by him or the objection with regard to non compliance of section 44-A(2) of the CPC. Once I agree with the conclusion of the Full Bench that the requirement is procedural and capable of substantial compliance, then, accepting the statement of Mr.Andhyarujina that the Claimant/Decree Holder would file such certificate within the time stipulated by this Court, would meet the ends of justice and fulfill the procedural requirement of section 44-A(2) of the CPC as well.
26. The next contention of Mr.Seervai that the Judgment & Decree of the English Court is not on merits is equally untenable. Mr.Seervai does not dispute that an ex-parte Judgment and Decree can be on merits. The Honourable Supreme Court of India in the case of International Woolen (supra) has clearly held that the burden of proving that a decree is not on merits would be on a party alleging it. The Court, however, does not expect impossible proofs. Yet, when there is no evidence adduced on the Plaintiff's side and the suit is decreed merely because of the absence of the Defendant either by way of penalty or in a formal manner, the judgment may not be one based on the merits of the case.
27. I have applied these very principles and equally the test that whether, the judgment is one on merits must be apparent from the judgment itself. In the instant case, the Respondent/ Judgment Debtor itself has, to its affidavits, annexed the judgment of the English Court as also the order dated 20.12.2007.
28. In the judgment dated 21.05.2008 the Court considered earlier order on the jurisdictional issue dated 20.12.2007, but observed that it will not be enough to pass any judgment in favour of the Claimant/ Decree Holder on this basis, but the Claimant/ Decree Holder must satisfy the Court that the Respondent/ Judgment Debtor has no real prospect of defending the claim or that there is no other compelling reason why the case should not be disposed of at trial. Therefore, the Court proceeded to consider the material including two witness statements which were placed on behalf of the Respondent/ Judgment Debtor. The witness statements of the Claimant/ Decree Holder are also referred to. There is also an additional witness statement from Carrie Michelle Angell dealing with interest rates. It is in that background that the Court proceeded to analyze the statements and submissions. There is detailed reference to the correspondence between the parties including emails and on the basis of the oral statements, it is concluded that the Contract was made on 1st February. Paragraphs 35 to 39 of the judgment read thus:-
"35. In my judgment, it is overwhelmingly proved in this case that a contract was made on 1 February. This is a market which deals in contracts made by telephone. Methanol is a volatile product in price terms. I do not see how how business could be done between traders if the contract was not to be concluded for some considerable time. In that time, prices are bound to go up or down, and it is simply not practical to do business.I am afraid I simply do not understand the point made in the witness statements of Mr Basit suggesting that the volatility of the market points in favour of there being no contract until a formal document is signed. On the contrary, it seems to me to point exactly the opposite way.
36. I am quite satisfied that the parties when they made their agreement on 1 February, they intended it to be a binding contract. That is how it was put in the emails sent by Vitol's agent Crescent to Deepak on 1 February. It is how it was put in the email attached in the indent. It is how it is put in the indent itself. There was not a word of demurral from Deepak in any of the correspondence at the time suggesting that there had been some kind of misunderstanding, and I am absolutely sure that a corporation with the size and expertise of Deepak, would have been quick to say that there was no contract if that is what they thought.
37. The reality is that it was not until the market had turned very sour that they started to query whether there was a contract, and that was something like a month after the deal had been done. But even if there was any doubt about that, it seems to me to be unanswerable that there was a contract concluded when Deepak agreed to the nomination of a vessel. I cannot understand how Deepak could possibly have agreed to nomination of a vessel if there was not by then to be a binding contract. What would there be to ship and to whom if there was no contract? By that time the bits and pieces of detail, which had been raised by Deepak, had been agreed; in particular there was agreement as to the number of bills of lading that were to be issued.
38. I, without hesitation, reject the argument that there was no contract. It seems to me that it is overwhelmingly clear that a contract was concluded on 1 February and that was re-affirmed on 22 February when the nomination of the vessel was agreed. I also reject the alternative case that was run before Mr Justice Steel that this was in some way tied up with the long term supply contract. It is quite clear on the correspondence that it was not. As Mr Justice Steel said in his judgment, the details of the proposed long term supply contract were not even put forward until the 14th of February, that is two weeks after the February agreement had been made.
