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TMI Blog2023 (10) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... s of judgement debtor in other countries. The judgements cited in the case of Mrs Shobha Vishwanatha [ 1996 (4) TMI 529 - MADRAS HIGH COURT ], Algemene Bank Netherland NV [ 1989 (12) TMI 271 - HIGH COURT OF BOMBAY] were in the context of FERA regime and therefore reliance by the counsel for the petitioner on these are misplaced. The conduct speaks volumes in the case i.e. how clearly after every attempt to stall the execution proceedings failed, did the petitioner, as an after thought, try to forestall the execution proceedings. There is no merit in the petition - Petition dismissed. Seeking a formal order staying further proceedings in the execution petition in view of deemed stay of further proceedings as per the provisions of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- As far as the IBC is concerned and with regard to the correctness of the order with regard to the currency of the interim moratorium, the preamble provides to complete the resolution in a time bound manner. Now coming to the question of constructive res-judicata as held in the case of Sarguja Transport Services [ 1986 (11) TMI 377 - SUPREME COURT] , that though the principles of res-judicata is not stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had agreed that if Gujarat (NRE) Coke Limited would not pay the liabilities by 31st December 2013, he would on first written demand, pay a sum equivalent to liability plus interest. Ultrabulk A/S demanded the sum of USD 4,259,395 plus interest under the personal guarantee. Mr. Jagatramka has failed to pay any part of that sum. As a result thereof, Ultrabulk A/S (the decree holder-respondent herein) instituted proceedings before the High Court of Justice, Queens' Bench, Commercial Court of London, U.K., against the petitioner - judgement debtor under the personal guarantee, by issuing a claim form. After exchange of pleadings, the English High Court on 09.11.2017, passed a foreign decree directing the judgement debtor to make payment of the amount as aforesaid in addition to accrued interest to the decree holder. 4.2 The decree holder instituted execution proceedings under Section 44A of the Code of Civil Procedure, 1908 (for short 'the CPC'), in relation to the foreign decree. On 07.05.2018, the petitioner judgment debtor filed application Exh. 11 resisting the execution of the foreign decree on the grounds that the foreign judgement was not conclusive since it had not been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is applicable to the facts and circumstances of the case. It was very much apparent that the petitioner could not issue any such personal guarantee as per the relevant provisions of Foreign Exchange Management (Guarantees) (Regulations), 2000 and Foreign Exchange Management Act (FEMA), 1999, without the specific approval / permission of the Reserve Bank of India. Reading the relevant regulations, Mr. Kavina would submit that since no specific prior approval was sought from or granted by the Reserve Bank of India before giving the guarantee, the respondent could not have enforced the personal guarantee. Accordingly, since the impugned foreign judgement and decree has been passed by refusing to recognize the law of India where the provisions of FEMA Act and the Regulations are applicable, the judgement and decree are not conclusive. 5.5 Assailing the foreign judgement in context of Section 13(d) of the CPC, Mr. Kavina would submit that the judgement has been obtained in violation of principles of natural justice. He would submit that it is evident from record that the judgement debtor-petitioner had requested for appearing through video conferencing on 30.10.2017 which was rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for a party. 6. Mr. Devang Nanavati, learned Senior Advocate appearing with Mr. Harsh Parekh, learned advocate for the respondent would make the following submissions: 6.1 That the Commercial Court at Jamnagar vide order dated 29.02.2020 rightly rejected the objections of the petitioner and held that the foreign decree is enforceable as a decree passed by the Trial Court under Section 44A of the Civil Procedure Code. 6.2 That the scope of examination of this Court is limited to the issue whether the petitioner-judgement debtor makes out any case on any of the grounds mentioned in sub-sections (a) to (f) of Section 13 of the CPC. He would submit that the decree has been obtained after following due judicial process and therefore the Executing Court cannot inquire into the validity, legality or otherwise of the judgement. 6.3 It is not open for the petitioner to raise a contention regarding the alleged professional misconduct of the decree holder's expert witness. Taking the Court to the timeline, Mr. Nanavati would submit that in accordance with the provisions of the procedural laws, an ex-parte legal opinion was invited from the counsel of Gujarat (NRE) Coke Limited. On 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention that the foreign decree wrongfully construed the personal guarantee as an on-demand bond. If, according to the petitioner, this was an erroneous application of law, there was a right to appeal and this was not a ground on which a foreign decree can be held to be inconclusive under Section 13(b) of the CPC. Reading Section 13(b) of CPC, he would submit that it was not a judgement which was not given on merits because the Court had applied its mind and considered the evidence available. He would invite the attention of the Court to para 3 of the foreign decree wherein consideration of evidence has been considered. In support of his submissions, Mr. Nanavati would rely on the following decisions: (I) In case of Vijay Karia and others v. Prysmian Cavi E Sistemi SRL and others reported in (2020) 11 SCC 1 (II) In case of SRM Exploration Pvt. Ltd. v. N & S & N Consultants S.R.O. reported in 2012 (129) DRJ 113 (DB) (III) In case of Videocon Industries Limited v. Intesa Sanpaolo S.P.A. reported in 2014 SCC OnLine Bom 1276 SCA NO. 18901 OF 2022 7. The prayer in this petition is to quash and set aside an order dated 06.09.2022 passed below Application Exh. 147 in Commercial Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 Mr. Kavina would submit that since the petitioner was contesting two applications under Sections 10 and 7 of the IBC relating to Gujarat (NRE) Coke Limited and Bharat (NRE) Coke Limited, the petitioner was under the bona-fide impression that the moratorium relating to personal insolvency proceedings will commence after admission of CP by the NCLT, Kolkata. The petitioner was unaware that unlike as in the case of Corporate Insolvency Resolution Process, wherein a moratorium under Section 14 of the IBC is declared only after the admission of the petition in case of Personal Insolvency Resolution Process an interim moratorium automatically kicks in on filing of a petition under Section 95 of the IBC. 8.4 Mr. Kavina would submit that the learned Trial Judge had reserved orders on application Exhs. 90, 92 and 94 on 18.09.2021. Since the order below Exh.94 was challenged by filing SCA No. 17965 of 2021 and the modified order was challenged by SLP which was dismissed from 07.03.2022, it was only thereafter that the present application was filed. 8.5 As far as challenge to the vires of the provisions relating to personal insolvency contained in IBC before the Calcutta High Court where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has obtained a stay order on 15.06.2022 from the Calcutta High Court. In these circumstances, the judgement cited by the learned advocate in the case of Stichting Doen-postcode Loterij (supra) will not apply. 9.6 The act of having elected to obtain an order from the Calcutta High Court amounts to blowing hot and cold. On the one hand, the petitioner is taking shelter under Section 96 of the IBC for not complying with the order of furnishing bank guarantee and on the other itself challenging the validity of the Code. 9.7 Referring to paras 6 to 11 of MCA No. 1 of 2022, Mr. Nanavati would submit that the petitioner relinquished his challenge and therefore the petition so filed would be barred by constructive res-judicata. 9.8 Mr. Nanavati would submit that if the conduct of the petitioner between 20.09.2021 and 10.03.2022 is seen, it is apparent that the petitioner waived his right. The interest of the petitioner is diametrically opposite to that of his creditors. Mr. Nanavati would submit that the judgement debtor petitioner is guilty of abuse of process of Court and is guilty of interference in the administration of justice. This Court in exercise of powers under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of this judgement, Section 13 of the CPC is reproduced as under: "Section 13. When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in [India]. 11. The Trial Court in rejecting the application held thus: (a) To the contention that the judgement and decree are not pronounced by a Court of competent jurisdiction, the Trial Court held that it was argued as per the relevant clause of personal guarantee, that the guarantee shall be governed exclusivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be conclusive an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case. When once these requirements are fulfilled, the executing Court cannot enquire into the validity, legality or otherwise of the judgment. 15. A glance on the enforcement on the foreign judgment, the position in common law is very clear that a foreign judgment which has become final and conclusive between the parties is not impeachable either on facts or law except on the limited grounds enumerated under section 13 CPC. In construing Section 13 CPC we have to look at the plain meaning of the words and expressions used therein and need not look at any other factors." (b) On the conclusion that the judgement failed to appropriate the amount already paid by the Gujarat NRE Coke Ltd and that the personal guarantee was defeated by the claimant's lawyer, the Trial Court based on the reasonings of the foreign judgement held that the personal guarantee of the petitioner was not coextensive with that of Gujarat NRE but an independent one which was therefore a primary responsibility of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is authority for the proposition that there is a presumption against construing an instrument as an on demand bond where it is not given by a bank or other financial institution (see Autoridad del Canal de Panama v Sacyr SA [2017] EWHC 2228 at paragraph 81(4) per Blair J.) there is no doubt, in my judgment, that the instrument signed by Mr. Jagatramka provided for an on demand bond and that if such demand was validly made Mr. Jagatramka was bound to pay "a sum equal to US$ 4,259,395", not such sum as Gujarat was in fact liable to pay at that time. The following parts of the guarantee lead to that conclusion: i) Mr. Jagatramka agreed to pay "a sum equivalent to" the "Gujarat Liabilities" which were defined as being US$ 4,259,395. Mr. Jagatramka did not agree to pay a sum of money to be determined by reference to Gujarat's actual liability at the material time. ii) He "unconditionally and irrevocably "guaranteed that if Gujarat did not pay the Gujarat Liabilities by 31 December 2013 he would, on demand, pay a sum equivalent to the Gujarat Liabilities. Such language is indicative of a primary liability. iii) He "irrevocably confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to