caselaws
Supreme Court of India
Messer Greisheim Gmbh (Now Called … vs Goyal Mg Gases Private Limited on 28 January, 2022Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 521 OF 2022
(Arising out of SLP(Civil) No(s). 22539 of 2014)
MESSER GRIESHEIM GmbH
(NOW CALLED AIR LIQUIDE
DEUTSCHLAND GmbH) …APPELLANT(S)
VERSUS
GOYAL MG GASES PVT. LTD. …RESPONDENT(S)
JUDGMENT
Rastogi, J.
1. Leave granted.
2. The appellant/decree holder has challenged the judgment of
the Division Bench of the High Court of Delhi dated 1 st July, 2014
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2022.01.28
17:06:51 IST
Reason: relegating to file a petition for execution of a money decree dated 7 th
February, 2006(in excess of Rs. 20 lakhs) of a foreign Court
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indisputedly notified as a superior Court of a reciprocating territory
before the District Court in view of Section 44A of the Code of Civil
Procedure, 1908(hereinafter being referred to as the “Code”).
3. It is an old saying that the difficulties of the litigant in India
begin when he has obtained a decree. The evil was noticed as far
back in 1872 by the Privy Council in relation to the difficulties faced
by the decree holder in execution of the decree (MIA p.612) 1. After
more than a century, there has been no improvement and still the
decree holder faces the same problem what was being faced in the
past. A litigant coming to Court seeking relief is not interested in
receiving a paper decree when he succeeds in establishing his case.
What he primarily wants from the Court of Justice is the relief and
if it is a money decree, he wants that money what he is entitled for
in terms of the decree, must be satisfied by the judgment debtor at
the earliest possible without fail keeping in view the reasonable
restrictions/rights which are available to the judgment debtor
under the provisions of the statute or the code, as the case may be.
1 General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 :
20 ER 912
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4. Instant case is the live illustration before us where the decree
holder was able to get a money decree of a foreign Court which is
notified as a superior Court of a reciprocating territory way back on
7th February, 2006 and after 16 years have been rolled by, still the
screen is smokey and not clear as to which is the forum where he
could approach for execution of a decree.
5. The brief facts culled out from the record are that the
appellant initiated proceedings before the High Court of Justice,
Queen’s Bench Division, Commercial Court, United
Kingdom(“English Court”) which is a superior Court of a
reciprocating territory(namely, United Kingdom of Great Britain and
Northern Island) notified under Section 44A of the Code vide
Notification No. SRO 399 dated 1st March, 1953 issued by the
Ministry of Law as amended by GSR 201 dated 13 th March, 1958.
6. Earlier, a default decree was passed due to nonappearance of
the respondent/judgment debtor in UK Court on 6th February,
2003. The appellant issued a winding up notice to the respondent,
who objected the same as the judgment dated 6 th February, 2003
was a default decree. To meet the objection raised by the
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respondent, the appellant approached the English Court and
sought setting aside of the default decree and prayed for passing a
decree on merits of the case. At this juncture, the respondent
entered appearance and the English Court by a judgment and
decree dated 7th February, 2006 granted a money decree for a
principal sum of US $ 5,824,564.74.
7. It is pertinent to note that the respondent did not file any
appeal against the judgment and decree dated 7 th February 2006
and that has attained finality.
8. The total decretal amount indisputedly on the date of filing of
the execution petition before the Delhi High Court on 27 th April,
2006 was exceeding Rs. 20 lakhs which was the pecuniary limits of
the Delhi High Court in terms of Section 5(2) of the Delhi High
Court Act, 1966(hereinafter being referred to as “Act 1966”) which
was later enhanced to Rs.2 crores in the year 2015, to entertain the
execution petition as the principal Court of original jurisdiction.
9. It has been alleged by the appellant that the decretal amount,
if it is taken at the face value as on 20 th January, 2022, may come
to approximately Rs. 99 crores.
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10. The appellant filed a petition for execution of money decree in
the High Court of Delhi on 27th April, 2006. A reply to the
execution petition was filed by the respondent on 17 th January
2007, raising several objections which are available at its command
as envisaged under Section 13 of the Code. Later a further
objection was raised that the High Court of Delhi has no
jurisdiction to entertain the execution petition in view of Section
44A of the Code.
