Remanded

Super General Company v. Suresh Thonikkadavu Veedu

Kerala HC21 Feb 2017CRP/506/2016

Case brief

AI extract

What is this about?

A revision petition challenging the dismissal of an execution petition against a foreign judgment from Sharjah. The court held that Section 44A CPC requires a Central Government notification designating a reciprocating territory and superior courts, noting that a 1999 bilateral agreement does not substitute this statutory mandate. The matter was remanded to verify such notification.

What did the court decide?

Impugned order dated 16.11.2016 set aside; matter remanded to lower court to ascertain existence of notification under Section 44A CPC; parties directed to appear on 20.3.2017.

Super General Company Vs Suresh Thonikkadavu… — Civil Procedure and Limitation | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938

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CRP.No. 506 of 2016 (D)

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AGAINST THE ORDER IN E.P.NO.35/2014 IN CASE NO.2200/2011 OF THE COURT OF THE DISTRICT JUDGE, KASARGOD DATED 16-11-2016.

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REVISION PETITIONER: PETITIONER:DECREE HOLDER:

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SUPER GENERAL COMPANY

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REP.BY ITS POWER OF ATTORNEY HOLDER, S.G.CHANCERY CHAMBERS, FZS, RAS AL KHAIIMAH, U.A.E. REP.BY ITS PARTNER & MANAGER, MR.SHAFI MOGRAL MASJID, AGED 46 YEARS, S/O.ABDUL KHADER, RESIDING AT LARGIN HOUSE, KUMBLA P.O., KOIPADY VILLAGE, KASARAGOD TALUK & DISTRICT.

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BY ADVS.SRI.SAJI MATHEW

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SRI.DENU JOSEPH

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SMT.NEETHU REGHUKUMAR

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RESPONDENTS: RESPONDENT: JUDGMENT DEBTOR:

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SURESH THONIKKADAVU VEEDU

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PROPRIETOR OF AL SINAM ELECTRICAL DEVICES TRADING, SHARJAH, UAE., S/O.T.KANNAN, RESIDING AT BEDADKA VILLAGE, KASARAGOD TALUK & DISTRICT, 671541.

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R1 BY ADV. SRI.D.KRISHNA PRASAD R1 BY ADV. SMT.S.SANTHY R1 BY ADV. SMT.MINI V.MENON R1 BY ADV. SRI.P.VISHNU PRASAD

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.02.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.R.P.NO.506 OF 2016

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE A1: TRUE COPY OF THE EXECUTION PETITION FILED AS E.P.NO.35/2014 BEFORE DISTRICT COURT, KASARAGOD.

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ANNEXURE A2: THE CERTIFIED COPY, ISSUED BY THE DISTRICT COURT, KASARAGOD, OF ENGLISH TRANSLATION OF THE EXECUTABLE JUDGMENT/DECREE IN CASE NO.2200/2011 OF THE SHARJAH FEDERAL COURT OF FIRST INSTANCE, ATTESTED BY MINISTRY OF JUSTICE, UNITED ARAB EMIRATES AND ASSISTANT CONSULAR OFFICER OF THE CONSULATE GENERAL OF INDIA, DUBAI, UAE.

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ANNEXURE A3: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN E.P.NO.35/2014 BEFORE DISTRICT COURT, KASARAGOD.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

AHZ/

“C.R.”

P.Somarajan, J.

C.R.P. No.506 of 2016 (D)

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Dated this the 21^st day of February, 2017

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O R D E R

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This revision by the petitioner is against the order dated 16.11.2016 in E.P.No.35 of 2014 passed by the District Court, Kasaragod. A foreign judgment alleged to have been passed by a three Judge Bench of Sharjah Federal Court of first instance in favour of the petitioner granting recovery of money against the respondent put in execution. The District Judge, on consideration of Ext.B1 passport and after hearing both the parties, found that the counter petitioner/ judgment debtor was not in Sharjah at the time when the proceedings were initiated as well as at the time when the judgment was pronounced and that no opportunity was given to the counter petitioner to submit his case and no notice was also served on him regarding the proceedings initiated. Consequently, the execution petition was dismissed by virtue of the impugned order dated 16.11.2016.

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C.R.P. No.506 of 2016 (D)

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Heard Sri.Saji Mathew, learned counsel appearing for the petitioner and Sri.D.Krishna Prasad, learned counsel appearing for the respondent.

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The enforceability of a foreign judgment/decree within the territory of India and the Court established within its territory are governed by Sections 13, 14 and 44A of the Code of Civil Procedure. Section 13 deals with the requirements on which a foreign judgment could be treated as conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigation under the same title, except the grounds enumerated in clauses (a) to (f) to Section 13 CPC. The grounds enumerated in clauses (a) to (f) are exceptions to general rule engrafted and embodied under Section 13 CPC. Section 14 of the Code of Civil Procedure deals with the presumption as to foreign judgments and the Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction,

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C.R.P. No.506 of 2016 (D)

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unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction. By its nature, the power given under Section 14 and its content would make the legal position clear that the presumption available under Section 14 is a rebuttable one.

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Section 44A deals with the forum in which a foreign judgment can be executed. Section 44A is extracted below for reference:

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“S.44A. Execution of decrees passed by Courts in reciprocating territory.-- (1) Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.

