( 1 ) THESE motions are by plaintiffs claiming principally the following reliefs:- notice OF MOTION NO. 727 OF 2002 (a) Disclosure of transactions and documents between defendants and chitalias; (b) Deposit by the Defendants in this court of the various amounts received by them which are the subject matter of claim Nos. I to VI in the plaint; (c) Disclosure of the present status of the amounts received by the defendants; (d) Injunction restraining defendants from removing their assets from the jurisdiction of this Honble Court; notice OF MOTION NO. 1740 OF 2002 (a) Disclosure by defendants of all their assets; (b) Injunction restraining defendants from dealing with/ disposing their assets; notice OF MOTION NO. 134 OF 2003 (a) Deposit by defendant Nos. 2 to 6 and 8 to 10 of Rs. 2 Crores in this court in respect of the 15 Sulzer Machine transaction; ( 2 ) PLAINTIFFS as well as contesting defendants made lengthy submissions. Parties have filed number of affidavits and relied upon various documents. Submissions in writing have also been handed in. Reliance is placed on several decisions of Indian as well as English courts. Therefore, it is necessary to deliver a detailed order. ( 3 ) AT the outset, Mr. Seervai, learned Senior counsel appearing for plaintiffs points out that two notices of motion being Nos. 727 of 2002 and 134 of 2003 are being pressed by him. As far as other motions are concerned either they are worked out or the reliefs prayed therein would not survive in the light of the findings and conclusions in these motions. Mr. Dwarkadas, learned Senior Counsel appearing for some of the contesting defendants has also advanced submissions only insofar as reliefs claimed in these motions and is agreeable to the above course of action. ( 4 ) AT the further outset, it is necessary to clarify that all observations and findings are prima facie and recorded only for the purpose of disposal of these motions. They shall not in any manner influence the Court at the trial of the suit. ( 5 ) MR. SEERVAI, learned Senior Counsel appearing for plaintiffs submits that the plaintiffs are desirous of claiming further reliefs and are, therefore, not satisfied with the ad-interim orders passed by this Court. They shall not in any manner influence the Court at the trial of the suit. ( 5 ) MR. SEERVAI, learned Senior Counsel appearing for plaintiffs submits that the plaintiffs are desirous of claiming further reliefs and are, therefore, not satisfied with the ad-interim orders passed by this Court. He invites me to go into all aspects of the matter and render a decision as to whether plaintiffs have made out a strong prima facie case insofar as above mentioned reliefs, whether balance of convenience is in their favour and whether, not only they, but other creditors would suffer irreparable harm and injury if the aforesaid preventive as well as mandatory orders and directions are not issued by this Court. 5a. Plaintiffs are filing the above suit for and on behalf of : "i) George E. Mills Jr. , who is the trustee in bankruptcy of the estates of one Suresh Chitalia and one Devang chitalia, both residents of U. S. A. pending before the United States bankruptcy Court, Middle District of florida, Orlando Division (hereinafter referred to as "the Bankruptcy Court" ). ii) Leigh R. Meininger who is the trustee in Bankruptcy of EST Fibers Inc. a Company registered in New Jersey USA, pending before the said Bankruptcy Court; iii) Gene T. Chambers who is the trustee in Bankruptcy of Lokman establishemnt a company registered in leichtenstein pending before the said bankruptcy Court. 5b. Defendant No. 1 is a company incorporated under the provisions of the Companies Act, 1956 and allegedly carries on finance and leasing business. The shareholding of defendant No. 1 is held by Suresh Chitalia, Devang Chitalia (the son of Suresh Chitalia), defendant No. 12 (wife of devang Chitalia) and at the relevant time, by defendant No. 2. Defendant No. 2 is a business associate and friend of Suresh and Devang chitalia and at the relevant time was a shareholder of defendant No. 1. Defendant No. 2 personally, through his family members and the companies controlled by him is involved in all the transactions which form the subject matter of the suit. Defendant No. 10 is a company owned by defendant No. 2 and his family/ associates. Defendant No. 11 is the father in law of Devang chitalia and inter alia was involved in the transaction set out herein. Defendant Nos. 2 to 8 all reside and/or carry on business in Mumbai. Defendant No. 10 is a company owned by defendant No. 2 and his family/ associates. Defendant No. 11 is the father in law of Devang chitalia and inter alia was involved in the transaction set out herein. Defendant Nos. 2 to 8 all reside and/or carry on business in Mumbai. Defendant No. 12 is the wife of Devang Chitalia. All defendants have close business and other relations