11. Learned Single Judge of the High Court overruled the
preliminary objections and held that taking value of the execution
of the money decree dated 7th February, 2006 of the English Court
exceeding Rs. 20 lakhs, at given point of time, i.e., 27 th April,
2006(the day on which the execution petition was filed), High Court
of Delhi holds the exclusive jurisdiction of ordinary original civil
jurisdiction and after meeting out other objections on merits
decided the execution petition by a judgment dated 29 th November,
2013. The operative part of the judgment are as under:
E.A. No. 653 of 2009
69. This is an application by the DH for a direction to the JD to
deposit the original title deeds of Sahibabad property.
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70. For the reasons stated therein, the application is allowed and
a direction is issued to the JD to deposit the original title deeds of
the property, land measuring 18774 sq. yds. At 8/7, SiteIV,
Sahibabad, Industrial Area, Sahibabad, District Ghaziabad in the
Court within two weeks, and when so deposited, it shall be kept in
a sealed cover by the Court. At the time of filing the original title
deeds, the JD will deliver to the learned counsel for the DH a
photocopy thereof.
EA No. 654 of 2009
71. By this application, the DH seeks a clarification that the
order dated 3rd November, 2009 passed by the Court releasing the
lien on the property at Ghaziabad, Uttar Pradesh should be made
conditional upon the Managing Director (MD) or any other
competent director of the JD furnishing a written undertaking that
the Ghaziabad property is free from all encumbrances and further
than no written consent from the State Bank of India (‘SBI’) under
Clause 11 of the agreement for hypothecation of goods and assets
dated 24th November, 2008 is required.
72. Despite notice having been served in both these applications
way back on 20th November 2009, no reply has been filed to this
application.
73. Consequently, the application is allowed and a direction is
issued to the MD/authorized Director of the JD to file an affidavit
in this Court within two weeks clarifying (a) that the property at
Sahibabad, Ghaziabad is free from all encumbrances or charge as
on the date of the order dated 3 rd November, 2009; (b) that no
written consent from the SBI under Clause 11 of the Agreement for
hypothecation of the goods and assets dated 24 th November, 2008
is required for enforcing the said order visàvis the said Sahibabad
property in terms of the statement made by the JD to the Court on
27th April, 2006 and (c ) that, as on date, there is no lien/charge
etc. created on the Sahibabad property.
74. The application is disposed of.”
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12. The judgment of the learned Single Judge of the High Court of
Delhi dated 29th November, 2013 was assailed by the respondent
judgment debtor before the Division Bench of the High Court.
13. The Division Bench of the High Court, in the facts and
circumstances, considered it appropriate to examine the singular
issue confining it to the jurisdiction of the High Court of Delhi in
executing the money decree dated 7 th February, 2006 of the English
Court, in exercise of its original jurisdiction in terms of Section 44A
of the Code and after the parties being heard, arrived at the
conclusion that Section 44A is an independent right conferred on a
foreign decree holder for enforcement of its decree in India. It is a
fresh cause of action and has no corelation with jurisdictional
issues. The scheme of Section 44A of the Code is alien to the
scheme of domestic execution as provided under Section 39(3) of
the Code and finally held that the High Court of Delhi, not being a
District Court, in terms of Section 44A of the Code, is not vested
with the jurisdiction to entertain execution petition and directed to
be transferred to the Court of District Judge within whose
jurisdiction the property sought to be attached is situated for being
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dealt with in accordance with law, which is a subject matter of
challenge in appeal before us.
14. Dr. Abhishek Manu Singhvi, learned senior counsel appearing
for the appellant submits that the jurisdiction for execution of a
foreign Court’s decree of a reciprocating territory vests with the
High Court of Delhi, provided the value of the money decree exceeds
the pecuniary limits as notified under Section 5(2) of the Act 1966.
15. Learned counsel further submits that it is not in dispute that
the judgment and decree dated 7th February, 2006 has been passed
by a notified superior Court of the reciprocating territory, namely,
United Kingdom of Great Britain and Northern Ireland within the
meaning of Section 44A of the Code in terms of a notification dated
1st March 1953 issued by the Ministry of Law. The High Court of
Delhi also vests with the ordinary original civil jurisdiction, subject
to the pecuniary limits as being notified under Section 5(2) of the
Act 1966 and it would be impossible to read into Section 44A that
even though the pecuniary jurisdiction of a civil Court(which lacks
the pecuniary jurisdiction) is restricted, only for the purpose of
execution of a foreign decree, it becomes a District Court in respect
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of the matters which fall within the ordinary civil jurisdiction of the
High Court and when there is a split jurisdiction in the cities like
Delhi, Kolkata, Chennai and Mumbai, the High Court would have to
be considered to be included as “a principal civil Court of original
jurisdiction” where it exceeds its pecuniary jurisdiction as being
contemplated in the respective statutes alike Section 5(2) of the Act
1966 in the instant case.