going behind the decree. Once the Court has applied its mind and considered the evidence made available, it cannot be said that there was no adjudication on merits. Reading the foreign judgement indicates that it has considered the following evidence: "16.1 Oral evidence from Mr. Olesen, the Executive Vice President of the Decree Holder; 16.2 Oral evidence from Mr. Clulow, a partner at Reed Smith, the Decree Holder's Solicitors; 16.3 Witness statement of Mr. O'Neil, a former partner at Reed Smith; the Decree Holder's Solicitors; 16.4 Expert evidence of Indian law was adduced from Mr. Majumdar, an Indian lawyer, who gave evidence by video link from India; 16.5 Witness Statement of Mr. Saigal, a broker, who attended the negotiations leading to the Personal Guarantee/ On-Demand Bond with the Judgment Debtor; 16.6 The opinion rendered on Indian law by Ms. Batra on behalf of the Judgment Debtor; 17. It is pertinent to note that the Foreign Decree lists out the 7 defences which the Judgment Debtor seeks to take in relation to his liability under the Personal Guarantee/ On-Demand Bond and thereafter provides coherent reasons for rejecting such a defence." (c) On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before the English High Court, UK. 2 3rd Mar. 2017 English High Court, UK passes a directional order holding as follows: "4. Each party shall have permission to adduce expert evidence as follows: Expertise: Indian Law Issues to be covered: Those aspects of Indian law which are relied upon by the Defendant in support of his case that the Personal Guarantee is void and/or invalid and/or unenforceable. 5. Signed reports of experts of like disciplines shall be exchanged simultaneously by 4 PM on 27 March 2017. 6. Experts of like disciplines shall hold discussions for the purpose of identifying the issues between them and shall prepare a joint written statement by 4 PM on 10 April 2017 identifying the issues (if any) on which they disagree and a brief summary of the reasons for their disagreement." 3 27th Mar. 2017 Expert Witness Report on Indian law prepared by one Mr. Amitava Majumdar, Partner of Bose & Mitra & Co ("Decree Holders Expert Witness") in the form of Letter dated 27th March 2017 placed by the Decree Holder before the English High Court, UK which inter alia stated in paragraph 6: "6. At the outset, I would like to disclose the fact that I have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as a litigant in person." 8 30th 2017 Oct Hearing before the English High Court, UK during which the examination in chief of the Decree Holder's expert witness on Indian law, Mr. Amitava Majumdar had taken place by video conference wherein the judgment of the Bombay High Court in the case of POL India Projects Limited v. Aurelia Reederi Eugern Friederich, Arbitration Petition No. 76 of 2012 was discussed, the examination in chief of the Decree Holder's witness of fact Mr. Hans Christian Olesen had taken place, the examination in chief of the solicitor of the Decree Holder Mr. Jeb Anthony Clulow also took place. (f) The Civil Procedure Rules, 1998 of Supreme Court of England and Wales County Courts, particularly Rule 35 (Rule 35.1 to 35.7 and 35.10 to 35.11 and 35.13) read as under: "Duty to restrict expert evidence 35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings. Interpretation 35.2 A reference to an "expert" in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings. Experts--overriding duty to the court 35.3-- (1) It is the duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties wishing to submit the expert evidence are called "the instructing parties". (3) Where the instructing parties cannot agree who should be the expert, the court may--direct that the expert be selected in such other manner as the court may direct Contents of report 35.10--(1)An expert's report must comply with the requirements set out in the relevant practice direction. (2) At the end of an expert's report there must be a statement that-- (a) the expert understands his duty to the court; and (b) he has complied with that duty (3) The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written. (4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions-- (a) order disclosure of any specific document; or (b) permit any questioning in court, other than by the party who instructed the expert unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete. unless it is satisfied that there are reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the points which they agree and/or disagree but Ms. Batra informed the decree holder's witness that she had no instructions. What is also evident from reading the CPR especially Clause 35.2 that unlike the submission of Shri Kavina citing instance of advocates of parties appearing as witnesses, this was a case where the concerned person is examined in the role of an expert to advance and assist the Court which does not possess the relevant skill and experience in determining where the truth lies. (h) On the contention that the English Court while passing the Foreign Decree failed to interpret the provisions of the Foreign Exchange Management Act (FEMA) and the regulations and hence the findings were on the face of the proceedings to be founded on an incorrect view, the Foreign Court on interpretation of the Regulations held as under: "Issue II (d) Would the guarantee be invalid if both sides were aware that the guarantor did not have approvals? 