Arun Kumar Jagatramka Vs. Ultrabulk A/S – Gujarat High Court

I. Case Reference

Case Citation	:	(2023) ibclaw.in 783 HC
Case Name	:	Arun Kumar Jagatramka Vs. Ultrabulk A/S
Personal Guarantor	:	Mr. Arun Kumar Jagatramka
Corporate Debtor	:	Gujarat (NRE) Coke Ltd.
Appeal No.	:	R/Special Civil Application No. 5509, 17793 and 18079 of 2021 and 18901 of 2022 with Civil Application (For Stay) No. 2 of 2022
Judgment Date	:	22-Sep-23
Court/Bench	:	High Court of Gujarat
Present for Petitioner(s)	:	Mr Percy Kavina, Senior Counsel with Mr Vivek B Gupta
Present for Respondent(s)	:	Mr Devang Nanavati, Senior Counsel with Mr Harsh N Parekh
Coram	:	Mr. Justice Biren Vaishnav and Mr. Justice Devan M. Desai
Original Judgment	:	Download

II. Full text of the judgment

Date : 22/09/2023
CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. Since, the root from which these branches of litigations have grown in all these petitions is with regard to the foreign judgement and decree passed by the High Court of Justice Business and Property Courts of England and Wales, Queens’ Bench Division, Commercial Court, which judgement and decree is sought to be enforced by way of proceedings in the Commercial Court and in such proceedings several orders have been passed, they were heard together. These petitions challenge such different orders below the relevant exhibit applications. Hence, all these petitions are taken up for hearing and are decided by this common judgement.

2. Learned counsel for the respective parties have made their submissions only in context of Special Civil Application No.5509 of 2021 and Special Civil Application No.18901 of 2022. This Court therefore, would deal with the factual and the legal aspects in context of these two petitions.

SCA NO.5509 OF 2021

3. This petition is filed for quashing and setting aside the order dated 29.02.2020 passed below applications Exh.11 and Exh.45 in Commercial Execution Petition No. 161 of 2019 by the Court of the Principal Senior Civil Judge, Jamnagar.

4. Facts in brief are as under:

4.1 Ultrabulk A/S, is a Danish Company engaged in the business of operating and trading ships. It entered into two Cooperation Agreements dated 06.06.2007 and 05.07.2007 with Gujarat (NRE) Coke Limited. Mr. Arun Kumar Jagatramka is the Chairman and Managing Director of Gujarat. By the end of first quarter of 2013, Gujarat (NRE) Coke Limited was indebted to Ultrabulk A/S in the sum of USD 4,259,395. The petitioner Mr. Arun Kumar Jagatramka issued a personal guarantee on 02.07.2013 on behalf of Gujarat (NRE) Coke Limited in favour of Ultrabulk A/S for a sum of USD 4,259,395. The petitioner had agreed that if Gujarat (NRE) Coke Limited would not pay the liabilities by 31^st December 2013, he would on first written demand, pay a sum equivalent to liability plus interest. Ultrabulk A/S demanded the sum of USD 4,259,395 plus interest under the personal guarantee. Mr. Jagatramka has failed to pay any part of that sum. As a result thereof, Ultrabulk A/S (the decree holder-respondent herein) instituted proceedings before the High Court of Justice, Queens’ Bench, Commercial Court of London, U.K., against the petitioner – judgement debtor under the personal guarantee, by issuing a claim form. After exchange of pleadings, the English High Court on 09.11.2017, passed a foreign decree directing the judgement debtor to make payment of the amount as aforesaid in addition to accrued interest to the decree holder.

4.2 The decree holder instituted execution proceedings under Section 44A of the Code of Civil Procedure, 1908 (for short ‘the CPC’), in relation to the foreign decree. On 07.05.2018, the petitioner-judgment debtor filed application Exh.11 resisting the execution of the foreign decree on the grounds that the foreign judgement was not conclusive since it had not been passed in consonance with Section 13 of the Code of Civil Procedure. On 28.01.2020, the judgement debtor filed an application Exh.45 before the Trial Court indicating that since the Court had accepted the judgement debtor’s contention that in absence of general or special permission of the Reserve Bank of India, the judgement debtor is prohibited from remitting any funds. The execution proceedings must be dismissed as the same cannot be executed in India. Both these applications were decided by the order impugned in this petition. The Trial Court on 29.02.2020, rejected applications Exh.11 and Exh.45 regarding the objection of the enforceability as a foreign decree.