16. Learned counsel further submits that there can be two or
more Courts which are concurrently a principal civil Court of
original jurisdiction subject to their pecuniary limits as being
envisaged under Section 5(2) of the Act 1966. If that being so, if
pecuniary jurisdiction exceeds what is prescribed/notified under
the Act, it is the High Court of Delhi which will be considered to be
the principal Court of original civil jurisdiction as defined under
Section 5(2) of the Act 1966 and the execution petition being a
continuation of the suit proceedings, the Division Bench of the High
Court has committed a manifest error in holding that the High
Court of Delhi is not vested with the jurisdiction to entertain an
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execution petition as being a District Court defined in terms of
Section 44A of the Code.
17. Per Contra, Mr. Rakesh Dwivedi, learned senior counsel for
the respondent, while supporting the finding recorded in the
impugned judgment, submits that Section 44A is an independent
right conferred on a foreign decree holder for enforcement of its
decree in India and the scheme of Section 44A of the Code is alien
to the scheme of domestic execution as provided under Section
39(3) of the Code. The domestic decree can indeed be executed by
the Court which passed the decree or Court of competent
jurisdiction to which it is transferred for execution. So far as
execution of foreign decree is concerned, it is being governed by an
independent right conferred under Section 44A of the Code which
unequivocally confers exclusive jurisdiction in this regard on a
“District Court” and the words mandating the competence of the
executing Court, to try the original cause, in which the decree was
passed, are conspicuous by their absence, in this provision.
18. To be more specific, learned counsel submits that Section 44A
of the Code is in the nature of an independent, enabling provision
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which gives the decree holder a fresh and new cause of action
irrespective of the original character of the cause in which the
decree came to be passed.
19. Learned counsel further submits that so far as the pecuniary
competence to try a suit of the decretal amount is concerned, it may
be in the context of the domestic decree for execution as referred to
under Sections 38 and 39 of the Code and once Section 44A confers
exclusive jurisdiction on District Court in which the money decree
of a foreign Court has to be filed for execution, no other Court holds
competence other than the District Court for execution of a foreign
decree.
20. Learned counsel further submits that Section 5(2) of the Act
1966 conferred with a limited ordinary original civil jurisdiction qua
‘suits’ above a certain pecuniary value and further submits that the
expression “suit” as used in Section 5(2) of the Act 1966 has to be
understood in its ordinary, limited sense of a ‘Civil Suit’, and will
not include execution proceedings. Section 4 of the Delhi High
Court(Amendment) Act, 2003 draws a distinction between a “suit”
and “other proceedings” and submits that it is the District Court
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alone which holds jurisdiction for executing a foreign decree and no
error has been committed by the High Court in the impugned
judgment which may call for interference of this Court.
21. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
22. The question that emerges for our consideration is whether the
High Court of Delhi in exercise of its original jurisdiction is a
competent Court to entertain a petition for executing a money
decree(in excess of Rs.20 lakhs) of a foreign Court which is notified
as a superior Court of reciprocating territory under Section 44A of
the Code.
23. It is not disputed that so far as the expression “superior Court
of any reciprocating territory” as defined under Section 44A of the
Code is concerned, the judgment and decree dated 7 th February,
2006 has been passed by the notified superior Court of the
reciprocating territory, namely, United Kingdom of Great Britain
and Northern Ireland within the meaning of Section 44A of the Code
vide notification dated 1st March, 1953 issued by the Ministry of
Law, thus it leaves no doubt that the decree of the High Court of
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England would be considered to be a decree of superior Court of a
reciprocating territory.
