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2016 (8) TMI 1533 - HC - Indian LawsConstitution of appeal suit - first defendant is personally bound by the contract or not - Exception (1) to Section 230 of the Indian Contract Act, 1872 - HELD THAT:- The trial court though has not admitted the foreign judgment in evidence has curiously enough held that the same was obtained by fraud and hence not binding on the plaintiff The reason for holding so is that the period of the letter of credit was extended solely to facilitate the second defendant to obtain an order from court. An order was obtained from the Commercial Court Records of Marseille by the second defendant before the expiry of the extended period of the letter of credit. Thus utmost care and caution should be exercised while holding that a foreign judgment was procured by fraud which would otherwise operate as an estoppel against the plaintiff. There cannot be a retrial of the issue on merits unless the foreign judgment is dislodged for weighty reasons which are wholly absent - The decree passed against defendants 2 and 3 cannot be put into execution now since more than two decades have rolled on and they are also not parties to the appeal suit. Defendants 1, 4 and 5 if now found liable are bound to be indemnified by the second defendant as the consequence of a lawful act done by an Agent under Section 222 of the Act. It will be unjust to make the second defendant vulnerable to such liability without being afforded an opportunity to contest the suit on merits after remand. The question as to whether the first defendant is an Agent of the second defendant or only an intermediary broker entitled to commission is also an ancillary issue. Neither can we accede to the request of the plaintiff to grant a decree for money in entirety as against defendants 1, 4 and 5 also in this appeal suit. Nor can we countenance the plea that there is no embargo for a decree to be passed against defendants 1, 4 and 5 in conformity with the decree passed against defendants 2 and 3 - thus, the Appeal Suit is not properly constituted impleading all the parties to the suit and therefore liable to be dismissed as incompetent in the circumstances. Appeal suit is dismissed.
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