Research › Browse › Judgment

Delhi High Court · body

1994 DIGILAW 386 (DEL)

DEUTACHE RANCO GMBH -DECRI HOLDER v. MOHAN MURTI

1994-05-24

SAT PAL

body1994
Sat Pal, J. ( 1 ) IN this case the decree holder along with the executionpetition, had filed an application bearing E. A. No-70/94 under Order 20 Rule 6-A of the Code of Civil Procedure (hereinafter referred to as the Code ) and inthis application it was stated that the decree had not yet been prepared and as suchthe last paragraph of the judgment be treated as decree for the purpose ofexecution under Order 20 Rule 6-A of the Code. This application was allowed on 18/03/1994 after hearing the learned Counsel for the parties and it was heldthat the last paragraph of the judgment dated 15/10/1993 in Suit No. l389/89 would be deemed to be a decree for the purpose of the execution petition. Thedecree holder was further directed to file the decree sheet as soon as the same wasobtained form the Registry. After hearing the learned Counsel for the parties onthe main execution petition, it was directed that warrants of attachment in respectof bank accounts and assets in the name of the judgment debtor mentioned in thelist of assets along with the petition be issued for 5/05/1994. A notice of thepetition was also directed to be issued to the judgment debtor through Counselwith regard to the relief claimed by the decree holder for detention of thejudgment debtor in the civil prison. ( 2 ) THE case was got listed by the Registry before Court on 24/03/1994for direction to the decree holder to furnish the particulars of the bank accountsand immovable properties. On the said date the learned Counsel for the decreeholder submitted that the judgment debtor was having an account as nonresidentexternal account with the Indian Bank, E-30, South Extension Part-11, New Delhiin his name. Learned Counsel for the decree holder, however, expressed herunability to give particulars of the other two accounts. The Registry was directedto take steps accordingly. ( 3 ) MEANWHILE, the decree holder moved another application under Section6 of the Bankers Books Evidence Act, 1891 read with Section 151 of the Code andin this application it was prayed that a direction be issued to the Indian Bank, E-30,south Extension Part-11, New Delhi and the Indian Overseas Bank, Golf Links,new Delhi to produce the copies of the entries in the bank records pertainingto the accounts/fixed deposit receipts of the judgment debtor for the period May1989 till date. This application came up for hearing on 2/05/1994 and afterhearing the learned Counsel for the decree holder, a notice was directed to beissued to the above mentioned banks to produce the copies of the entries in thebank records pertaining to the accounts/fixed deposit receipts of the judgmentdebtors for the period May 1989 till date and the case was adjourned to 1 6/05/1994. ( 4 ) 0n 5/05/1994 the case came up for hearing and learned Counsel for thedecree holder was directed to supply acomplete set of paper book to the learnedcounsel for the judgment debtor and the case was adjourned to 16/05/1994. On 16/05/1994 the case was adjourned to 18/05/1994 and it was directedthat the file of Suit No. 1383/89 be also placed before Court on the next date. ( 5 ) ON 18/05/1994 learned Counsel for the judgment debtor raised certainpreliminary objections regarding maintainability of the execution petiton whichare being dealt with herein after and arguments were heard on l8th and l9th May, ( 6 ) MR. Lekhi, the learned Senior Counsel appearing on behalf of the judgmentdebtor submitted that the decree holder got the orders on 18/03/1994 in EA70/94 by misrepresentation of the facts. He further submitted that the learnedcounsel for the decree holder deliberately did not bring to the notice of the Courtan objection raised by the Registry on 6/03/1994 as well as on 16/03/1994 that decree had not been drawn for want of Court fee required to be depositedby the decree holder. He also submitted that the affidavit filed along with EA70/94 was false inasmuch as in the said application it was not stated that the decreehad not been prepared as the additional Court fee had not been deposited by thedecree holder. He further submitted that under Order 20 Rule 6-A of the Code,last para of the judgment could be deemed to be decree for the purposes ofexecution only if the full Court fee had been deposited by the decree holder. He,therefore, contended that since the decree holder had not deposited the additionalcourt fee till 18/03/1994, the execution petition was not maintainable on thatdate. He,therefore, contended that since the decree holder had not deposited the additionalcourt fee till 18/03/1994, the execution petition was not maintainable on thatdate. ( 7 ) THE learned Counsel further drew my attention to Sectoin 5 of the Bankersbooks Evidence Act, 1891 and submitted that in terms of the afoesaid provisions,no special cause was made on behalf of the decree holder to issue a notice to theindian Bank, South Extension Part-11, New Delhi and Indian Overseas Bank, Golflink, New Delhi to produce copies of the entries in the bank records pertaining tothe account/fixed deposit receipts of the judgment debtor. In support of hiscontention the learned Counsel placed reliance on a judgment reported in the case of Lakhta, (1992) Vol. 2 LLR 269. The learned Counsel, however, submitted thatearlier orders passed on 18/03/1994 be not recalled. ( 8 ) MR. Bhatia, the learned Senior Counsel, appearing on behalf of the decreeholder submitted that the decree holder had already paid the full Court fee withregard to the relief granted by this Court except the relief regarding the differencebetween the rate of exchange prevailing on the date of filing of the suit and rateof exchange prevailing on the date of decree. He further submitted that in replyto letter dated 1 1/01/1994 issued by the Registry, the decree holder hadsubmitted the requisite information regarding the rate of exchange vide their letterdated 19/02/1994. He further submitted that thereafter the clerk of thecounsel of the decree holder had been approaching the Registry regularly andwhen the decree holder was informed about