31. As stated earlier the requisite approvals can be obtained from by the Guarantor from the RBI even after the guarantee has been issued per Life Insurance Corporation of India Vs. Escorts Ltd. (1986) 1 SCC 264 as followed in Vitol S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India such foreign exchange, and shall in no case do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing - (a) that the receipt by him of the whole or part of that foreign exchange is delayed; or (b) that the foreign exchange ceases in whole or in part to be receivable by him. 34. I am of the opinion that the aforesaid provisions may perhaps have extremely limited application in situations of a transaction entered into by an Indian party with a foreign party outside India which although does not have the effect of repatriating foreign exchange out of India creates an impediment to foreign exchange being repatriated into India. That said, the Bombay High Court in the case of Vitol S.A. v. Bhatia International Limited, (2015) 1 Bom CR 100 in its interpretation of section 8 of FEMA Act and Notification No. FEMA 9/2000-RB dated 3 May 2000 expressed the opinion that these provisions would only be triggered when Indian citizens/company stash funds out of India or secrete or divert foreign exchange payable to the Indian citizen/ company." (i) Reading the aforesaid extract indicates that in the context of the opinion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign award is against the public policy of India as the necessary FEMA permission has not been obtained. In its judgment in that case the Bombay High Court made the below observation: "13...It is clear from the above quoted paragraphs of the judgment of the Supreme Court that an award cannot be set aside because at the time of entering into the contract, permission of the Reserve Bank of India was not obtained. If such a permission is necessary, it can be obtained by the party concerned before he receives actual payment. The contention, therefore, has no force and is, therefore, rejected. I have not been pointed out any law which prevents the arbitral tribunal from making an award for payment of money to a foreigner pursuant to a contract, which has not been approved by the R.B.I. In the absence of any such provision, no fault can be found with the award on this count." 23. This point was also made by the High Court at Goa in the case of SJJ Marine Pte Ltd v. Pisces Exim (India) Private Limited, Company Petition No. 10 of 2013 and by the Division Bench (Appeal Court) of the Bombay High Court in the case of Videocon Industries v. Intesa Sanpaolo SPA (Appeal (L) No. 29 of 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrict the role of India in such international commercial transactions. I am in respectful agreement with the views expressed by the Delhi High Court. In my view the petitioner not having raised any objection about the validity and enforcement of such guarantee at any point of time before filing objection before the learned arbitrator and had acted upon such guarantee, if such objection is allowed to be raised at such belated stage, it will be contrary to the principles laid down by the Supreme Court and by Delhi High Court. I am thus not inclined to accept this submission of the learned counsel for the petitioner." (l) The Division Bench of the Delhi High Court in the case of SRM Exploration (supra) in Para 12 observed as under: "12. We have perused the provisions of FEMA, 1999 Section 3 thereof prohibits dealing in or transferring of any foreign exchange save as otherwise provided therein or under the Rules & Regulations framed thereunder without general or special permission of RBI. We are unable to find any provision therein voiding the transactions in contravention thereof. We may mention that the predecessor legislation to FEMA namely FERA 1973 vide Section 47 prohibite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erce. We could not agree less." (n) Even the Hon'ble Supreme Court in the case of Vijay Karia and others (supra) held that transactions in FERA would render a transaction void in absence of following the provisions but such violation under the FEMA would not render the transaction void. "87. Before answering this question, it is important to first advert to the decision of the Delhi High Court in Cruz (supra). The learned Single Judge was faced with a similar problem of a foreign award violating the provisions of FEMA. In an exhaustive analysis, the learned Single Judge referred to Renusagar (supra) and then held: 102. Although, this contention appears attractive, however, fails to take into account that there has been a material change in the fundamental policy of exchange control as enacted under FERA and as now contemplated under FEMA. FERA was enacted at the time when the India's economy was a closed economy and the accent was to conserve foreign exchange by effectively prohibiting transactions in foreign exchange unless permitted. As pointed out by the Supreme Court in Life Insurance Corporation of India v. Escorts Ltd. (supra), the object of FERA was to ensure that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of a country needs no emphasis. FEMA regulates the foreign exchange. The conservation and augmentation of foreign exchange continue to be its important theme. Although contravention of its provisions is not regarded as a criminal offence, yet it is an illegal activity jeopardising the very economic fabric of the country. For violation of foreign exchange regulations, penalty can be levied and its non- compliance results in civil imprisonment of the defaulter. The whole intent and idea behind COFEPOSA is to prevent violation of foreign exchange regulations or smuggling activities which have serious and deleterious effect on national economy." It is important to note that this Court recognized that FEMA, unlike FERA, does not have any provision for prosecution and punishment like that contained in Section 56 of FERA. The observations as to conservation and/or augmentation of foreign exchange, so far as FEMA is concerned, were