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2014 DIGILAW 986 (KAR)

Bank of Baroda v. ING Vysya Bank Ltd. Formerly known as Vysya Bank Ltd.

2014-11-13

H.G.RAMESH

body2014
Judgment The revision is filed by the Bank of Baroda having its head office at Baroda and corporate office at Mumbai challenging the order passed by the 19th Addl. City Civil & Sessions Judge, Bangalore in Ex.No.1576/2009 dismissing the execution petition as barred by limitation. The decree holder is represented by the General Manager, Bank of Baroda. The Court of Justice Queens Bench of London passed a decree on 20th February, 1995 in favour of the decree holder bank against the respondent Bank for recovery of amount of about 12,78,909.26 US $ and cost of 1,80,867.15 pounds with interest at 8% per annum from the decree holder by the judgment debtor on account of the negotiation and discount by the decree holder of the letter of credit issued by the judgment debtor. After service of summons on the respondent, it has duly submitted to the jurisdiction of the learned court. Respondent judgment debtor failed to honour the decree and make payment due to the decree holder on account of the negotiation and discount by the decree holder of the letter of credit issued by the judgment debtor. The respondent failed to honour the decree and make payment due to the decree holder. After the judgment was pronounced, respondent judgment debtor placed an inter bank deposit of 1,40,000 US $ with the decree holder and requested not to put up the judgment into execution. After lapse of eight years, going back on the promises, the judgment debtor bank claimed the deposit back and filed an application for its recovery before the Debt Recovery Tribunal in OA 111/2003. The decree holder has raised the basic plea of jurisdiction on maintainability of such an action which is pending consideration in appeal before the Debt Recovery Appellate Tribunal, Chennai because the Debt Recovery Tribunal having denied to decide it as a preliminary issue and refusing the decree holders plea to amend the written statement, it is necessary that the decree should be executed against the judgment debtor by attaching the properties for recovery of the amount due to the decree holder. It is contended that the execution petition is filed within the period of limitation as limitation commences from the date of submission of the certified copy of the decree in the District Court. It is contended that the execution petition is filed within the period of limitation as limitation commences from the date of submission of the certified copy of the decree in the District Court. In support of his contention, counsel for the revision petitioner has referred to the Full Bench decision of the Madras High Court in the case of Sheik Ali Vs Sheik Mohammed - AIR 1967 Madras 45 wherein it is held that Limitation Act will apply in respect of execution of a decree passed by the foreign court from the date of deposit of the certified copy of the decree with the local district court under S.44 A of the CPC r/w O 21 R 3, CPC. The execution petition filed by the decree holder is for the recovery of amount of Rs.16,43,88,187.86 and also attachment of movables including inter bank deposit of US $ 14,00,000/- made by the judgment debtor with the decree holder from Mumbai Main Office. The Execution Petition filed on 5.8.2009 was assigned to the 19th Addl. City Civil Judge on 31.8.2009. The judgment debtor filed a counter to the Execution Petition 1576/2009 dated 11.10.2010. Execution Petition was dismissed by the Executing Court on the point of limitation on 20.7.2013. As per the respondent's counsel, there was no opportunity to the judgment debtor to appear before the Queens Bench Division, Court of London. The order was passed behind the back. The judgment is passed by the Queens Bench on 20.2.1995 whereas OS 358/1992 was disposed of by the III Addl. Civil Judge (Sr.Dvn.), Secunderabad on 31.12.2007 and this judgment was delivered subsequent to the judgment of the Queens Bench. Therefore, question of bringing it to the notice of the Queens Bench of the judgment in OS 358/1992 does not arise at all. The decree holder has not pleaded the filing of OS 358/1992 and its disposal by the Civil Judge (Sr.Dvn.), Secunderabad on 31.12.2007. The judgment delivered by the Queens Bench was the subject matter in OS 358/1992. Therefore, question of bringing it to the notice of the Queens Bench of the judgment in OS 358/1992 does not arise at all. The decree holder has not pleaded the filing of OS 358/1992 and its disposal by the Civil Judge (Sr.Dvn.), Secunderabad on 31.12.2007. The judgment delivered by the Queens Bench was the subject matter in OS 358/1992. As could be seen, the Letter of Credit bearing No. HYD/FLC/25/92 was the subject matter in OS 358/1992 wherein an order of temporary injunction is passed restraining defendants 1 and 3 - ING Vysya Bank and Bank of Baroda from making any payment to the 2nd defendant - M/s Granada Worldwide Investments Ltd. The said order of the Civil Judge (Sr.Dvn.) amounts to resjudicata since the Letter of Credit was already decided by the Queens Bench. The decree holder is not the holder in due course. The order if any, passed by the Queens Bench is in breach of Indian law and it is