the exact amount of the additionalcourt fee payable by the decree holder, the same was immediately deposited on 26/03/1994. The learned Counsel also submitted that in terms of Order 20rule 6-A of the Code, the decree holder was not required to give any reason as towhy the decree has not yet been drawn up. The only condition is that in case thedecree has not yet been drawn up, the last para of the judgment shall be deemedto be decree for the purposes of execution. He, therefore, contended that sincethe additional Court fee had already been deposited on 26/03/1994, theobjection raised by the learned Counsel for the decree holder did not survive. The only condition is that in case thedecree has not yet been drawn up, the last para of the judgment shall be deemedto be decree for the purposes of execution. He, therefore, contended that sincethe additional Court fee had already been deposited on 26/03/1994, theobjection raised by the learned Counsel for the decree holder did not survive. ( 9 ) THE learned Counsel for the decree holder also drew my attention tosection 6 of the Bankers Books Evidence Act, 1891 and submitted that in terms ofthis Section, this Court had directed to issue a notice to Indian Bank, South Exension Part-11, New Delhi and Indian Overseas Bank, Golf Link, New Delhion 2nd May, 1994 to produroduce the copies of the entries in the bank recordspertaining to accounts/fixed deposit receipts of the judgment debtor. The learnedcounsel, therefore, contendedthat there was no merit in the contention urgedby the learned Counsel for the judgment debtor that the decree holder had notbeen able to make special cause for the said direction. The learned Counsel alsocontended that the judgment debtor be directed to appear in person in the Courtin terms of Order XXI Rule 30 of the Code. ( 10 ) I have given my thoughful consideration to the submissions made by thelearned Counsel for the partics and have also. perused the record. Admittedly on 18/03/1994 when the orders in EA 70/94 and in the execution petition werepassed, the decree sheet had not been drawn up. Further the last para of thejudgment dated 15/10/1993 passed in the suit consists of two parts. In thefirst part the suit for recovery of Rs. 1,51,50,000. 00 (equivalent of US Dollars1,000,000. 00) plus interest of Rs. 58,75,620. 00 was decreed with costs in favour ofthe plaintiff/decree holder and against the defendant/judgment debtor. andthe plaintiff/decree holder was also held to be entitled to pendente lite and futureinterest at the rate of 18 per cent per annum on the said amount. In the second partof this para the claim of the plaintiff for additional sum representing differencebetween the rate of exchange prevailing on the date of filing of the suit and the rateof exchange prevailing on the date of decree was also decreed. In the second partof this para the claim of the plaintiff for additional sum representing differencebetween the rate of exchange prevailing on the date of filing of the suit and the rateof exchange prevailing on the date of decree was also decreed. Admittedly, thecourt fee for the first part of the said para had already been paid by the plaintiff/decree- holder and the additional Court fee for the second part of the last para ofthe judgment was yet to be paid when the orders on 18/03/1994 werepassed. From the record I also find that the requisite information for the purposeof ascertaining the additional Court fee which was called for by the Registry fromthe decree holder vide letter dated 11/01/1994 was duly furnished by thedecree holder vide letter dated 19/02/1994 and though the saidinformation had already been furnished by the decree holder, the amount of theadditional Court fee had not been communicated to the decree holder when EA70/94 was filed on behalf of the decree holder. From this it is evident that evenif the learned Counsel for the decree holder had brought to my notice theobjection raised by the Registry on 6/03/1994 and 16/03/1994regarding deposit of additional Court fee, the first part of the last para of thejudgment was to be deemed to be decree for the purposes of execution as the decreesheet was not drawn up by that time. It will be relevant to point out here that afterthe decree holder came to know the exact amount of the additional Court fee to bedeposited, the same was deposited by the decree holder on 26/03/1994. Inview of these facts I do not find any infirmity in the orders passed on 18/03/1994 in EA 70/94 and in Execution Petition 58/94. ( 11 ) AS regards the objection raised by the learned Counsel for the judgmentdebtor that no special cause was made out on behalf of the decree holder in termsof Section 5 of the Bankers Books Evidence Act, 1891,1 do not find any merit in thiscontention. In the present case the decree holder has filed an application undersection 6 of the Bankers Books Evidence Act, 1891 read with Section 151 of thecode and accordingly the orders were passed on 2/05/1994 in terms ofsection 6 of the Bankers Books Evidence Act, 1891 and not under Section 5 of the said Act. In the present case the decree holder has filed an application undersection 6 of the Bankers Books Evidence Act, 1891 read with Section 151 of thecode and accordingly the orders were passed on 2/05/1994 in terms ofsection 6 of the Bankers Books Evidence Act, 1891 and not under Section 5 of the said Act. Accordingly, I direct the learned Counsel appearing on behalf of theindian Bank, South Extension Part-11, New Delhi to produce copies of the entriesin the said bank record pertaining to the accounts/fixed deposit receipts of thejudgment debtor for the period May 1989 till date before the next date of hearing. I further direct that a fresh notice returnable on 7/07/1994 be issued to theindian Overseas Bank, Golf Link, New Delhi to produce copies of the entries in thebank record of the account/fixed deposit receipts of the judgment debtor for theperiod May 1989 till date. ( 12 ) I also direct that a notice of the Execution petition be also issued to thejudgment debtor through Counsel for 7/07/1994 with regard to the reliefclaimed by the decree holder for the detention of the judgment debtor in the civil prison.