with the Chitalia family and their business concerns and have represented them in various dealings in India. ( 6 ) IT is emphasised that the present suit is not filed by ITC Ltd. in its corporate capacity but as Trustee in bankruptcy of the Chitalias - chitalia Companies. It is the case of plaintiffs that they stand in the shoes of the Trustees in bankruptcy of the estates of Chitalia - Chitalia company. ( 7 ) THE present suit has been filed to recover the monies for the benefit of the Estates in Bankruptcy of the Chitalias/ Chitalia companies. The present suit was filed in view of the orders dated 8th March 2000 and 12th and 13th february 2002 passed by the United States bankruptcy Court, Middle District of Florida. The present suit is in respect of the very same transactions which were found to be entered into by the Chitalias, and for recovering the same amounts which had been found to be secreted away by the Chitalias and the Chitalia companies, as per the said orders of the Bankruptcy Court. ( 8 ) THE present suit comprises of six claims, which are also the subject matter of the motions before the Bankruptcy Court and the orders passed by the Bankruptcy Court, giving specific leave to the plaintiffs to adopt the above proceedings. The plaintiffs seek to recover the monies covered by the transactions in respect of each of the six claims. Plaintiffs also seek discovery and inspection, from the defendants, of all the dealings between the defendants and the Chitalias from 1st January 1991. In particular, the plaintiffs seek discovery and inspection, from the defendants, of all the papers and documents in respect of each of the said six claims. The six claims in the suit are as follows:- (1) U. S. $ 255,457. 21 - Allegedly transferred from EST Fibres Inc. In particular, the plaintiffs seek discovery and inspection, from the defendants, of all the papers and documents in respect of each of the said six claims. The six claims in the suit are as follows:- (1) U. S. $ 255,457. 21 - Allegedly transferred from EST Fibres Inc. to the defendant No. 2 (purportedly towards share capital of defendant No. 1, at the behest of defendant No. 2) (2) Rs. 2 Crores - allegedly transferred by the Chitalias to defendant no. 2 and 3 purportedly as fixed deposits; (3) DM 1,265,625 - deliberately secreted and kept with defendant No. 2/ defendant No. 10 in respect of the 15 sulzer Machine transaction with Modern suitings; (4) U. S. $ 125,000 - deliberately secreted and kept with defendant No. 2/ defendant No. 9 in respect of the 25 sulzer Machine transaction; (5) U. S. 144,825. 26 - deliberately secreted and kept with the defendant no. 2/ defendant No. 10 in respect of the yellow Crude Sulphur transaction; (6) Aggregate sum of U. S. $ 580,289-- allegedly transferred by the Chitalias to defendant No. 2 and Defendant No. 3 to 8 who are family members of defendant No. 2. ( 9 ) ITC Limited had obtained a judgement dated 16th February 1999 against the Chitalias and the Chitalia Companies in the District Court of New Jersey, U. S. A. in the sum of U. S. $ 15,102,853. 81. Prior thereto on 26th March 1998, u. S. Magistrate Ronald J. Hedges forwarded his report and recommendation containing his Findings of Fact and Conclusions of Law on the proceedings of the amended complaint jointly filed by ITC limited against the Chitalias. On 2nd July 1998, the U. S. District Judge having reviewed de novo the report and recommendation, inter alia, ordered that the report and recommendation is adopted as the opinion of the Court. ( 10 ) ON 23rd February 1999 just after the judgement, the Chitalias filed voluntary bankruptcy petitions under Chapter 7 of the bankruptcy Code praying to be discharged as bankrupts and also claiming exemptions in respect of some of their assets. The original judgement was passed against the Chitalias in the State of new Jersey, where they had all along resided and carried on their business. The original judgement was passed against the Chitalias in the State of new Jersey, where they had all along resided and carried on their business. However, the chitalias filed the bankruptcy petitions in the state of Florida, in view of the favourable environment in Florida for persons seeking protection under its bankruptcy laws. Thereafter, EST Fibres also filed a voluntary bankruptcy petition on 24th February 1999 under chapter 7 of the Bankruptcy Code. ITC Limited filed an involuntary bankruptcy petition against lokman Establishment on 4th June 1999. Notices under Chapter 7 of the Bankruptcy Code were issued in respect of the Chitalias and EST Fibres and an order under Chapter 7 was entered in respect of Lokman Establishment on 6th July 1999. The Trustees in Bankruptcy, on whose behalf this suit has been filed, were appointed. Upon such appointment, all assets of the Chitalias/ chitalia companies, stood vested in the Trustees, as the Estates in Bankruptcy. ( 11 ) ITC