Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 306 (CAL)

Dinesh Viniyog Ltd. v. The Oriental Gas Co. Ltd.

2011-03-04

BHASKAR BHATTACHARYA, SAMBUDDHA CHAKRABARTI

body2011
JUDGMENT :- Bhaskar Bhattacharya, J. This appeal under Clause 15 of the Letters Patent is at the instance of a judgment-debtor and is directed against the order dated 17th March, 2009 passed by a learned Single Judge of this Court by which the learned Single Judge allowed an application for execution of a foreign award in terms of Section 44A of the Code of Civil Procedure after overruling the objection of the judgment-debtor that as the decree did not mention any provision of interest, the execution application for realization of interest was not maintainable. Being dissatisfied, the judgment-debtor has come up with the present appeal: The following facts are not in dispute: a) The decree-holder filed an execution application under Section 44A of the Code of Civil Procedure for execution of the order dated 12th March, 1998 passed by the Hon’ble Justice Ferris of the High Court of Justice, Chancery Division, Companies Court, United Kingdom in Case No. 009020 of 1990 against the appellant. b) The said application was opposed by the appellant thereby alleging that the application as framed was not maintainable in the absence of the required certified copy of the order of the English Court sought to be executed in the execution application. It was further contended that from the perusal of the execution application, it appeared that the decree-holder, in fact, realized more than their decretal dues by selling the shares belonging to the appellant and the decree-holders were trying to realize something more than what was actually decreed. c) On 25th March, 2008, the said execution application was taken up for hearing when the appellant before us raised a preliminary objection with regard to the maintainability of the said execution application on the ground of lack of proper certification of the order dated 12th March, 1998 passed by the English Court which is sought to be executed. d) By order dated July 2, 2008, a learned Single Judge of this Court upheld the aforesaid objection of the appellant that there was no proper certification of the order dated 12th March, 1998 passed by the English Court and consequently, granted time of three months to the decree holders to cure the defects by getting the endorsement as postulated by Order 71 Rule 13(4) of the Rules of Supreme Court, 1965. e) Pursuant to such direction, the decree-holder filed the order dated 12th March, 1998 along with copy of certificate. The appellant before us again raised objection that the true copy of the order dated 12th March, 1998 and the certificate submitted by the decree-holder were not the certified copy of the judgment under the appropriate laws of England which could be enforced in foreign countries. f) The said execution application was again taken up for hearing on January 15, 2009 and was concluded on January 21, 2009 and by order dated March 17, 2009, the learned Single Judge rejected the aforesaid contention of the appellant and directed that as regards the remaining assets mentioned in Annexures- ‘O’ & ‘P’ there should be an order in terms of prayer (a) of Column 10 of the Tabular Statement provided such assets are within the jurisdiction of this Court. Being dissatisfied, the judgment-debtor has come up with the present appeal: Mr. Mitra, the learned senior advocate appearing on behalf of the appellant, has, at the very outset, contended that the purported certificate and the true copy of the order dated 12th March, 1998 which were submitted by the decree-holder in the execution application on 18th December, 2008 before the learned Single Judge did not comply with the requirement of the provisions contained in the Rules of the Supreme Court, 1965 applicable in England and the provisions of the Code of Civil Procedure which is applicable in India. According to Mr. Mitra, the learned Single Judge erred in holding that the certificate contemplated under Order 71 Rule 13 (4) had been complied with and that the decree-holders were entitled to proceed with the execution application. Mr. Mitra next contended that the order dated 19th October, 1999 passed by Mr. Registrar Buckley imposing interest liability upon the judgment-debtors resulting in modification of the order dated March 12, 1998 passed by the Hon’ble Justice Ferris of the High Court of Justice, Chancery Division, Companies Court, United Kingdom was without jurisdiction, void and a nullity and as such, the decree-holders have no right to execute the said decree for realization of any amount from the judgment-debtor on account of interest. So far the first contention of Mr. Mitra is concerned, we do not find any substance in the contention of Mr. So far the first contention of Mr. Mitra is concerned, we do not find any substance in the contention of Mr. Mitra that the certificate and the true copy of the order dated 12th March, 1998 submitted by the decree-holders did not comply with the requirement of the provision of law. According to Section 44A of the Code of Civil Procedure where a certified copy of a 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. 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. According to sub-section (3) of the said Section, 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 the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13. By way of explanation, it is pointed out that the 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. In the case before us, we find that pursuant to the earlier order passed by the learned Single Judge, the certified copy of the decree and the certificate from the superior Court regarding extent of the decree has been filed. We, thus, find no substance in the first contention of Mr. Mitra. As regards the second contention as to whether interest can be levied on the amount of costs though not mentioned in the original decree, a lot of submissions were advanced before us. According to Mr. We, thus, find no substance in the first contention of Mr. Mitra. As regards the second contention as to whether interest can be levied on the amount of costs though not mentioned in the original decree, a lot of submissions were advanced before us. According to Mr. Mitra, in the decree there being no indication of imposition of interest on the costs, the present execution case for realization of interest was not maintainable. To the aforesaid question raised by Mr. Mitra, Mr. Banerjee, the learned counsel appearing on behalf of the decree-holder, has drawn our attention to the Judgments Act, 1838 and the provision contained in Section 17 thereof which is quoted below: “17. Judgment debts to carry interest (1) Every judgment debt shall carry interest at the rate of (8) pounds per centum per annum from [such time as shall be prescribed by rules of court] . . . until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment. (2) Rules of court may provide for the court to disallow all or part of any interest otherwise payable under sub-section (1)”. It appears that according to the said provision, every judgment debt should carry interest at the rate of 8 pounds per centum per annum from such time as may be prescribed by rules of Court until the same shall be satisfied and such interest may be levied under a writ of execution on such judgment. According to sub-section (2) Rules of Court provide for the Court to disallow all or part of any interest otherwise payable under sub-section (1). By referring to Rule 2, Mr. Mitra tried to convince us that in the absence any such Rule showing that in this case there was no scope of disallowing all or part of interest, we should not look into the said provision. We, however, find no justification in the aforesaid contention. If according to Mr. Mitra in this case, Rules of the Court provided for disallowing all or part of any interest payable under sub-section (1), it was for him to challenge the order of interest before appropriate forum but appellant not having raised such objection, the present Court being an executing Court is bound by the certificate which shows that interest has been levied. Mitra in this case, Rules of the Court provided for disallowing all or part of any interest payable under sub-section (1), it was for him to challenge the order of interest before appropriate forum but appellant not having raised such objection, the present Court being an executing Court is bound by the certificate which shows that interest has been levied. Moreover, no such Rule has been placed before us showing that there is any scope of disallowing any part of the interest payable under Sub-section (1) of Section 17. Moreover, it is rightly contended by Mr. Banerjee that the aforesaid certificate indicates that on the date of issue of such certificate, the amount mentioned therein was due and payable and it is not the case of the appellant that any part of such amount has been paid to the decree-holder. We, thus, find that the objections raised by the appellant in the execution proceeding were devoid of any substance and the learned Single Judge rightly turned down such objections and proceeded with the execution for realization of the amount mentioned in the decree and certificate. This appeal is, thus, devoid of any substance and is dismissed. In the facts and circumstances, there will be, however, no order as to costs.