made in the context of preventive detention of persons who violate foreign exchange regulations. The Court was careful to note that any illegal activity which jeopardises the economic fabric of the country, which includes smuggling activities relating to for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee and the judgement of the English Court having become final, only with a view to throw a spanner and delay the proceedings, execution petition is filed which is nothing but an abuse of the process of the Court. Para 14 of the order reads as under: "14. The learned Commercial Court at Rajkot, while dealing with application at exhibit 19, has threadbare considered the same and has correctly interpreted the provisions of the Act as well as the provisions of section 126 of the Indian Contract Act in particular. It would not be out of place to record that having participated in the proceedings before the English Commercial Court, having given a guarantee and the judgment of English Court having become final, only with a view to throw spanner in the execution of such decree, the present petition is filed only with a view to create hurdle and delay the execution proceedings, which is nothing but an abuse of the process of the Court. We confirm the findings of the Court below and the Commercial Court having jurisdiction, has jurisdiction to entertain the execution petition filed by the respondent. The petition is devoid of any merits and the same is liable to be dismissed and is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejected the application. The relevant paras of the trial court's order dated 09.03.2022 read as under: "28.1 Attention is drawn to relevant dates in the proceedings and it is submitted that of its 08th September, 2021 The State Bank of India instituted before personal bankruptcy proceedings against the Judgment Debtor before the NCLT, Kolkata Bench under Chapter III of the Insolvency and Bankruptcy Code; On 14th September 2021 the NCLT, Kolkata Bench had formally registered the personal bankruptcy proceedings filed by the State Bank of India against the Judgment Debtor as CP(IB) No. 266 of 2021 (hereinafter "NCLT Personal Bankruptcy Proceedings"); on 20th September the Judgment Debtor had filed IA (IB) 287/KB in the NCLT Personal Bankruptcy Proceedings seeking an interim order of stay of the NCLT Personal Bankruptcy Proceedings and a final order of dismissal of the NCLT Personal Bankruptcy Proceedings. The Decree Holder claims that under the circumstances the Judgment Debtor cannot feign ignorance of the pendency of the NCLT Personal Bankruptcy Proceedings after 20th September 2021. 28.2 On 04th October 2021, this Court pronounced its judgment in Exh. 90, 92 & 94. The Decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de. 28.6 On 31st October 2021, the Judgment Debtor has filed an Affidavit in support of the Exh. 136 wherein the Judgment Debtor made outrageous and preposterous alligations against the Ld. Presiding Officer of this Hon'ble Court and requested her to recuse herself from hearing the case. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20th September 2021 and as on 31st October 2021 the Judgment Debtor did not seek stay of the proceedings on the ground under Section 96 of the Insolvency and Bankruptcy Code but wanted to prosecute its case before an alternative presiding officer of this Court. 28.7 On 01st November 2021, the Judgment Debtor has filed written submissions before this Court in relation to the Fourth Round of the challenge to the jurisdiction of this Hon'ble Court in Exh. 111 Application. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20th September 2021, the Judgment Debtor on 01st November 2021 chose not to raise the contention of the purported bar of the jurisdiction of this Court in light of Section 96 of the Insolvency and Bankruptcy Code. 28.8 On 13th December 2021, the Judgment Debtor has filed a Writ Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 20th September 2021 and between 20th September 2021 to 27th December 2021 did not seek stay of the proceedings on the ground under Section 96 of the Insolvency and Bankruptcy Code but wanted to prosecute its case before an alternative presiding officer of this Court. 29.2 On 03rd February 2022, the final hearing of SCA No. 17399/2021 had taken placed before the Hon'ble Gujarat High Court in relation to the jurisdiction of this Hon'ble Court to entertain the present execution proceedings. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20th September 2021, the Judgment Debtor on 03rd February 2021 chose not to raise the contention of the purported bar of the jurisdiction of this Court to take further steps in the instant Execution Proceedings in light of Section 96 of the Insolvency and Bankruptcy Code. 29.3 On 04th February 2022, the Hon'ble Gujarat High Court dismissed SCA No. 17399/2021 in relation to the appeal against order dated 04th August 2021 in Exh. 65 passed by this Court by holding that this Hon'ble Court has jurisdiction to entertain the present execution proceedings by making the below observations on the conduct of the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the petitioner within a period of one week with this Hon'ble Court Legal Services Committee. The Supreme Court of India in order dated 29th September 2020 in SLP (Civil) No. 11689/2020 whilst examining an appeal against the order dated 26th August 2019 of the Gujarat High Court in SCA No. 8334/2019 refused to disturb any finding of fact or conclusion of law in the order of the Gujarat High Court. 30.1 The Second Round being application at Exh. 45 which was dismissed the Trial Court vide order dated 29th February 2020 dismissed the same and appeal against the same is pending before the Hon'ble Gujarat High Court in SCA No.5509 of 2021. 