Limited filed objections to the chitalias claim for exemptions. On 8th April 1999, ITC Limited was authorised to examine the chitalias pursuant to Rule 2004 of the Federal rules of Bankruptcy. On 25th May 1999, ITC filed a complaint objecting to the Chitalias discharge pursuant to the provisions of the Bankruptcy code. ITC examined both the Chitalias in May 1999, and thereafter in November 1999. ITC completed the depositions on 19th November 1999. ( 12 ) PURSUANT to the disclosure made in the course of the said depositions, on 27th January 2000, ITC filed two Motions, one in the estate of devang Chitalia and the other in the estate of suresh Chitalia before bankruptcy court in florida. The motions were filed to pursue and recover the Chitalias intererst in the defendant no. 1, 2 and 3 on behalf of the Bankruptcy Estates and for the benefit of the creditors of the estate. The motions set out that the funds obtained from the defendants would be held subject to the orders of the Bankruptcy court for distribution of the funds. The Motions were filed pursuant to the disclosures made by the chitalias in the course of the bankruptcy proceedings. ( 13 ) THE bankruptcy court passed two orders dated 8th March 2000 and allowed the Motions filed by ITC Limited. The Motions were filed pursuant to the disclosures made by the chitalias in the course of the bankruptcy proceedings. ( 13 ) THE bankruptcy court passed two orders dated 8th March 2000 and allowed the Motions filed by ITC Limited. I. T. C. Limited applied to the Reserve Bank of India for the requisite permission to commence litigation in India and to incur legal expenses on behalf of the Estates of the Chitalias and the Chitalia companies. The reserve Bank of India granted permission by a letter dated 3rd August 2001. ( 14 ) ON 4th December 2001, ITC filed four supplemental motions before the Bankruptcy Court for leave to pursue and recover additional assets secreted away by the Chitalias and the Chitalia companies. These supplemental motions were filed on behalf of the Bankruptcy Estates and for the benefit of the creditors of the estate to pursue and recover the monies secreted away by the chitalias and Chitalia Companies. These supplemtal Motions were filed after a further review of the papers in the bankruptcy proceedings. The supplemtal motions record the actions of the Chitalias and the Chitalia companies to secrete monies away by entering into various transactions with the defendants with a view to park monies with the defendants. The details and particulars of the said transactions formed part of the supplemental motions, as also the relevant parts of the depositions of the chitalias. The Supplemental motions also contained the legal arguments based upon which the Trustees of the Bankruptcy Estates were entitled to seek and recover the funds transferred to the defendants. ( 15 ) THE Bankruptcy Court, vide its orders dated 12th February 2002 and 13th February 2002 allowed the said supplemental motions. The said orders record that no objections to the said supplemental motions were filed by the debtors, trustees or any party in interest. The said orders were passed after hearing the parties and after considering the facts and arguments made in the supplemental motions. The attorney of chitalias was served with the proceedings, attended the proceedings, and did not object to the orders being passed on the supplemental motions. ( 16 ) IT is in pursuance of the aforesaid orders and proceedings that the present suit has been filed and Mr. The attorney of chitalias was served with the proceedings, attended the proceedings, and did not object to the orders being passed on the supplemental motions. ( 16 ) IT is in pursuance of the aforesaid orders and proceedings that the present suit has been filed and Mr. Seervai submits that that after filing of this suit and an application being made for ad-interim orders in terms of Notice of motion No. 727 of 2002, this Court directed defendants to furnish on oath full and complete disclosure as regards the present status of the various amounts received by them. ( 17 ) MR. SEERVAI states that the order passed by this Court was communicated. Instead of complying with the same, the defendants flouted the said orders which compelled filing of subsequent motion. Notice of Motion No. 727 of 2002 was placed before this Court on 9th April 2002 and this Court observed that a prima facie case is made out of nexus between the assets of chitalia and the defendants and, therefore, ad-interim directions as prayed for in prayer clause (c-i) of the motion can be granted. ( 18 ) MR. SEERVAI submits that against above order which was ad-interim in nature, defendant nos. 2 to 6 and 8 to 10 filed appeals and the division Bench was pleased to reject the same. Under the garb of complying with the said order, these defendants sought extension of time but chose to file a special