not conclusive as per S.13, CPC. The Execution Court referring to Art.136 and 137 of the Limitation Act and various judgments produced by both the parties has concluded that the judgment was passed by the Queens Bench on 20.2.1995 whereas certified copy of the judgment and decree is filed before this Court on 5.8.2009 after a lapse of fourteen years and also taking into consideration the plea of the judgment debtor and also the decree holder stating that execution petition had to be filed within twelve years from the date of decree or any subsequent order directing payment of money to be made, noting that payment was to be made immediately from the date of decree i.e., 20.2.1995 and it ought to have filed the execution petition within twelve years from the date of decree from 20.2.1995 and that the execution petition is filed after lapse of fourteen years seven months which is clearly barred by limitation, dismissed the execution petition. Hence, this revision. Heard the counsel representing the parties at length. The Division Bench of the Punjab & Haryana High Court in Case LPA 1/1967 between Lakpath Rai Sharma Vs Atma Singh, AIR 1971 P & H 476 in para 6 of the judgment has held referring to clause 5 of Art.182 and other provisions, the deeming provision under S.44 A of the Code do not leave any option with the Indian courts. The foreign decree has to be executed in India as if it had been passed by the District Court of India. The deeming provision must be extended to its logical end. That being so, the decree of the Singapore Court has to be treated for purposes of S.44 A, as a decree passed by the District Judge, Jullundur, on 22.9.1954. No step for execution of the decree and no step in aid for such execution having been taken by the appellant in any Indian court on or before September 22, 1957, the application filed in 1959 must be held to be barred by time and cannot possibly be allowed to be entertained. Accordingly, the execution petition filed was dismissed. The judgment of the Full Bench of the Madras High Court or the Division Bench judgment of the Punjab & Haryana High Court are only of persuasive value. S.44 A r/w S.13 of the Civil Procedure Court do provide for execution of a foreign decree. S.44 A on principle envisages the execution of decrees passed by Courts in reciprocating territory or there is an understanding between the Indian Courts and the UK Courts and it is being honored wherein a certified copy of the decree of UK Court could be executed in reciprocation by an Indian court as if it is passed by a District Court in India as per clause (1) of S.44 A. Clause (2) provides that a 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. Clause (2) envisages for the purpose of authenticity, the decree passed by the foreign court be treated as a decree of the Indian court for the purpose of enforcement and this authenticity does not envisage that it applies to any of the provisions under the Limitation Act. Clause (2) of S.44 A provides for only authenticity of the decree to be executed. Under clause (3), the provisions of S.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 S.13. The decree holder is required to put the decree into execution in the court which passed it. Option is given to the decree holder to execute the decree through the court which passed it or execute it wholly or partly through the competent District court in India. So far as reciprocity as provided under 44 A r/w S.13, CPC, the case on hand falls within one of the exceptions. Even assuming that the decree has to be executed as a matter of reciprocity, under the Indian Limitation Act which enlarges, the limitation provided to the decree holder to execute the decree is twelve years from the date of decree executed, obtained for the purpose of execution whereas under S.24 of the Limitation Act, 1980 of UK, the limitation is only six years. Even assuming that respecting the international obligation between the two countries advantage is given to be petitioner/decree holder to execute the decree in the Indian court and once when it is filed though it is after certification, since the decree passed in London Court also to be treated as a decree of the Indian Court, then the limitation also applies in the usual course and certification is also treated as a formality for authentication and nothing else. The decree has been passed during 1995 and during 2009 when it is put to execution before the Indian Court as is held by the trial court, it is barred by limitation. What is contemplated is, the decree holder ought to have approached the Indian court within a period of twelve years including obtaining of the certified copy or else time could have been excluded in filing the decree of the foreign court to the Indian court for the purpose of limitation and the period that has to be reckoned is that of the decree passed in London and the time taken to pass the certification for execution of the decree. In that view of the matter, excluding the period that would be spent for obtaining the decree would be the period to be reckoned for the purpose of implementation of the decree by way of execution. In the present case, as held by the execution court, the petition fails while confirming the order of the execution court. Ordered accordingly.