39. So I am quite satisfied that a contract has been made. It was obviously been repudiated. Deepak denied the contract had been made, they refused to take the cargo and they refused to open a letter of credit. I am satisfied that they did repudiate the contract and that that repudiation was accepted by Ince & Co on the 4 April. It follows that I am sure that it has been established that Vitol have a good case and that there is no answer to it. And I can see no other reason why there should be a trial. Indeed I see every reason why there should not be, given that it appears that Deepak for their own reasons will not play any further part in these proceedings."
29. It is apparent that these findings are rendered after considering depositions of the witnesses of both sides, so also, the defence of the Respondent/ Judgment Debtor before me. There is no substance in the contention of Mr.Seervai that this is a summary judgment and based only on the order dated 20.12.2007. It is apparent that the learned Judge has not rested and premised his conclusions and findings only on the finding on jurisdiction contained in the order dated 20.12.2007 as alleged and contended by Mr.Seervai. The learned Judge has called upon the Claimant/ Decree Holder to independently satisfy him that the defence of the Respondent/ Judgment Debtor has no foundation or basis in law and on facts. Upon satisfaction and independent proof that the learned Judge has rested his conclusions which are reproduced by me above. Such conclusions are on merits and nothing else. They are not a sketchy or short analysis of the case of both sides nor are they based on the agreement with the contentions of the Claimant's/ Decree Holder's counsel. The learned Judge has applied his mind to both versions including one of M/s Deepak Fertilizers that there was no contract between the parties. If the objections on merits have been raised in the statements of the witnesses of the Respondent/ Judgment Debtor and they have been referred to and after critical evaluation of the entire material, an ex-parte judgment has been rendered on merits, then, to my mind, it fully satisfies the tests led down in the Honourable Supreme Court's decision relied upon by Mr.Andhyarujina as well as Mr.Seervai.
31. A faint attempt by Mr.Seervai to show that the Execution Application filed by the Claimant/ Decree Holder is incomplete and in the absence of the particulars under clause (j) of Order XXI Rule 11 of the CPC it cannot be presumed that this is the Court of competent jurisdiction, is also without any substance. The Order XXI Rule 11 of the CPC provides for an oral as well as written application for execution. That written application should contain, in tabular form, the particulars specified in the said Rule. Clause (j) is entitled "the mode in which the assistance of the Court is required". On perusal of the original application for execution, it is apparent that the Claimant/ Decree Holder has filled in the said particulars and they demonstrate that the Respondent/ Judgment Debtor has movable and immovable properties in Mumbai. The attempt of Mr. Seervai is to show that in the absence of any particulars being filled in and the Respondent/ Judgment Debtor being based in Pune, as is clear according to him from the copy of the Execution Application supplied to the Respondent/ Judgment Debtor, this Execution Application cannot be made to this Court. However, even otherwise, the particulars could have been supplied later on as is apparent from the procedural provisions and particularly Order XXI Rule 17 of the CPC. Therefore, nothing much can be made of the copy of the Execution Application supplied to the Respondent/ Judgment Debtor in this case. In any event the original application and a copy of which is now supplied to the Respondent/ Judgment Debtor sets out the mode in which the assistance of this Court is required for execution of the subject foreign judgment and decree. In such circumstances even this attempt of the Respondent/ Judgment Debtor must fail.
32. Having dealt with each of the objections that have been raised and the arguments being restricted with regard thereto, there is no alternative but to conclude that the Respondent/ Judgment Debtor has failed to show cause against the Notice under Order XXI Rule 22 of the CPC in this case. All requirements of the said provision having been satisfied and the objections thereto being found to be without any merit and substance, this Notice is made absolute. The Respondent/ Judgment Debtor to pay the costs quantified at Rs.10,000/- to the Claimant/ Decree Holder within a period of two weeks from the date of receipt of a copy of this judgment. However, the Claimant/ Decree Holder to file the certificate contemplated by section 44-A(2) within 4 (four) weeks from today and only thereupon the further steps in Execution would be initiated and not otherwise.
34. All that this Court has made is to make the Notice under Order XXI Rule 22 of the CPC absolute. The Execution will now proceed. It is not as if the Respondent/ Judgment Debtor has some immediate apprehension or threat as the procedural requirements have to be fulfilled by the Claimant/ Decree Holder before any coercive measures are taken to recover the money under the foreign Judgment and Decree. Therefore, the stay is refused.