leave petition, which was dismissed by the Supreme Court on 10th May 2002. The application for extension of time to file affidavits of disclosure was also rejected by the supreme Court. According to Mr. Seervai, orders passed by the Division Bench and the Supreme court thus concluded the issue of maintainability of the suit as well as the notice of motion and power of the Court to grant interim relief. He submits that the conduct of defendants is such that at every stage, they avoid compliance with orders and directions of this Court. A very innocuous order of making disclosure of transactions and acts on oath has not been complied with which goes to show that the defendants have indeed assisted the parties to the bankruptcy proceedings in syphoning of monies and bringing them in India. ( 19 ) MR. A very innocuous order of making disclosure of transactions and acts on oath has not been complied with which goes to show that the defendants have indeed assisted the parties to the bankruptcy proceedings in syphoning of monies and bringing them in India. ( 19 ) MR. SEERVAI has taken me through the affidavits filed from time to time in support of the aforesaid propositions, claimwise. ( 20 ) MR. SEERVAI contends that as far as claim in respect of Sukhakarta is concerned, it arises out of a transfer by EST of an aggregate sum of u. S. $ 255,457. 21 (in two tranches of U. S. $ 200,000 and U. S. $ 55,457. 21 respectively) to the defendant No. 2, allegedly for the purchase of shares in the defendant No. 1 by the Chitalias. The transfers were effected at the instance and behest of the defendant No. 2. The shares were purchased in the names of Suresh Chitalia, Devang chitalia and defendant No. 12 (Devang Chitalias wife ). The purported investment was obviously nominal and sham. In fact, the said amounts have been parked with defendant No. 2, through defendant No. 1, to defraud the bankruptcy estates. Prior to the purported investment, defendant No. 1 had a paid up capital of only rs. 2000 and did no business. The shares were worthless and had a value of less than zero. Defendant No. 2 in his initial disclosure affidavits, quite characteristically, falsely denied that he had any thing to do with defendant no. 1. This false denial was obviously meant to distance himself from the moneys received by his company from the Chitalias. In their affidavit dated 13th August 2004 the plaintiffs conclusively established that defendant No. 1 was owned, controlled and managed by defendant No. 2 and his friends and associates. ( 21 ) MR. SEERVAI has taken me through the correspondence and other documents and contended that the entire transaction is a camouflage inasmuch as there is no question of any genuine purchase of shares of a defunct company. The entire investment is sham and bogus. ( 22 ) AS far as claim No. 2 is concerned, the same pertains to transfer by Suresh and Devang chitalia of Rs. 1 Crore each to defendant Nos. 2 and 3. Non repartriation undertakings in respect of this sum of Rs. The entire investment is sham and bogus. ( 22 ) AS far as claim No. 2 is concerned, the same pertains to transfer by Suresh and Devang chitalia of Rs. 1 Crore each to defendant Nos. 2 and 3. Non repartriation undertakings in respect of this sum of Rs. 2 Crores were requested by the defendant No. 2 and were sent by Suresh and Devang chitalia. These documents have been admitted by the defendants. ( 23 ) AS far as claim No. 3 is concerned, according to Mr. Seervai, the same arises thus:- est Fibers Inc (EST), which is one of the chitalia Companies, sold 15 Sulzer Machines to modern Suitings. EST opened a letter of credit in favour of the Italian supplier, one Tessitura innocenti e Nesi SPA (Tessitura), and paid tessitura the price of the goods supplied to modern. EST one of the Chitalia companies, in turn, were to be paid by Modern. The goods were received by Modern. Modern had to pay EST/the chitalias for the said goods. Modern has admittedly deposited Rs. 2 Crores with the defendant N0. 10 towards the purchase price of the goods. The said Rs. 2 Crores is part of the consideration receivable by EST/ the Chitalias in respect of the said 15 Sulzer machines. The said sum of Rs. 2 Crores is admittedly, till date, lying with the defendant No. 10. However, the defendants have falsely contended that the transaction was cancelled. Further, the defendants have stated that the said money is lying with the defendant No. 10 in trust for modern. The 15 Sulzer machines were supplied by est/the Chitalias to Modern. ( 24 ) AS far as claim No. 4 is concerned, mr. Seervai submits that this transaction deals with the sale of 25 Sulzer machines by the chitalias, through Exim to the defendant No. 9, for a sum of U. S. $125,000/ -. The said machines were delivered after the same were inspected on three separate occasions. Despite the goods being delivered after repeated inspections, the defendants have contended that the said machines were returned because they did not comply with certain electrical specifications. ( 25 ) THE fifth claim according to Mr. Seervai is that the Chitalias sold 2500 MT of yellow crude sulphur to the defendant No. 10 for U. S. $ 144,825. 