30.2 The Third Round application at Exh.65 which is dismissed by the Trial Court vide order dated 04th August 2021. The Hon'ble Gujarat High Court dismissed SCA No. 17399/2021 in relation to the appeal against order dated 04th August 2021 in Exh.65 passed by this Court by holding that this Court has jurisdiction to entertain the present execution proceedings and made observations on the conduct of the Judgment Debtor. 30. 3.The Fourth Round being at Exh. 111 which is dismissed by the Trial Court vide order dated 27th December 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of the Trial Court. It is pertinent to note that despite knowing of the NCLT Personal Insolvency proceedings prior to 20th September 2021, the Judgement Debtor chose not to bring to the attention of the Trial Court, the purported bar of the jurisdiction of the Trial Court considering section 96 of the IBC. * On 27th December 2021 - Trial Court dismisses Exhibit 136 i.e., Judgment Debtor's application for recusal of the Learned Presiding Officer. * 4th February 2022 - This Hon'ble Court dismissed SCA No. 17965/2021 filed by the Judgment Debtor against the Trial Court's order dated 4th October 2021 in Exhibit 94 directing the Judgment Debtor to deposit a sum of Rs. 12,89,19,458. * On 4th February 2022 - An order was passed by this Hon'ble Court dismissing SCA No. 17399/2021 i.e., Third Round challenging the jurisdiction of the Trial Court filed by the Judgment Debtor against the Trial Courts order dated 4th August 2021 in Exhibit 65 holding that the Trial Court has jurisdiction to entertain the present execution proceedings. * On 7th March 2022 - Order of the Supreme Court of India dismissing SLP (Civil) No. 3300 of 2022 against this Court's order dated 4th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority may give such directions for consolidating the proceedings under the applications as it thinks just. (4) An application under sub-section (1) shall be accompanied with details and documents relating to-- (a) the debts owed by the debtor to the creditor or creditors submitting the application for insolvency resolution process as on the date of application; (b) the failure by the debtor to pay the debt within a period of fourteen days of the service of the notice of demand; and (c) relevant evidence of such default or nonrepayment of debt. (5) The creditor shall also provide a copy of the application made under sub-section (1) to the debtor. (6) The application referred to in sub-section (1) shall be in such form and manner and accompanied by such fee as may be prescribed. (7) The details and documents required to be submitted under sub-section (4) shall be such as may be specified. Section 96. (1) When an application is filed under section 94 or section 95-- (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for the replacement of the such resolution professional. (2) The Adjudicating Authority shall within seven days of the receipt of the application under sub-section (1) make a reference to the Board for replacement of the resolution professional. (3) The Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (2), recommend the name of the resolution professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. (4) Without prejudice to the provisions contained in sub-section (1), the creditors may apply to the Adjudicating Authority for replacement of the resolution professional where it has been decided in the meeting of the creditors, to replace the resolution professional with a new resolution professional for implementation of the repayment plan. (5) Where the Adjudicating Authority admits an application made under sub-section (1) or sub-section (4), it shall direct the Board to confirm that there are no disciplinary proceedings pending against the proposed resolution professional. (6) The Board shall send a communication within ten days of receipt of the direction under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation and given explanation sought by the resolution professional under sub-section (4). (7) After examination of the application under sub-section (6), he may recommend acceptance or rejection of the application in his report. (8) Where the resolution professional finds that the debtor is eligible for a fresh start under Chapter II, the resolution professional shall submit a report recommending that the application by the debtor under section 94 be treated as an application under section 81 by the Adjudicating Authority. (9) The resolution professional shall record the reasons for recommending the acceptance or rejection of the application in the report under subsection (7). (10) The resolution professional shall give a copy of the report under subsection (7) to the debtor or the creditor, as the case may be. Submission of report by resolution professional. Section 100. (1) The Adjudicating Authority shall, within fourteen days from the date of submission of the report under section 99 pass an order either admitting or rejecting the application referred to in section 94 or 95, as the case may be. (2) Where the Adjudicating Authority admits an application under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign Decree, and after SBI filed CP(IB) No. 266/2021, the petitioner himself on 20.09.2021 filed IA No. (IBC) 872(KB) 2021 before the NCLT, Kolkatta seeking dismissal of the personal insolvency proceedings filed against him. 26. On 04.10.2021, in an application preferred by the respondent decree holder for security under Order XXI, Rule 40(b) of the Code of Civil Procedure, the Trial Court allowed the application and held that pending the conclusion of the inquiry of whether the judgement debtor has or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the amount of the decree, the judgement debtor is directed to furnish security in the sum of Rs. 12,89,19,458/- by way of cash deposit with the registry of the Trial Court within six weeks from the date of the order. Prior thereto, the Trial Court, on 04.08.2021, on an application Exh.65 of the judgement debtor with a prayer to hold that the executing court has no jurisdiction to entertain the application was rejected. Against the order dated 04.08.2021, Special Civil Application No. 17399 of 2021 was filed by the petitioner. This Court, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by the court which passed it or by the court to which it is sent for execution. The section provides for jurisdiction of execution to be the same court which passed the decree. 