TMI Blog2014 (8) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 28-8-2014 - S.J. Vazifdar and A.K. Menon, JJ. For Appellant: Pravin Samdani, Senior Counsel, Pradeep Bakhru i/b and Wadia Ghandy Co. For Respondent: Kedar Wagle JUDGMENT S.J. Vazifdar, J. 1. Admit. With the consent of the parties, the appeal is taken up for final hearing. 2. This is an appeal against the order of the learned single Judge granting the appellant (original defendant) leave to defend the suit filed by the respondent subject to its depositing the rupee equivalent to Euros 11,37,866.30 at the rate as may be applicable on the date of such deposit within eight weeks. 3. The respondent raised indents upon the appellant for supply of certain goods on the terms and conditions contained ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal amount with interest thereon at 4% p.a. from the date of invoices, and by granting the appellant unconditional leave for the balance interest. The appellant can have no further grievance in this regard. 6. Mr. Samdani then submitted that the appellant had issued promissory notes in favour of the respondent for the amounts mentioned in the invoices, that these promissory notes were endorsed by the respondent in favour of the Dresdner Bank and that there was no endorsement back to the respondent. He submitted that if Dresdner Bank also files a suit on the said invoices, it would result in the appellant being required to pay the amount twice over. 7. The defence is moon shine. It is common ground that the value of the invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is defence only establishes the appellant's intention not to make any payment whatsoever in respect of the goods sold and delivered to it by the respondent. 9. This brings us to Mr. Samdani's last contention. Mr. Samdani submitted that the invoices state that the contract and legal relationship between the parties shall be governed by the substantive laws of the Federal Republic of Germany. He submitted that the respondent had not proved German law and was therefore, not entitled to any reliefs. 10. Foreign law is a question of fact. There is a presumption that unless the contrary is proved, the general law of a foreign country is the same as Indian law and that the mere fact that the contract was entered into with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved that that municipal law is different in any material respect from the English law, this will of course be taken into account in determining their intention. But having regard to the presumption that unless the contrary be proved the general law of a foreign country is the same as the English law, the mere fact that the contract was entered into with reference to the law of another country will be immaterial. Having regard to the history of English mercantile law, the presumption referred to is itself quite reasonable. The observations that follow do not either dilute or qualify the ratio in the sentence emphasised. They merely provide the rationale for the presumption. Nor do I read the ratio of this judgment as being confine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of German law contrary to Indian law on the basis of which the appellant would have a defence to the claim in suit. In fact, it is not even alleged that German law on any point in issue is different from Indian law. 15. There is therefore, no defence whatsoever to the suit except to the limited extent of the rate of interest. 16. In the circumstances, the appeal ought to be disposed of by the following order :- i). The impugned order is confirmed with a modification only to the extent that in the event of a decree being passed for non-deposit, interest shall be computed at 4% p.a. and not at 12% p.a., as prayed in the suit. In that event for the balance interest of 8% p.a., the appellant shall be entitled to unconditional ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