26. The sulphur was admittedly received by the defendant No. 10. ( 25 ) THE fifth claim according to Mr. Seervai is that the Chitalias sold 2500 MT of yellow crude sulphur to the defendant No. 10 for U. S. $ 144,825. 26. The sulphur was admittedly received by the defendant No. 10. The defendant No. 10 has failed to make payment for the said sulphur to the Chitalias and continues to hold the said sum of U. S. $ 1,44,825. 26 for and on behalf of the chitalias. The defendant Nos. 2 and 10 came up with a false story that the sulphur transaction was cancelled because the sulphur was unusable. ( 26 ) THE last claim according to Mr. Seervai is foreign exchange gifts and FERA immunity scheme transfers. The Chitalias and Chitalia companies transferred an aggregate sum of U. S. $ 580,289 to the defendants. The defendants 2 to 6 have on their own admission, received USD 165,015 allegedly under the FERA immunity scheme and US $ 91,792 allegedly as Foreign Exchange gifts from chitalia companies. These are being sheltered by the said defendants. These monies vest in the plaintiffs and the plaintiffs are entitled to recover the same for the benefit of the estates in bankruptcy. The defendant No. 2 has received three sums of U. S. $ 100,000 each (aggregating to u. S. $ 300,000/-) It appears that this sum of u. S. $ 300,000 has been received by the defendant no. 2 in Zurich. This amount (which is a part of u. S. $ 580,289/-) is also liable to be recovered by the plaintiffs for the benefit of the estates in bankruptcy. ( 27 ) IN the light of the above, Mr. Seervai submits that the suit is a substantive suit filed for recovery of monies belonging to the estates of Chitalia and Chitalia companies. The suit seeks to recover monies which the Chitalias have sheltered with the defendants through a series of nominal, sham and bogus transactions. He submits that these monies at all time belonging to the chitalia/ chitalia companies now vest in the estates in bankruptcy of Chitalia/ Chitalia companies and that the defendants have no right, title or interest in them. He submits that the averments in this behalf are set out in paras 4, 40 to 42 based upon which prayers (b) to (e) are claimed. He submits that the averments in this behalf are set out in paras 4, 40 to 42 based upon which prayers (b) to (e) are claimed. He submits that to the extent that whereabouts of the monies covered by claims in the suit are not known, the suit seeks to pursue, trace and recover them. ( 28 ) HE submits that neither is the suit for execution nor is it purely an action for tracing. He submits that all contentions of defendants as regards maintainability of the proceedings are erroneous. He submits that as far as maintainability of the proceedings is concerned, this Court will have to proceed on the basis that the averments in the plaint are correct. The pleadings of plaintiffs, therefore, have to be accepted. He submits that the arguments of the defendants on demurer on this aspect cannot be accepted. ( 29 ) IN support of their submission that the suit is a substantive suit and is maintainable as such, the plaintiffs strongly rely upon the judgement of this Court in the case of rotopacking Materials Industry Vs. Ravinder kumar Chopra and Ors. , reported in 2003 (6) BOM c. R. 6. The fact situation in this case according to plaintiffs was in many respects similar to the present case. This Court while considering the nature of the suit filed, and whether it was maintainable, held that the suit was a substantive suit and was therefore clearly maintainable. This was, despite the fact that the plaintiffs had chosen to limit the duration of its injunction and also make it dependent upon the outcome of the English proceedings. This court also saw no difficulty in entertaining the proceedings despite the fact that the breach of trust emanated or commenced outside India and despite the fact that some or even all the parties involved therein resided outside India. Mr. Seervai, in support of his submissions strongly relies upon paras 31, 34, 38, 43, 47, 48, 63 and 64 of the said judgement. ( 30 ) THOUGH, the present case is not solely for purposes of tracing, it is submitted on the authority of the unreported judgement of this court in the case of Standard Chartered Bank Vs. A. K. Menon and Ors. in Miscellaneous Petition No. 27 of 1994, that even a suit filed solely for purposes of tracing would be maintainable as a substantive suit. A. K. Menon and Ors. in Miscellaneous Petition No. 27 of 1994, that even a suit filed solely for purposes of tracing would be maintainable as a substantive suit. This Court discussed the case law on