6.5 In the present case, it is the money decree passed by England Commercial Court upon adjudication of commercial dispute and now sought to be executed under Section 44A which is deemed in law to be the decree as if it has been passed by district court. Upon conjoint reading of Section 44A and Section 38 CPC, it could be certainly deduced that the decree passed by the English Commercial Court can be executed by the commercial court when presented under Section 44A of the CPC. It becomes a decree as if it has been passed by district court. It would be only proper to read the word 'the Commercial Court' which had passed the decree in Section 44A CPC in place of the word 'District Court', when it is a decree passed by foreign court - the reciprocating territory, and sought to be executed. 6.6 When the execution is filed from the decree of commercial court, the 'commercial dispute' continues to exists. In the execution proceedings initiated to execute the decree of the commercial court, the characteristi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in context of proceedings which are a subject matter of Special Civil Application No. 17399 of 2021. No move at this stage was also made by the petitioner till 20.10.2021 i.e. one month after filing of CP(IB) No. 266/2023 to seek a stay of the proceedings invoking grounds under Section 96 of the IBC. 28. Even when the order dated 04.10.2021 at Exh. 94 was passed whereby the debtor was directed to deposit a sum of Rs. 12,89,19,458/- and on 29.10.2021 that order was challenged by filing Special Civil Application No. 17965 of 2021, the judgement debtor raised no contention that he was not required to deposit the said amount in the Court on the ground of Section 96 of the IBC. On the very date, i.e. on 04.02.2022, when the judgement debtor's petition to challenge Exh. 65 order was dismissed, this Court also dismissed the petition modifying the order of the Trial Court by allowing the judgement debtor to furnish a bank guarantee in substitution of cash deposit. On the conduct of the petitioner, the Court, in paras 5.6 to 7 observed as under: "5.6 The Court below observed about the conduct of the judgment-debtor, "The extent to which the judgment-debtor has gone is also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Registry of this Court. The direction to furnish the security by way of cash deposit is in a way arbitrary in as much as requiring deposit of cash to the above extent would not be cumbersome but also unreasonable. The security to the aforesaid sum could be solicited by directing the judgment-debtor to furnish the bank guarantee of the equivalent amount. The impugned order is required to be interfered with to be modified to the said and such limited extent. 6.1 As a result, while maintaining the impugned order as well as the reasons supplied by the Court in so far it requires the judgment-debtor to furnish security, the direction in the order is modified to the limited extent that the judgment debtor petitioner herein may furnish the security for the sum of Rs. 12,89,19,458/by way of bank guarantee equal to the said amount. 7. The present Special Civil Application is dismissed subject to modification in the order to the above extent." 29. Even in para 5.2 of the order in Special Civil Application No. 17399 of 2021, the Court observed that it is depreciable that despite the above findings of the Division Bench, the very ground is raised and re-raised in yet another proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove such an application. Noteworthy too is that the petitioner on 15.06.2022 obtained a stay from Calcutta High Court staying personal insolvency proceedings. The conduct speaks volumes in the case i.e. how clearly after every attempt to stall the execution proceedings failed, did the petitioner, as an after thought, try to forestall the execution proceedings. The observations of the Trial Court, in an application filed at Exh. 136 for recusal of the learned Presiding Officer, are worth mentioning. "26. ....... As discussed earlier, the history ofthe case as narrated hereinabove goes to suggest that the Judgment Debtor has been Written Submissions of the Decree Holder in insincere even in the proceedings before the English Court. It appears that such tendencies and practices attempted by litigants to threaten and intermediate the court in order to dissuade the Presiding Officers of the courts from hearing the matters as in the present one are because of the illusion that they are going to miss some mundane pleasure and keep on hankering after it. The oath of the office which mandates to perform duties to the best of the ability without fear or favour, affection or ill- will requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of insolvency proceedings and then seeking to re-argue the grounds raised in MCA No. 1 of 2022 which he withdrew. The grounds seeking modification of this Court's order dated 04.02.2022 in Special Civil Application No. 17965 of 2021 read as under:- "6. In view of the aforesaid provisions contained in Section 95 and 96 of the IBC, an interim moratorium has commenced from 08-- 09-2021, i.e., the date of filing of CP (IB) 266/2021 before the NCLT, Kolkata by SBI and was operating on 04-10-2021 and 04-022022 when orders below Exh. 94 and in SCA No. 17965 of 2021 were passed by the Trial Court and this Hon'ble Court, respectively; since the aforesaid proceedings was pending for admission on that day and, accordingly, there was a specific bar by deeming fiction relating to continuation of any legal action or proceeding pending in respect of any debt of the application and initiation and/or continuation of any proceedings in respect of any debt was deemed to have been stayed." 