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TMI Blog2019 (8) TMI 1881X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner is under commercial dispute, which arose before the English Court. It clearly appears from the record that the decree has become final as the petitioner has not been able to point out before this Court that it has been challenged by the petitioner before the competent appellate jurisdiction, which has become final in November 2017 and thereafter, the respondent herein has preferred an application for its execution before the competent court. The contention raised by the learned counsel for the petitioner that the Commercial Court at Rajkot (now Jamnagar) has no jurisdiction is totally meritless - What is sought to be executed by the respondent is a maritime claim as per decree by the Commercial Court at England and therefore, the dispute in the present matter is a commercial dispute as rightly held by the Commercial Court at Rajkot in all four circumstances as narrated in the impugned judgment. The record clearly indicates that the petitioner has participated before the English Commercial Court and has not contended or objected that it is not a commercial dispute. Even independently examining the same, the Commercial Court at Rajkot has come to the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d final disposal of this petition. 2. The respondent has filed the Civil Application for vacating the relief granted by this Court vide order dated 02.05.2019, whereby this Court was pleased to observe that it would be open for the petitioner to seek time before the Commercial Court at Rajkot and the same shall be granted. 3. The following noteworthy facts arise in this petition- 3.1 That the respondent filed Commercial Suit before the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales and by judgment dated 30.10.2017 and 09.11.2017 and order of Order of Costs dated 03.03.2017 and decree dated 09.11.2017 passed decree against the petitioner and the said judgments have become final. It deserves to be noted at this stage that the petitioner was the defendant in the said proceedings before the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales. 3.2 The properties of the petitioner-original defendant are situated at Jamnagar and as per the provisions of the Commercial Courts, Commercial Civil and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as the Act ), the Rajk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had given a personal guarantee which would not constitute a commercial dispute as defined under the Act and therefore, the Commercial Court lacks inherent jurisdiction to entertain the Execution Petition filed before it. According to Mr. Gupta, the Execution Petition would only lie within the Court of Principal Civil Judge, Senior Division, at Jamnagar, which has territorial jurisdiction. On the aforesaid grounds, Mr. Gupta contended that the petition be allowed. 6. Per contra, Mr. Mihir Joshi, learned senior advocate has opposed this petition. Mr. Joshi contended that it is nothing but an attempt to delay the execution proceedings. Relying upon the judgment of this Court in the case of State of Gujarat v. Union of India reported in 2018 JX (Guj) 690, it was contended by Mr. Joshi that the present petition is not maintainable. It was contended by Mr. Joshi that as per the Division Bench Judgment as well as the judgments of the Supreme Court, the petition against the order of the learned Commercial Court against the interim order is not maintainable as provided under section 8 of the Act. Mr. Joshi contended that the original proceedings before the English Courts were before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, it clearly transpires that the dispute between the parties arose as a maritime claim. The proceedings were filed before the English Commercial Court, i.e., before the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales under the English law. The said proceedings have culminated into decree in favour of the respondent herein. 10. Section 2(c) of the Act reads as under - (c) commercial dispute means a dispute arising out of-- (i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents; (ii) export or import of merchandise or services; (iii) issues relating to admiralty and maritime law; (iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same; (v) carriage of goods; (vi) construction and infrastructure contracts, including tenders; (vii) agreements relating to immovable property used exclusively in trade or commerce; (viii) franchising agreements; (ix) distribution and licensing agreements; (x) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantee is a true guarantee which provides for a secondary liability in the sense that the guarantor's liability mirrors the liability of the principal debtor. Whilst there 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by me (ex parte) and subsequently continued by HHJ Waksman on the return date. There is no reason why the injunction should not be made final. Mr. Jagatramka has not amended his Defence to deny Ultrabulk's claim for a final injunction. The personal guarantee reads that the personal guarantee shall cover any and all worldwide assets owned by the Guarantor, including, but not limited to property, bank accounts, land, shares and/or any other assets whatsoever, legally and beneficially owned. The decree has become final and the certificate for enforcement of the decree in a foreign country has also been granted by the Commercial Court at England. The decree which is passed clearly indicates that the respondent entered into certain Cooperation Agreements with the Gujarat Company whereunder they agreed to long term charter vessels to be operated and the Gujarat Company ended being liable to enforceable debt to the respondent, which as on 31.03.2013 was USD 43,00,000/- and in terms of the recital of the personal guarantee, the liability of the petitioner has triggered automatically on the Gujarat Company having made default in discharge of the debt of USD 4,259,395 as on 31.12.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the face of the proceedings nor a grave injustice or gross failure of justice has occasioned in the case on hand. On the contrary, the record indicates that having filed objections under section 13 of the CPC before the Commercial Court at Rajkot, only with an aim and object to delay the execution proceedings, the petitioner filed the present application exhibit 19 and on its dismissal, the present writ petition under Article 227 of the Constitution of India. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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