24. In order to appreciate the submissions made, it may be
relevant to first take a look at the scheme of the Code and also
relevant provisions of the Act 1966 which are reproduced
hereunder:
“Section 2(4) of the Code – “District”
“district” means the local limits of the jurisdiction of a principal
Civil Court of original jurisdiction (hereinafter called a “District
Court”), and includes the local limits of the ordinary original civil
jurisdiction of a High Court;
Section 6 of the Code – “Pecuniary Jurisdiction”
Save in so far as is otherwise expressly provided, nothing herein
contained shall operate to give any Court jurisdiction over suits the
amount or value of the subjectmatter of which exceeds the
pecuniary limits (if any) of its ordinary jurisdiction.
Section 13 of the Code – “When Foreign Judgement not
Conclusive”
A foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under the
same title except—
(a) where it has not been pronounced by a Court of
competent jurisdiction;
(b) where it has not been given on the merits of the
case;
(c) where it appears on the face of the proceedings to
be founded on an incorrect view of international law
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or a refusal to recognise the law of India in cases in
which such law is applicable;
(d) where the proceedings in which the judgment was
obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of
any law in force in India.
Section 44A of the Code “Execution of Decrees passed by
Courts in reciprocating territory”
(1) Where a certified copy of a decree of any of the superior courts
of any reciprocating territory has been filed in a District Court, the
decree may be executed in India as if it had been passed by the
District Court.
(2) Together with the certified copy of the decree shall be filed a
certificate from such superior court stating the extent, if any, to
which the decree has been satisfied or adjusted and such
certificate shall, for the purposes of proceedings under this section,
be conclusive proof of the extent of such satisfaction or
adjustment.
(3) The provisions of Section 47 shall as from the filing of the
certified copy of the decree apply to the proceedings of a District
Court executing a decree under this section, and the District Court
shall refuse execution of any such decree, if it is shown to the
satisfaction of the court that the decree falls within any of the
exceptions specified in clauses (a) to (f) of Section 13.
Explanation 1.—“Reciprocating territory” means any country or
territory outside India which the Central Government may, by
notification in the Official Gazette, declare to be a reciprocating
territory for the purposes of this section; and “superior courts”,
with reference to any such territory, means such Courts as may be
specified in the said notification.
Explanation 2.—“Decree” with reference to a superior court means
any decree or Judgment of such Court under which a sum of
money is payable, not being a sum payable in respect of taxes or
other charges of a like nature or in respect of a fine or other
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penalty, but shall in no case include an arbitration award, even if
such an award is enforceable as a decree or Judgment.]]
Section 5 Delhi High Court Act, 1966 – “Jurisdiction of High
Court of Delhi”
(1) The High Court of Delhi shall have, in respect of the territories
for the time being included in the Union Territory of Delhi, all such
original, appellate and other jurisdiction as, under the law in force
immediately before the appointed day, is exercisable in respect of
the said territories by the High Court of Punjab.
(2) Notwithstanding anything contained in any law for the time
being in force, the High Court of Delhi shall also have in respect of
the said territories ordinary original civil jurisdiction in every suit
the value of which exceeds Rupees twenty lakhs.
25. The expression ‘District” is defined under Section 2(4) of the
Code and the term “District Court” referred under Section 44A of
the Code although not defined, but on conjoint reading of the
provision makes it clear that it refers to the local limits of the
jurisdiction of a principal civil Court of original jurisdiction
(provisions of the Code called a “District Court”) and it includes the
local limits of the ordinary original civil jurisdiction of a High Court
and it is not disputed that principal civil Court of original
jurisdiction is normally a District Court (with whatever change in
the nomenclature) and the High Courts in India exercising ordinary
original civil jurisdiction are not too many, but where there is a split
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jurisdiction based on its pecuniary value, notified from time to time,
the District Court or the High Court in its ordinary original civil
jurisdiction is competent to exercise power for execution of decree,
including money decree of the foreign Court of reciprocating
jurisdiction, provided other conditions are complied with as
contemplated under Section 44A of the Code.
26. Section 44A of the Code provides for execution of decrees
passed by the foreign Courts in reciprocating territories. It, inter
alia, stipulates that where a certified copy of a decree of any of the
superior Court of any reciprocating territory has been filed in a
District Court, the decree may be executed in India as if it had been
passed by a District Court. Together with the certified copy of the
decree, a certificate from such superior court is to be filed stating
the extent, if any, to which the decree has been satisfied or
adjusted. Such a certificate is the conclusive proof of the extent of
such satisfaction or adjustment. Subsection 3 of Section 44A of
the Code further lays down that provisions of Section 47 of the
Code shall apply to such execution proceedings and the Court can
refuse execution of any such decree, if it is shown to the
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satisfaction of the Court that the decree falls within any of the
exceptions specified in clauses (a) to (f) in Section 13 of the Code.
