Case Note & Summary
The Bombay High Court was hearing three notices of motion in a suit for enforcement of a foreign judgment under Section 13 of the Code of Civil Procedure, 1908. The plaintiff, BNP Paribas (suisse) SA, a bank, sought attachment before judgment against two defendants, Atit Omprakash Agarwal and Sharad Satyanarayan Agarwal, to restrain them from disposing of assets pending the suit. The plaintiff alleged that in 2001, a mistaken credit of USD 500,000 was made into an account of Southgate Corporate Holdings Limited, which was operated by the defendants. The error was discovered in 2003, and after failed recovery attempts, the plaintiff filed a criminal complaint in Switzerland and later civil suit before the District Court of the Republic and Canton of Geneva. That court passed an ex-parte decree in 2008, holding the defendants jointly and severally liable for USD 500,000 plus interest and costs. In 2011, the plaintiff filed a suit in Bombay to enforce that decree, claiming it was conclusive under Section 13 CPC and did not fall within any of the exceptions. Along with the suit, the plaintiff obtained an ex-parte ad-interim order in January 2012, directing the defendants to disclose immovable properties and restraining them from disposal. The defendants, each separately, sought recall of that order. The court concentrated on whether the plaintiff had a prima facie case as required under Order 38 Rule 5 CPC. This required examining the conclusiveness of the Swiss court judgment. The defendants contended that the judgment was not on merits, refused to recognize applicable Indian law, and sustained a claim founded on breach of Indian law, thus falling under exceptions (b), (c), and (f) of Section 13. They also argued that the plaintiff had produced only an excerpt from the minutes of the Swiss court and not a certified copy as required by Section 86 of the Indian Evidence Act, 1872. The court noted these contentions and proceeded to assess the document and the merits of the foreign judgment. The available text does not include the final decision on the motions.
Headnote
A) Civil Procedure - Foreign Judgment - Conclusiveness - Code of Civil Procedure, 1908, Section 13 - Suit based on Swiss Court decree; court considered whether it is conclusive or falls within exceptions (b) (not on merits), (c) (refusal to recognize Indian law), and (f) (sustains claim on breach of Indian law) - Swiss court is not a reciprocating territory, so Section 44A does not apply and the judgment must be tested under Section 13 (Paras 8-9)
B) Evidence - Proof of Foreign Judgment - Certified Copy - Indian Evidence Act, 1872, Section 86 - Defendants argued that plaintiff produced only an excerpt from the minutes and not a properly certified copy - Court noted this preliminary issue before assessing the merits (Para 9)
C) Civil Procedure - Interim Relief - Attachment Before Judgment - Code of Civil Procedure, 1908, Order 38 Rule 5 - Plaintiff must show prima facie case and defendant's intent to obstruct or delay execution - Court focused on prima facie case based on the strength of the foreign judgment (Paras 7-8)
Issue of Consideration
Whether the plaintiff has made out a prima facie case for attachment before judgment based on a Swiss Court decree; whether the foreign judgment is conclusive under Section 13 CPC; whether exceptions (b), (c), (f) apply; whether the produced document is a certified copy under Section 86 Evidence Act
Law Points
- A foreign judgment from a non-reciprocating territory must be shown conclusive under Section 13 CPC
- Order 38 Rule 5 requires prima facie case and intent to obstruct execution
- a foreign judgment can be challenged on exceptions (b)
- (c)
- (f) including not on merits
- refusal to recognize Indian law
- and sustaining claim founded on breach of Indian law
- production of proper certified copy under Section 86 Evidence Act is necessary
Case Details
2017 LawText (BOM) (08) 48
Notice of Motion No 3578 of 2011 in Suit No. 2540 of 2011
Mr. Zal Andhyarujina, Mr. Kunal Dwarkadas, Ms. Mona Bhide, Mr. Rajesekhar Upadhyaya, Ms. Kanika Gupta instructed by Dave Girish and Co. for Plaintiff; Mr. Mayur Khandeparker, Mr. Dikshat Mehta instructed by Mr. Sanjay Sinha for Defendant No.1; Mr. Cherag Balsara, Mr. Devesh Juvekar, Mr. Mayur Shetty instructed by Rajani Associates for Defendant No.2
Atit Omprakash Agarwal & Anr.