tracing in paras 7 to 12 of the judgement. Significantly, this Court extensively refers to and strongly relies upon the judgement of the house of Lords in the case of Norwich Pharmacal co. and Ors. Vs. Commissioner of Customs and excise reported in 1973 (2) All E. R. 943 and the judgement of the Court of Appeal in the case of bankers Trust Co. Vs. Shapira and Ors. reported in 1980 (3) All E. R. 353 in support of its conclusion that an action simplicitor for discovery was maintainable. ( 31 ) MR. SEERVAI further submits that on the basis of the observations in the above unreported judgement, it is clear that the principles enunciated and applied by this Court are not restricted to the provisions of the Special courts Act. ( 32 ) THE approach of the Courts to new and modern problems that confront them has been adverted to in some detail by the Supreme Court in the case of M. V. AL Quamar Vs. Tsavliris salvage (International) Ltd. reported in A. I. R. 2000 S. C. 2826. The Supreme Court has dealt with this aspect in paras 49 to 55 of the judgement. ( 33 ) IT is submitted that the defendants are holding various amounts which are the subject matter of the suit, in a fiduciary capacity, for and on behalf of the respective Estates in bankruptcy. In this context the plaintiffs submit that the principles contained in Sections 23, 63, 66, 84, 86 and 88 of the Indian Trusts act, 1882 are relevant and apply to the defendants and to the monies held by the defendants in a fiduciary capacity for and on behalf of the respective Estates in Bankruptcy of the Chitalia/ Chitalia Companies. It is submitted on the basis of the case law cited that as the defendants hold the monies in a fiduciary capacity and in trust, the plaintiffs being the trustees in Bankruptcy of the respective Estates of the Chitalia/ Chitalia companies are entitled to recover the same, as also, where necessary, to maintain a tracing action against the defendants. ( 34 ) MR. ( 34 ) MR. SEERVAI submits that when the suit was instituted, the plaintiffs did not have information as to the full extent of the operation of Chitalia/ Chitalia companies and their dealings with the defendants. Only limited information was available. That is how, the plaint proceeds. According to Mr. Seervai, he submits that to the extent the information was not available disclosure orders were sought for from this Court and the same were granted. Pursuant to these orders between April 2002 and january 2005, the defendants filed 23 affidavits in all the notices of motions. However, piece-meal disclosure is made. He submits that submissions have been made on the basis of the affidavits and the disclosures made therein. Hence it is false to contend that the original case pleaded in the plaint has been changed in any manner. He submits that the case as pleaded now be taken into account along with averments in the plaint. He submits that all technical arguments canvassed on behalf of defendants withregard to the case set up in the pleadings of the plaintiffs ought to be rejected. He submits that this aspect is clear from the decision of this court rendered by learned Single Judge (H. L. Gokhale, J) in the case of M. Sreenivasulu reddy Vs. Kishore Chhabria and Ors. , reported in 1995 (5) Co. Law Journal 81. ( 35 ) MR. SEERVAI also places strong reliance upon a judgement in the case of Ei Ajou Vs. Dollar Land Holdings plc. reported in 1993 (3) all ER 717. ( 36 ) MR. SEERVAI then submits that as regards the three transactions, namely, of the purchase of Sukhakarta Shares, alleged gifts and the foreign remittances allegedly under the immunity scheme and the deposits of Rs. 2 Crores, the documentary record now before the Court clearly establishes that these transactions were in reality nothing but a devise of the Chitalias, with the active connivance and collusion of the defendants, to secrete their funds to India and park them with the defendants. The receipt of these monies by the defendants constitutes a case of both "knowing receipt" and "knowing assistance". The receipt of these monies by the defendants constitutes a case of both "knowing receipt" and "knowing assistance". ( 37 ) AS regards the other three transactions of 15 Sulzer Machines, 25 Sulzer machines and sale of yellow crude sulphus, it is submitted that there is more than adequate pleading in the plaint and in the subsequent affidavits filed in the several notices of motion which clearly shows fraudulent intent on the part of the defendants, in connivance and collusion with the Chitalias, to retain the monies in India thereby depriving the Estates in Bankruptcy of the Chitalias/ chitalia companies. Fraudulent intent to deprive the creditors of their monies is almost self evident, and certainly does not require more detailed or elaborate pleadings. ( 38 ) HE submits that there are no lacunaes inasmuch as alleged absence of declaration of invalidity of the 6th