27. The ordinary original civil jurisdiction of the High Court is
always exercised, based on pecuniary limits. It would be impossible
to read into Section 44A of the Code that even though the pecuniary
jurisdiction of Civil Court is restricted, still for the purpose of
execution of a foreign decree, it becomes the District Court in
respect to those matters which fall within the ordinary original civil
jurisdiction of the High Court and the expression “district” defined
under Section 2(4) of the Code will have to be given its true effect.
To read the expression “District Court” in Section 44A for execution
of foreign decree, it will be construed to be a Court holding ordinary
original civil jurisdiction in terms of its pecuniary limits as being
notified under Section 5(2) of the Act 1966.
28. It leaves no manner of doubt that once the pecuniary
jurisdiction at the given point of time exceeded Rs. 20 lakhs as
notified by the High Court under Section 5(2) of the Act 1966 (later
vide notification dated 10th August, 2015 (w.e.f. 26th October, 2015)
pecuniary limits has been revised to Rs.2 crores), it is the High
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Court of Delhi which holds its exclusive jurisdiction as ordinary
original civil jurisdiction to execute a foreign decree under Section
44A of the Code and it goes without saying that execution always is
in continuation of the proceedings.
29. Section 24 of the Punjab Courts Act 1918, of which the
Division Bench has put its emphasis, which is applicable to Delhi,
the Court of District Judge would be the principal civil Court of
original jurisdiction. Under Section 5(1) of the Act 1966, the High
Court of Delhi exercises all such original, appellate and other
jurisdiction as was exercisable by the High Court of Punjab in the
Union Territory of Delhi. Then, there is Section 5(2) of the Act 1966
which starts with a nonobstante clause which empowers the High
Court of Delhi to exercise its ordinary original civil jurisdiction in
every suit where the pecuniary value exceeds, as being notified by
the competent authority and thus, the High Court of Delhi indeed
holds original civil jurisdiction in a suit where the value exceeds its
pecuniary limits and if Section 24 of the Punjab Courts Act, 1918 is
read with Section 5(2) of the Act 1966, it is quite clear that certain
jurisdiction has been taken away from the District Court and
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conferred with the High Court of Delhi and this original civil
jurisdiction is only in respect to the suits where the pecuniary limit
exceeds as notified by the authority under Section 5(2) of the Act
1966 and that would make the High Court of Delhi, the principal
Court of original civil jurisdiction, for all practical purposes.
30. The Division Bench has proceeded on the basis of the
expression “District Court”, as being referred under Section 44A of
the Code but it has not taken into consideration the other relevant
provisions of which a reference has been made by us while coming
to the conclusion that the expression “District” as defined under
Section 2(4) of the Code only lays down the limits of the jurisdiction
of the principal civil Court of original jurisdiction and that includes
the ordinary original civil jurisdiction of the High Court and once
the pecuniary jurisdiction exceeds as being notified under the
relevant statute, the jurisdiction vests exclusively with the High
Court as an ordinary original civil jurisdiction for execution of a
foreign decree under Section 44A subject to the just objections
which are available to the parties/judgment debtor as envisaged
under Section 13 of the Code.
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31. Consequently, the appeal succeeds and accordingly allowed.
The judgment of the Division Bench of the High Court dated 1 st July
2014 is hereby quashed and set aside. Since the parties have not
addressed on merits, E.F.A.(O.S.) No. 3 of 2014 is restored on the
file of the Division Bench of the High Court of Delhi. This being an
old matter where the foreign decree dated 7 th February, 2006 could
not have been executed for almost 16 years by this time, we
consider it appropriate to observe that let the Division Bench may
take up the matter on priority and decide the same on its own
merits as expeditiously as possible keeping in view its long awaiting
execution in accordance with law, but in no case later than four
months.
32. Pending application(s), if any, stand disposed of.
………………………J.
(AJAY RASTOGI)
………………………J.
(ABHAY S. OKA)
NEW DELHI
JANUARY 28, 2022.
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