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Nature of Litigation
Suit for enforcement of foreign judgment under Section 13 CPC, with interim application for attachment before judgment.
Remedy Sought
Plaintiff seeks injunction restraining defendants from creating third party rights or parting with possession of properties, and disclosure of assets.
Filing Reason
Defendants had not returned the mistakenly credited USD 500,000, despite a Swiss Court decree.
Previous Decisions
Ex parte ad-interim order dated 18 January 2012 directed defendants to disclose immovable properties and restrained disposal; defendants seek recall.
Issues
Whether the foreign judgment of the Swiss Court is conclusive under Section 13 CPC.
Whether the foreign judgment falls within exceptions (b) (not on merits), (c) (refusal to recognize Indian law), or (f) (sustains claim on breach of Indian law).
Whether the produced document is a properly certified copy under Section 86 of the Indian Evidence Act, 1872.
Whether the plaintiff has a prima facie case for attachment before judgment under Order 38 Rule 5 CPC.
Submissions/Arguments
Plaintiff argued that the Swiss Court judgment was conclusive, not against Indian law, and did not fall within any exception under Section 13 CPC; it was passed after due service and examination of facts.
Defendants argued that the judgment was not on merits, refused to recognize Indian law where applicable, and sustained a claim on breach of Indian law, thus attracting exceptions (b), (c), and (f) of Section 13 CPC.
Defendants further argued that the plaintiff produced only an excerpt from the minutes of the Swiss Court and not a certified copy as required by Section 86 of the Indian Evidence Act, 1872.
Judgment Excerpts
This is a suit based on a foreign judgment under Section 13 of the Code of Civil Procedure.
For any relief to be granted under Order 38 Rule 5, the plaintiff has to make out, firstly, a prima facie case on the merits of the claim and secondly, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is either about to dispose of the whole or any part of his property or to remove the whole or any part of it from the local limits of the jurisdiction of the court.
The Swiss Court is not a court in a reciprocating territory within the meaning of Section 44A of the Code.
In the present case, the contest to the conclusiveness of the foreign judgment is under three exceptions, namely, exceptions (b), (c) and (f).
Procedural History
In November 1999, Southgate Corporate Holdings Limited, represented by Defendant No.2, opened a bank account with the Plaintiff. On 10 September 2001, Defendant No.2 executed a Power of Attorney in favor of Defendant No.1. On 18 September 2001, two credits of USD 500,000 and USD 499,985 were made into the account. The Plaintiff claimed the USD 500,000 credit was mistaken and the Defendants quickly transferred the funds. In September 2003, the error was discovered. After failed attempts to recover the amount, legal notices were sent and a criminal complaint was filed on 8 November 2006 under the Swiss Penal Code. On 21 December 2006, the Plaintiff filed civil proceedings in the District Court of the Republic and Canton of Geneva. The Defendants were served but failed to appear, and on 4 September 2008, an ex-parte decree was passed against them. In 2011, the Plaintiff filed Suit No. 2540 of 2011 in the Bombay High Court for enforcement of the foreign judgment under Section 13 CPC, along with Notice of Motion No. 3578 of 2011 for attachment before judgment. On 18 January 2012, an ex-parte ad-interim order was passed directing disclosure of immovable properties and restraining disposal. Defendant No. 1 filed Notice of Motion No. 314 of 2013 to recall that order and strike off his name. Defendant No. 2 filed Notice of Motion No. 271 of 2014 for recall. The court heard the motions together, focusing on the plaintiff's prima facie case and the conclusiveness of the Swiss Court judgment.
Acts & Sections
- Code of Civil Procedure, 1908: Section 13, Section 44A, Order 38 Rule 5
- Indian Evidence Act, 1872: Section 86
- Swiss Penal Code: Article 141 bis