7. In addition to the above, it is also submitted that Section 238 of the IBC provides that the provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Process, wherein as per Section 14 of the IB Code, 2016, a moratorium is declared by the Adjudicating Authority only after admission of a petition filed under the aforesaid sections., he was under a bonafide impression/ belief that a moratorium relating to personal insolvency proceedings would also come into force only after admission of CP (IB) No.266 of 2021 by the NCLT, Kolkata filed by SBI against him. As such, the applicant continued to contest various proceedings initiated by the respondent against him in Execution Petition No. 161 of 2019, being completely unaware of the interpretation of Section 96 (1) (b)(i) of the IB Code, 2016 which provides for an automatic moratorium over all legal actions or proceedings pending in respect of any debt due to the petitioner on filing of such application under section 95(1) of the IB Code. Accordingly, the applicant was unaware unlike as in the case of a Corporate Insolvency Resolution Process wherein a moratorium under Section 14 of the IB Code is declared only after admission of a petition under Section 7 or 9 or 10 of the IB Code, in case of Personal Insolvency Resolution Process, an interim moratorium automatically kicks in on fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings shall mandatorily follow the below mentioned directions: 1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third 2. party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties. 3. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property. 4. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit. 5. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter. 6. The Court must, before passing the decree, pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o equity, however, it must not be applied in a number as to violate the principles of right and good conscience. (Vide Nagubhai Ammal V. B. Sharma Rao, CIT V. V.MR.P. Firm Muar, Maharashtra SRTC V. Balwant Regular Motor Service, P.R. Deshpande V. Maruti Balaram Haibatti, Babu Ram V. Indra Pal Singh, NTPC Ltd. V. Reshmi Constructions, Builders & Contractors, Ramesh Chandra Sankla V. Vikram Cement and Pradeep Oil Corpn. V. MCD.) 35. Thus, it is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had." 39. Now coming to the question of constructive res-judicata as held in the case of Sarguja Transport Services (supra), that though the principles of res-judicata is not strictly applicable to writ petitions under Article 227 of the Constitution of India, the legal principles underlying Order XXIII, Rule 1(4)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court. 8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petition- er prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open." 40. In the case of Forward Construction (supra), the law as regard to constructive res-judicata was discussed as under: "20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f constructive res judicata apply not only to what is actually adjudicated or determined in a case but every other matter which the parties might and ought to have litigated or which was incidental to or essentially connected with the subject-matter of the litigation. This Court observed; "35. …an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Civil Procedure Code was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata. 24. It is in the light of the above authoritative decisions of this Court no longer open to the appellants to contend that the principles of constructive res judicata would not debar them from raising the question which, as observed earlier, could and indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to waive inheres in the concept of personal privilege and right. 20. Reference in this regard can be also made to the ratio in Krishan Lal V/s State of J&K and Martin & Harris Ltd. V/s Addl. District Judge. In Bank of India V/s O.P. Swarnakar and in Lachoo Mal V/s Radhey Shyam, this Court elucidated the general principle that everyone has a right to waive and to agree to renounce an advantage of law or rule made solely for the benefit and protection of the person in private capacity. If a party gives up the advantage that could be taken of a particular position in law, it cannot later be permitted to change and turn around so as to avail of that advantage. However, this rule will not apply when there is a prohibition against contracting out of the statute, which prohibition would have its consequences or in case the waiver would be contrary to public policy. Further, a person cannot waive a right of a third person. 21. This principle has been subsequently followed in Pravesh Kumar Sachdeva v. State of Uttar Pradesh and Others, to hold that waiver is abandonment of a right which normally everybody is at liberty to waive. Waiver is nothing unless it amounts to release, albeit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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