transaction in question would not be of any assistance. In any event, there is no question of plaintiffs having to seek such declaration or the suit and the motions failing allegedly on this count. All the three transactions are clearly bogus as demonstrated above. They are a nullity. They are void ab initio. For such transaction no declaration need be claimed. As far as other three transactions are concerned, he submits that the retention of monies in India by defendants on behalf of chitalia and for the benefit of Chitalias with the intent to defraud creditors in estate in bankruptcy is the impugned act. Therefore, there is no question of the plaintiffs having to seek declaration with regard to these three transactions as well. In any event, the prayers in the plaint are based upon comprehensive submissions and, therefore, it is not open for the defendants to raise any technical pleas. The same are clearly frivolous. ( 39 ) I will advert to the other submissions of mr. Seervai a little later, because they are raised mainly in rejoinder to the submissions of the defendants. ( 40 ) MR. The same are clearly frivolous. ( 39 ) I will advert to the other submissions of mr. Seervai a little later, because they are raised mainly in rejoinder to the submissions of the defendants. ( 40 ) MR. DWARKADAS, learned Senior Counsel appearing for defendants, on the other hand submits that in the present suit, the plaintiffs have prayed for various interlocutory reliefs against the defendants such as:- i) Disclosure of Assets and their whereabouts; ii) Disclosure of the documentation; iii) Orders for injunction; iv) Orders to deposit various amounts in Court; he submits that the claim is based upon the averments and contentions that Chitalias had fraudulently secreted their assets to India with a view to defeat recovery action against them in u. S. A. and that the monies transferred by chitalias are held in trust for and on behalf of the estate of Chitalias. Therefore, plaintiffs are not entitled to recover the same. ( 41 ) HE submits that the aforesaid is the basis of the fraud pleaded by the plaintiffs. However, he submits that plaintiffs have failed to furnish any particulars whatsoever with regard to the alleged fraud such as when it has taken place, who are the perpetrators, the time and place where it took place etc. He submits that the pleadings are vague and cryptic. The plaint is verified by an officer of the plaintiffs who admittedly has no knowledge of facts. ( 42 ) MOST importantly, it is contended that assuming whilst denying that the plaintiffs are entitled to act on behalf of trustees in bankruptcy proceedings, it is quite apparent from the U. S. Bankruptcy proceedings that there is no finding whatsoever rendered by the U. S. Bankruptcy court that the monies transferred to the defendants in India were either monies belonging to the Chitalias or that the Chitalias fraudulently transferred the same in order to evade recovery by their creditors. It is respectfully submitted that as in the case of insolvency proceedings or winding up proceedings which may be instituted in an Indian court against an Indian defendant/ respondent, it is solely the jurisdiction of insolvency/ bankruptcy court of the Country where the insolvency/ bankruptcy proceedings are taken, to exercise the power and/or jurisdiction to set aside any completed transfers on the ground of alleged fraud by the bankrupts/ insolvents. No such finding has been rendered by the U. S. bankruptcy court. No such finding has been rendered by the U. S. bankruptcy court. ( 43 ) WHETHER there has been any fraud by the chitalias in order to evade recovery by the creditors of Chitalias in the U. S. is a matter governed entirely by U. S. law. U. S. law being a foreign law is a question of fact, the case of fraud therefore as pleaded by the plaintiff cannot be determined under the Indian law. The plaintiffs have neither pleaded nor let in any evidence whatsoever on the question of facts namely, the U. S. law and on the contrary are attempting to have the transactions effected by chitalias and Exim set aside by applying Indian law, which it is respectfully submitted, is not permissible. ( 44 ) IN any event, as more particularly set out in the individual claims the plaintiffs have attempted to substitute a case of fraud in the affidavits filed in support of its various notice of motion, from the fraud as pleaded in the plaint. ( 45 ) IT is also submitted that a charge of fraud must exclude every hypothesis of good faith and honesty, as there is a presumption of honesty that weighs in favour of the person charged with fraud. Further, the standard of proof applicable to a charge of civil/ tortious fraud is a standard that is higher than the balance/ preponderance of probabilities standard applicable to civil cases generally. ( 46 ) AS far as the case on Trust and tracing action Mr. Dwarkadas submits that, at