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(2) Together with the certified copy of the decree shall be filed a certificate from such 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 this section, be conclusive proof of the extent of such satisfaction or adjustment.

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C.R.P. No.506 of 2016 (D)

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(3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13.

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Explanation 1 .- 'Reciprocating territory' means any country or territory outside India which the Central Government may, by notification in the official Gazette, declare to be a reciprocating territory for the purposes of this section; and 'Superior Courts', with reference to any such territory, means such Courts as may be specified in the said notification.

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Explanation 2. - 'Decree', with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.”

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(emphasis supplied)

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C.R.P. No.506 of 2016 (D)

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Sub-section (2) of Section 44A says that together with the

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certified copy of a decree of any of the superior Courts of any reciprocating territory, a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted shall also be filed and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. By virtue of sub-section (3) of Section 44A, Section 47 also made applicable to those proceedings initiated before the District Court based on a certified copy of the foreign decree/judgment. It further says that the person who wants to execute the decree should satisfy the requirements under Section 13 so as to establish that it will not fall under clauses (a) to (f).

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Explanation 1 defines what is 'reciprocating territory' and Explanation 2 defines what is a 'decree'. Explanation 1 mandates a notification by the Central Government in the official Gazette declaring a 'reciprocating territory' for the purposes of Section 44A and also to specify 'Superior Courts' with reference to any such territory. In order to bring the matter within the sweep of Section 44A CPC, at least two conditions should be satisfied. That the decree or

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C.R.P. No.506 of 2016 (D)

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the judgment put in execution along with the certificate are issued by any 'Superior Court' of any 'reciprocating territory' as notified under Section 44A by the Central Government in its official Gazette. The mandate under Section 44A is to satisfy with respect to existence of a notification by the Central Government in its official Gazette declaring two things, namely, (1) a reciprocating territory for the purpose of Section 44A and (2) the Superior Court in reference to that reciprocating territory for the purpose of Section 44A CPC. Without satisfaction of these two mandates, no decree or judgment or certificate, if any, issued by any foreign country can be executed within the territory of India under Section 44A CPC, which is the only enabling provision in the Code for executing a foreign judgment/decree for money.

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When the matter came up for hearing, the learned counsel for the petitioner produced a copy of the agreement dated 25.10.1999 entered into between the Republic of India and the United Arab Emirates on juridical and judicial co-operation in civil and commercial matters, for the service of summons, judicial documents, commissions, execution of judgments and arbitral awards. There are

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C.R.P. No.506 of 2016 (D)

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provisions in the abovesaid agreement in respect of matters which would fall under some of the provisions contained in the Code of Civil Procedure such as service of summons, acceptance of judicial documents, issuance of commissions, execution of judgments and arbitral awards. Article II of the said agreement mandates that request for legal assistance shall be made through the Central Authorities of the contracting parties and that in the Republic of India the Central Authority is the Ministry of Law, Justice and Company Affairs and in the United Arab Emirates, the Central Authority is the Ministry of Justice. There are Articles 1 to XXVI in the said agreement. Going by Article II, it is clear that legal assistance, if any, required for service of summons, issuance of commissions, execution of judgments etc. should be through the Central Authorities named in the said agreement. It is not a notification issued under Section 44A CPC. It is fairly conceded by the counsel appearing for both the parties that they could not trace out any notification issued declaring either United Arab Emirates as a reciprocating territory or Sharjah Federal Court of first instance as a Superior Court under Section 44A CPC in spite of the earnest efforts made by them and the only document they could trace out is the agreement entered into

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C.R.P. No.506 of 2016 (D)

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between the Republic of India and the United Arab Emirates dated 25.10.1999. As per Section 44A Explanation 2 , an award, though enforceable under law, is excluded from its purview. But in the agreement, execution of arbitral award also included. No amendment has been effected to the Code either to Section 44A or otherwise consequent to the agreement entered into between the Republic of India and the United Arab Emirates in the matter of execution of decree/judgment of a foreign nation (United Arab Emirates). In short, the agreement which was entered by the Republic of India with the United Arab Emirates cannot be substituted in the place of a notification as mandated under Section 44A CPC.

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In paragraph 16 of the impugned order it is stated that the counsel who represented the plaintiff in the lower court produced a computer generated copy of clause 17 VVC-6/Admin.(F) dated 7^th May 2005 in connection with an agreement signed by the Government with the United Arab Emirates in the matters for service of summons, judicial documents, commissions, execution of judgments and arbitral awards. But it is not discernible from the

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C.R.P. No.506 of 2016 (D)

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reference made in paragraph 16 of the impugned order whether it is a notification issued under Section 44A CPC.

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In the said circumstances, it is fit and proper to grant an opportunity to the petitioner to ascertain the existence of notification, if any, under Section 44A CPC and to proceed with the matter in accordance with the law in force and, for that purpose, the decree and judgment of the lower court are hereby set aside. The matter is remanded back to the lower court for that purpose. The parties shall appear before the lower court on 20.3.2017.

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The Civil Revision Petition is disposed of as above.

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P. Somarajan Judge

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ahz/

Super General Company v. Suresh Thonikkadavu Veedu

Case brief

What is this about?

What did the court decide?

Super General Company v. Suresh Thonikkadavu Veedu

Case brief

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