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2022 (12) TMI 1199 - HC - FEMAThis Court jurisdiction to entertain the execution petition of a foreign decree - Summary judgement - execution proceeding emanates from the letter which respondent/DH demanded repayment from the appellant/JD the amount paid to the lender – bank as Guarantor of the loan obtained by the appellant/JD; which was refuted by the appellant/JD - HELD THAT:- Upon going through decision in Renusagar Power Co. Ltd. Vs. General Electric Co [1993 (10) TMI 232 - SUPREME COURT] and applying it to the facts of the present case, we find that no doubt in view of said decision ex post facto permission can be obtained from the RBI to remit the funds, however, when the decree itself is found to be vitiated, being against the prescribed procedure of law recognized in India, the occasion for obtaining ex post facto permission from RBI by the decree holder in respect of awarded amount, does not arise at all. We have already observed that the decree passed by the Court in UK is without any merit and abrogative. Also, in the present case the respondent/DH was the Guarantor to the lender located in a foreign country. We also find that once a conditional permission has been granted by the RBI, any claim beyond the said conditions is contrary to law. A careful evaluation of afore-noted statements made on behalf of appellant/JD’s witness as well observations of the UK court shows that the pleas raised by both the sides are on triable issues. However, without granting an opportunity to leave to defend to appellant/JD, the UK court has passed the Summary Judgment, enforcement of which is sought in India. It is an admitted position that on one hand appellant/JD filed its leave to defend and on the other, respondent /DH sought passing of Summary Judgment by the Court. It is also not disputed that at the time of passing of the impugned judgment and decree, leave to defend filed by the appellant/JD was not granted and it is on the basis of documents placed on record the Summary Judgment was passed. In BL Kashyap v. JMS Steels and Power Corporation [2022 (1) TMI 1311 - SUPREME COURT] it has been held that while dealing with the application seeking leave to defend, the Court has not to proceed as if denying the leave is the rule and it is only to be granted in meritorious cases, rather the Court has to ensure that where triable issues are raised, leave to defend be granted and even the Court can grant conditional leave to defend. This Court had specifically put a query to appellant/ JD, why it did not file an appeal before the UK Court? - The learned senior counsel appearing on behalf of appellant replied that when the respondent/DH sought a Summary Judgment from the Court at UK to get the decree enforced in India, that too without affording an opportunity to leave to defend to the appellant/JD, which is against the procedure followed under Indian Law, there was no ground to file an appeal against the said judgment in UK or in India. We find that since the foreign decree was not executable in India, in such circumstances there was no occasion for appellant/JD to file an appeal against that and it is only when its executions is sought in India, the appellant/JD has filed its objections. The present case has not been filed under Order und 14 RSC and after passing of Default Judgment, respondent/DH sought Summary Judgment under Rule 24.2 of the UK Civil Procedure Rule, 1998, which is completely different than the other provisions of law and so, the decision in Navin Khilani [2007 (5) TMI 686 - DELHI HIGH COURT] is not applicable to the facts of the present case. We find that the setting aside of default judgment and passing of summary judgment by the same court at UK, is not recognized under the prescribed procedure of law in this country. Moreover, the disputes between the parties are triable issues and denial of leave to defend to the appellant/JD is against the interest of justice.
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