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TMI Blog2022 (4) TMI 1612X X X X Extracts X X X X X X X X Extracts X X X X ..... The suit has been filed to administer the suit properties of the bankrupt defendant no.1 towards realization of monies. So, it is squarely covered by the language of Section 2(1)(c) of the Commercial Courts Act and the Explanation thereto. Therefore, it would be irrelevant if the said properties, in respect of which relief is claimed, are residential properties or not and the present suit would be maintainable as a commercial suit. Even otherwise, if the suit is not taken to be a commercial suit, this Court has the power to convert a commercial suit into an ordinary suit and proceed to hear the matter. This cannot be a ground for rejection of the suit. The suit has been valued in excess of Rs. 10 crores and ad valorem court fees thereon has been paid by the plaintiff. It is not denied that this Court has the territorial and the pecuniary jurisdiction to hear the present suit, even if it is taken to be an ordinary suit. Cause of action - The present suit has been filed only towards administration of assets of the defendant no.1 and not for recovery of the loan amounts from the defendant no.1. Therefore, there is no merit in the contention of the applicant/defendant no.2 that the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CPC. There is no reason why a person who has been declared bankrupt by a foreign court in terms of the law applicable to that jurisdiction, should be afforded protection by the Indian Courts on technical objections being raised with regard to the validity of the foreign judgment. In the modern times of globalization, foreign creditors cannot be treated differently from domestic creditors. Applicability of Japanese law and limitation period - In my view, for a suit filed in India, the limitation would have to be seen under the Indian law and not foreign law. In terms of Article 101 of Schedule to the Limitation Act, the prescribed period of limitation is three years from the date of a judgement, including foreign judgement. It is not the case of the defendants that the present suit is time barred under the Indian laws of limitation. The judgment of the Supreme Court in Bank of Baroda [ 2020 (3) TMI 1472 - SUPREME COURT] was in the context of limitation for the execution of a foreign decree u/s 44A of the CPC. It was in that context that the Supreme Court gave a finding that the issue of limitation is a matter of substantive law and not procedural law. Therefore, the present sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in accordance with the provisions of the Bankruptcy Act (Act No. 75 of June 2, 2004) of Japan (hereinafter referred to as the Japanese Bankruptcy Act ) to recuperate the necessary amounts against the estate of the defendant no.1. (vii) The defendant no.1 challenged the bankruptcy order of the Tokyo District Court by filing an appeal before the Tokyo High Court. (viii) The Tokyo High Court dismissed the aforesaid appeal vide detailed judgment dated 17th June, 2016 and upheld the order passed by the Tokyo District Court. Thereafter, the defendant no.1 filed an appeal before the Supreme Court of Japan, which was dismissed vide order dated 16th September, 2016. (ix) After taking over as the Bankruptcy Trustee in respect of the estate of the defendant no.1, the plaintiff conducted an investigation in India and around November, 2017, the plaintiff came to know that the defendant no.1 was the owner of the following properties in India: a. The ground floor of a building on a land bearing no. 216, in Block 172, situated in Jor Bagh, New Delhi ( Property No.1 ) with valuation of approx. INR 8,37,00,000/-; and, b. One-fourth (1/4th) undivided share in the first floor of a building on a lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruptcy estate, a bankruptcy trustee shall stand as a plaintiff or defendant. 4. Based on the aforesaid pleadings, the following reliefs have been sought in the plaint: (i) a decree of declaration in favour of the Plaintiff and against the Defendants, declaring the Gift Deed dated November 23, 2015, and the Relinquishment Deed dated January 8, 2016 to the extent of the relinquishment of the one-fourth (1/4th) undivided share of the defendant no.1 in the first floor of a building on a land bearing number no. 216, in Block 172, situated in Jor Bagh, New Delhi (i.e. the Property 2), as void under Section 53 of the Transfer of Property Act, 1882; (ii) a decree of declaration in favour of the Plaintiff to administer the Ground Floor of a building on a land bearing number no. 216, in Block 172, situated in Jor Bagh, New Delhi (i.e. the Property 1) and the defendant no.1 s one-fourth (1/4th) undivided share in the First Floor of the aforesaid property (i.e. the Property 2), and to take the possession of the said Suit Properties and/or any other incidental/further action in this regard, and further sell or dispose of the same as a vendor and receive and appropriate the sale proceeds thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 176 of the Japanese Bankruptcy Act, the prescribed period of limitation is two years. In the present case, the order declaring the defendant no.1 as bankrupt was passed by the District Court in Japan on 4th January, 2016, whereas the present suit was filed on 20th September, 2018. Therefore, the suit is barred by limitation. (viii) While considering limitation, the limitation law of the cause country should be applied even in the forum country, i.e., the Japanese law of limitation has to be applied instead of the Limitation Act, 1963. Reliance is placed on the judgment in Bank of Baroda v. Kotak Mahindra Bank Ltd., 2020 SCC OnLine SC 324. (ix) A suit can be rejected under the provisions of Order VII Rule 11 of the CPC on the ground of limitation. In this regard, reliance is also placed on the judgment of Supreme Court in Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Legal Representatives, (2020) 16 SCC 601. 6. The counsel appearing on behalf of the defendant no.1 has adopted the submissions made on behalf of the defendant no.2. He has further submitted that the order dated 4th January, 2016 passed by the District Court in Japan was challenged by the defendant no.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creditors in Japan. It is also a matter of record that the aforesaid documents were executed without any consideration. Therefore, on a prima facie view, it appears that the defendant no.2 is not a bona fide purchaser of the Property No.2 and the aforesaid transfer in favour of the defendant no.2 is a fraudulent transfer in terms of Section 53 of the Transfer of Property Act. 10. Now, I propose to discuss the various grounds raised on behalf of the defendants invoking provisions of Order VII Rule 11 of CPC. 11. The first ground raised on behalf of the defendants is that the present suit cannot qualify as a commercial dispute under the Commercial Courts Act, as the suit properties are residential properties. 