9911796707
TMI Blog2000 (9) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the impugned judgment dated 20h December, 1991. However, to mitigate the hardship to the appellant and as the respondent agreed to pay more sum, High Court directed the respondent to deposit a further sum of ₹ 1,00,000/- which was to be released to the appellant on giving possession of the suit property. The said sum was also deposited in the registry of the High Court by the respondent and it is being kept in interest bearing fixed deposit. The appellant has filed the present appeal and that is how the parties are We have heard learned senior counsel for the parties. Only contention urged before us by the iearned senior counse'lfor the appellant is that Instead of decree for specific porformance, compensation may be awarded. At the time of issuance of notice in the special leave petition, teamed senior counsel for the appellant offered to pay ₹ 1,16,000/- to the respondent to cancel the contract and get out of the decree. The respondent after his appearance before this court offered another sum of ₹ 50,000/- so as to make the total consideration of ₹ 1,50,000/-, In view of the above position leave was granted. When the matter came up before us anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices of real estate properties all over the country and in Delhi, inparticular in the last few years. In view of the above dear finding of the High Court that the appellant tried to wriggle out of the contract between the parties because of escalation in prices of real estate properties, we hold that the respondent is entitled to get a decree as he has not taken any undue or unfair advantage over the appellant. it will be inequitab!e and unjust at this point of time to deny the decree to the respondent after two courts below have decided in favour of the respondent. While coming to the above conclusion we have also taken note of the fact that the respondent deposited the balance of the consideration in the Trial Court and also the amount in the High court, as directed. On the other hand appellant as held by the High Court tried to wriggle out of the contract in view of the tremendous escalation of prices of real estate properties. However, to mitigate the hardship to the appellant we direct respondent to deposit a further sum of ₹ 3,00.000/- within 4 months from today with the registry of this Court and the amount shall be kept in Short Term Deposit in a nationalised bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the Admiralty Court's jurisdiction was invoked in England because the suit filed by Respondent No. I against Respondent No.2 was pertaining to the breach of salvage contract regarding Respondent No.2's ship H.V. Al Tabish which, on the date of the filing of the suit in English Admiralty Court, allegedly belonged to Respondent No.2. According to Mr. P. Chidambaram, learned senior counsel for the appellant, as no part of cause of action in this case had arisen in India and, especially within the local territorial limits of the Andhra Pradesh High Court, even though it may be acting as an Admiralty Court such a suit could not have been filed by Respondent No. I personally against Respondent No,2 in the Andhra Pradesh High Court. If that is so, the Andhra Pradesh High Court is not competent to execute such a decree even by resorting to the legal fiction created by Section 44-A by treating such a foreign decree of English Admiralty Court as if it was a decree passed by the Andhra Pradesh Admiralty Court, in order to buttress this contention Mr. P.Chidambaram, learned senior counsel for the appellant, gave an extreme example. He placed a hypothetical illustration for o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of any other competent Court in India and that is what Section 39(1) provides. The said section reads as under: 39. Transfer of decree.- (1) The Court which passed a decree may, on the application of the decree-holder, send It for execution to another Court of competent jurisdiction, (a) If the person against whom the decree Is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within lhe local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed 'it, or (d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. (2) The Court which passed a decree may of its own motion send t for execution to any subordinate Court of competent jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from these two distinguishing features and even proceeding on the lines as suggested by Mr. P.Chidambaram, learned senior counsel for the appellant, that in any case the District Court in India which is called upon to execute a foreign decree by treating it as if it was passed by itself should, in the first instance, be shown to be competent to pass such a decree, the result would be the same on the facts of the present case. It is no doubt true that the foreign decree, which is sought to be executed, is a money decree passed by the English Admiralty Court in favour of Respondent No. I against Respondent No.2. That decree is in personam for the simple reason that, at the time when the suit was filed in England, the res, namely, M.V. Al Tablish was not within the territorial waters of English Admiralty Court. Therefore, the plaintiff Respondent No. I had to sue only Respondent No.2 in personam for recovering damages for breach of salvage contract entered into between them. The said decree has become final between the parties. It is also axiomatic that if the res, namely, the vessel M,V. Al Tabish was available within the territorial waters of English Admiralty Court it would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have committed breach of salvage contract in connection with the sea-going vessel M.V. A/ Tabish which is a res and which by chance was found within the territorial waters of the port of Visakhapatnam in 1994. Such a 'res' would have admittedly remained within the original admiralty jurisdiction of the Andhra Pradesh High Court. Respondent No. I thus could have validly filed a suit praying for decree in rem against the vessel H.V. Al Tabish making it as Defendant No. I along with its owner Defendant No.2. What the English Court could do in connection with the suit validly filed on 11.10.1994 by Respondent No. I against Respondent No.2 would have been validly done by the Andhra Pradesh High Court if the vessel. Respondent No. I and Respondent No. 2 were all within the territorial admiralty Jurisdiction of the Andhra Pradesh High Court at that time. It is the case of Respondent No. I decree-holder that pending the said proceedings, illegally and by way of a fictitious transaction, the said vessel is alleged to have been transferred by Respondent No.2 infavour of M.V. Al Quamarsnd the ship's name is changed to H. V. Al Quamar form M.V. Al Tabish though in fact it still re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the executing stage when Section 44-A was invoked for executing a similar decree passed by competent superior Court in England in exercise of admiralty jurisdiction, such a decree could validly be executed by invoking the aid of corresponding Admiralty Court being the Andhra Pradesh High Court when the res was already within its jurisdiction. Consequently, even reading Section 39 (3) with Section 44-A, there is no from the L- ::nd'JSion that the time when execution petition was moved before the Andhra Pradesh High Court by even treating it as a transferee Court It can be said to be perfectly competent to entertain such a suit even in its inception against the ship as well as its alleged owner and to resolve the dispute between Respondent No.i and Respondent No.2. It has to be kept in view that if the ship in question which is arrested at Visakhapatnam had sailed out of the territorial waters of Andhra Pradesh then the Andhra Pradesh High Court would have lo.st its jurisdiction to entertain such a suit or the execution proceedings for executing the decree of foreign Court. But once it was within its territorial waters, the ship could havs been validiy subjected to such a suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the jurisdiction of the District Court, Agra. If he had, then the District Court, Agra could have entertained such a suit in the first instance. Neither the wrist-watch nor any other movable valuable properties of the .foreign judgment-debtor can be equated with a res covered by a maritime claim which can be validly subjected to adjudication for s decree in rem by s competent Admiralty Court within whose territorial jurisdiction the res is found to be available for being subjected to arrest and detention either pending such Admiralty suit or in execution of the decree passed by a competent Admiralty Court, whether ^ local or foreign, as the case may be, subject to such foreign court being a Court in reciprocal territory as laid down by Section 44-A of the C.P.C. The District Court, Agra could not have passed a decree in rem against wrist-watch or carpet treating it to be a res. Consequently, the apprehension voiced by Mr.P.Chidambaram, learned senior counsel for the appellant, about such extraordinary, unimaginable or hcrrendous situation v^ould remain nearly imaginary, it is only in the Vight of the present facts we hold that Section 44-A was rightly invoked by Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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