the outset, it is the case of the plaintiffs that the monies and assets which form the subject matter of the six claims represent the property and assets of the Chitalias and Chitalia companies and/or that they belong to the estate of the Chitalias. There is however no pleading in the plaint by which a relationship of trustee and beneficiary between the plaintiff and the Chitalia/ Chitalia companies can be established. The plaint proceeds on the assumption that Chitalias and chitalia companies owed a fiduciary duty to the plaintiffs in respect of the dealing between the plaintiffs and the Chitalias/chitalia companies. There is nothing to substantiate this erroneous assumption. The plaint proceeds on the assumption that Chitalias and chitalia companies owed a fiduciary duty to the plaintiffs in respect of the dealing between the plaintiffs and the Chitalias/chitalia companies. There is nothing to substantiate this erroneous assumption. ( 47 ) BY their very nature, the transactions which resulted in the default judgement have not and cannot be described as creating any relationship of trustee and beneficiary between the plaintiffs/ ITC Global Holdings Pte. Ltd. and the Chitalias/ Chitalia companies. On the contrary, the transactions, at the most create relationship of debtor and creditor between ITC/ itc Global Pte. Ltd. and the Chitalias. In fact it is not even the plaintiffs case either in the motion taken out in the bankruptcy proceedings or in the plaint that the transactions which formed the subject matter of the default judgement against the Chitalias/ chitalia companies were in the nature of trust or that the monies were impressed with the trust. If this be the position, the relationship of trustee and beneficiary could not and did not exist between the plaintiffs and Chitalias/ chitalia companies. In other words, the chitalias/ Chitalia companies did not owe any fiduciary duty whatsoever to the plaintiffs or to itc Global Pte. Ltd. at the time when the transaction between ITC and the Chitalias came to be entered into or at any stage whatsoever. ( 48 ) THE pleadings filed in the present suit also do not explain how or in what manner the defendants can be described as trustees and the plaintiffs as beneficiaries. In the absence of such pleading the question of seeking to recover and/or trace any monies in the hands of the defendants without first establishing the relationship of trustee and beneficiary between the plaintiffs and the defendants must result in dismissal of the suit. If the Chitalias owed no fiduciary duty to the plaintiffs or ITC Global pte. Ltd. , it can never be said that the defendants who admittedly have no privity of contract whatsoever with the plaintiffs could be said to owe any such fiduciary duty to the plaintiff. ( 49 ) MR. If the Chitalias owed no fiduciary duty to the plaintiffs or ITC Global pte. Ltd. , it can never be said that the defendants who admittedly have no privity of contract whatsoever with the plaintiffs could be said to owe any such fiduciary duty to the plaintiff. ( 49 ) MR. DWARKADAS submits that in the facts and circumstances of the present case a fiduciary duty could never arise as it is not even the case of plaintiffs that when they deal with Chitalias, the monies if any, which were owed by Chitalias were held by them in trust for plaintiffs. He submits that if this be the case, the defendants cannot be said to be holders of any monies of plaintiffs. However, each and every transaction which is the subject matter of Claim Nos. I to vi took place between 1991 and 1996 i. e. much prior to the plaintiffs being impleaded as a party to the plaint filed in U. S. District Court by ITC Global Pvt. Ltd. Therefore, ITC has no right to claim that the monies belonged to them or that these defendants hold them in Trust in the estate of Chitalias. In any event, this being purely commercial transaction, relationship between parties is that of a debtor and creditor and not of a Trustee and beneficiary. Inviting my attention to the details of the amounts received by defendants, Mr. Dwarkadas submits that the last amount received by defendants was in february 1994 whereas the first transaction in respect of which I. T. C. Ltd. filed complaint was in May 1992. ( 50 ) ALTERNATIVELY, Mr. Dwarkadas submits that even if the plaintiffs are entitled in these proceedings to impugn the transaction between chitalias and defendants, until and unless the plaintiffs plead and prove that there was any fraudulent intent on the part of the Chitalias or chitalia companies at the time when the transaction between them took place, the plaintiffs cannot succeed. He submits that there is no pleading in this behalf in the plaint. The intent cannot be established in this case. More so, when the transactions were entered into much prior to filing of the bankruptcy proceedings as also the claim filed by ITC against the chitalias. .