12. To appreciate this submission, reference in this regard may be made to relevant provisions of the Commercial Courts Act, which are reproduced as under: 2. Definitions. (1) In this Act, unless the context otherwise requires, (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; Explanation. A co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan documents as well as the guarantee agreements or the details of outstanding amounts. The present suit has been filed only towards administration of assets of the defendant no.1 and not for recovery of the loan amounts from the defendant no.1. Therefore, there is no merit in the contention of the applicant/defendant no.2 that the plaintiff was obligated to file the loan documents as well as the guarantee agreements or the details of outstanding amounts. It is not the defendants case that nothing is due from the defendants to the creditors in Japan. In any event, the amounts so due would be the subject matter of trial and cannot be ground for rejection of the plaint under provisions of Order VII Rule 11 of the CPC. The scope of application under Order VII Rule 11 of the CPC is limited only to the extent whether or not in terms of averments made in the plaint and the documents filed along with the plaint, the suit is maintainable. Reference in this regard may be to judgments of the Supreme Court in Dahiben v. Arvindbhai Kalyaniji Bhanusali (Gajra) Dead Through Legal Representatives and Ors., 2020 (7) SCC 366 and Srihari Hanumandas Totala v. Hemant Vithal Kamat and Others, 2021 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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 of the foreign judgment, the position at 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 limited grounds enunciated 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. Further, under Section 14 CPC there is a presumption that the foreign court which passed the order is a court of competent jurisdiction which of course is a rebuttable presumption. In the present case, the appellant does not dispute the jurisdiction of the English Court but its grievance is, it is not executable on other grounds which are canvassed before us. 22. Reference may be made to the following observations of the Bombay High Court in Marine Geotechnics LLC v. Coastal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference may be made to the following paragraphs: 19. The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC. Hence we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 CPC and it is a conclusive one. The contention of the appellant that the order is the one not on merits deserves no consideration and therefore liable to be rejected. Accordingly, Issue (i) is answered. XXX XXX XXX 37. It is to the reciprocal advantage of the courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of whether provisions of Japanese law, relied upon by the defendants, would be applicable to suits filed outside Japan. This Court would be hesitant to take a view on issues of Japanese law in the absence of an expert opinion on Japanese law. In this regard, reference may be made to Section 45 of the Indian Evidence Act, 1872, which is set out below: 45. Opinions of experts. When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting 35 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 36 [or in questions as to identity of handwriting] 35 [or finger impressions] are relevant facts. Such persons are called experts. 29. In Technip SA v. SMS Holding (P) Ltd. and Others, (2005) 5 SCC 465, the Supreme Court has analysed various provisions of French law on the basis of opinions of experts relied upon by the parties. It was specifically noted therein that under Section 45 of the Indian Evidence Act, the Court can take admitted position into consideration to form an opinion as to the text of the relevant French law. In the present case also, elaborate reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the suit. I.A.7598/2020 (u/O-XI R-1(5) of the CPC) 35. The present application has been filed by the plaintiff under provisions of Order XI Rule 1(5) of the CPC as applicable to commercial disputes seeking leave of the court to file additional documents as described in paragraph 4 of the said application. 36. It is stated in the application that the documents that are subject matter of the present application were in Japanese language and had to be translated into English. Consequently, these documents could not be filed with the plaint and therefore, have been filed along with the replication. All the aforesaid documents sought to be brought on record have been referred to in the plaint and are vital for proper and effective adjudication of the case. It is further submitted that the suit is at an early stage and issues are yet to be framed. 37. Reply has been filed on behalf of the defendant no.1 in opposition to the present application. It is stated therein that the plaintiff had the said documents in its possession at the time of filing of the suit and therefore, the said documents not having been filed with the suit, should not be allowed to be taken on record at this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld require even a lower degree of proof as compared to good cause . 15. Thus it is to be seen in the present case whether the plaintiff who is required to file voluminous documents inadvertently misses out certain documents which are in line with the documents already filed and further the case of the plaintiffs and does not set up of a contrary case, would be a reasonable cause permitting the plaintiffs to file additional documents at this stage when pleadings are not complete as yet for the reason the replications of the plaintiffs have not been taken on record as yet. The plaintiffs along with suit has filed more than 2000 documents, the nature of the suit is commercial wherein the plaintiff No.1 furnished corporate guarantee and plaintiff No.2 invested money with Bush Foods pursuant to the representations of the BOI consortium who are the defendants. By these additional documents, the plaintiffs want to further demonstrate the conduct of the defendant banks which would show correspondence between Bush Foods and defendant Banks and that to the knowledge of the defendant banks the financial condition of Bush Foods was not healthy and the said facts were concealed from the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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