2023 (10) TMI 69 - GUJARAT HIGH COURT

CIRP - Execution of decree awarded by foreign court - Overriding provision of IBC - execution proceedings can be continued in view of the interim moratorium or not - HELD THAT:- If any act violates the provisions of FEMA, permission of RBI may be obtained postfacto. Therefore, it cannot be said that the foreign judgement is in breach of Indian law or fails to recognise such breach and therefore is inconclusive.

As far as the contention of the learned counsel for the petitioner that the Foreign Judgement has purportedly held that foreign decree cannot be enforced in India and ought to be enforced in other countries is concerned, it is clear that such an observation was only to suggest that the decree holder had an option to enforce a foreign decree against the assets of judgement debtor in other countries. The judgements cited in the case of Mrs Shobha Vishwanatha [1996 (4) TMI 529 - MADRAS HIGH COURT], Algemene Bank Netherland NV [1989 (12) TMI 271 - HIGH COURT OF BOMBAY] were in the context of FERA regime and therefore reliance by the counsel for the petitioner on these are misplaced.

The conduct speaks volumes in the case i.e. how clearly after every attempt to stall the execution proceedings failed, did the petitioner, as an after thought, try to forestall the execution proceedings.

There is no merit in the petition - Petition dismissed.

Seeking a formal order staying further proceedings in the execution petition in view of deemed stay of further proceedings as per the provisions of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- As far as the IBC is concerned and with regard to the correctness of the order with regard to the currency of the interim moratorium, the preamble provides to complete the resolution in a time bound manner.

Now coming to the question of constructive res-judicata as held in the case of Sarguja Transport Services [1986 (11) TMI 377 - SUPREME COURT], that though the principles of res-judicata is not strictly applicable to writ petitions under Article 227 of the Constitution of India, the legal principles underlying Order XXIII, Rule 1(4)(b) would as a matter of public policy be applicable to writ petitions.

Application dismissed.