5. Mr. Percy Kavina learned Senior Advocate appearing with Mr. Vivek Gupta, learned advocate for the petitioner, in context of this petition, made the following submissions:

5.1 Inviting the Court’s attention to the provisions of Section 13(a) to (f) read with Section 47 of the CPC, Mr. Kavina would submit that the foreign judgement is not conclusive as it has not been given on the merits of the case. He would submit that the judgement debtor is a resident of Kolkata and the alleged personal guarantee has been executed in Australia. The judgement debtor is neither a resident of England nor has any cause of action occurred in England to confer the territorial jurisdiction to the Courts of England.

5.2 That the foreign judgement is not conclusive as the same has not been passed in consonance with Section 13(b) of the CPC, inasmuch as, it has not been given on merits of the case. He would submit that it is an admitted position that Gujarat (NRE) Coke Limited has made a payment of USD 2,452,471 against the applicant’s claim of USD 4,259,395. Despite this fact, the impugned foreign judgement has been passed by failing to appropriate the said amount against the judgement debtor’s personal guarantee. Having received part of the amount, the Court ought to have apportioned the said amount against the amount covered by the personal guarantee.

5.3 That it was the judgement debtor’s defense that the personal guarantee was drafted by the lawyer of the claimant and did not involve any lawyer from his side and therefore, the same cannot be executed.

5.4 That in accordance with Section 13(c) of the CPC, the foreign judgment is not conclusive since it has been passed by refusing to recognize the law of India which is applicable to the facts and circumstances of the case. It was very much apparent that the petitioner could not issue any such personal guarantee as per the relevant provisions of Foreign Exchange Management (Guarantees) (Regulations), 2000 and Foreign Exchange Management Act (FEMA), 1999, without the specific approval / permission of the Reserve Bank of India. Reading the relevant regulations, Mr. Kavina would submit that since no specific prior approval was sought from or granted by the Reserve Bank of India before giving the guarantee, the respondent could not have enforced the personal guarantee. Accordingly, since the impugned foreign judgement and decree has been passed by refusing to recognize the law of India where the provisions of FEMA Act and the Regulations are applicable, the judgement and decree are not conclusive.

5.5 Assailing the foreign judgement in context of Section 13(d) of the CPC, Mr. Kavina would submit that the judgement has been obtained in violation of principles of natural justice. He would submit that it is evident from record that the judgement debtor-petitioner had requested for appearing through video conferencing on 30.10.2017 which was rejected. Hence, the judgement debtor was not given opportunity to defend himself and there was therefore violation of principles of natural justice.

5.6 Inviting the Court’s attention to the provisions of Section 13(f) of the Code, it was Mr. Kavina’s submission that since the petitioner could not have executed the subject personal guarantee on 02.07.2013 without the prior permission of the Reserve Bank of India, the judgement was founded on the breach of the law enforced in India i.e. the FEMA Act and the FEMA Regulations.

5.7 Mr. Kavina would extensively read the judgement of the Foreign Court in context of the examination of an expert witness viz. Mr. Amitava Majumdar who had opined that the relevant regulation does not require that permission be obtained prior to entering into the guarantee. He would submit that the English Court completely ignored the fact that Mr. Amitava Majumdar who had appeared as an expert witness on Indian law before it, had prior to deposing before the Court appeared on behalf of the respondent before the Calcutta High Court in a suit filed by the petitioner. His opinion therefore, was in conflict of interest and not independent. An interested witness who had appeared for the defence could not have been examined.

5.8 Mr.Kavina therefore submitted that the order below Exh.11 and Exh.45 negating the contention raised by the petitioner is contrary to law and therefore the order dated 29.02.2020 of the Principal Senior Civil Judge, Jamnagar, in such proceedings be quashed and set aside.

5.9 In support of his submissions, Mr.Kavina would rely on the following decisions: 

(I) In case of Mannalal Khaitan and others v. Kedarnath Khaitan and others reported in (1977) 2 SCC 424

(II) In case of Algemene Bank Netherland NV v. Satish Dayalal Choksi reported in 1989 SCC Online Bombay 282

(III) In case of Mrs Shobha Vishwanatha v. DP Kingsley reported in (1996) 1 CTC 620

(IV) In case of Noy Vellesena Engineering Spa v. Jindal Drugs Limited reported in 2006 SCC Online Bombay 545

(V) Full Bench decision in case of A. Pleader, Madura in the context of the proprietary of Mr.Majumdar giving evidence as a witness when appearing as a counsel.

(VI) In case of R.K.Agarwal v. Rana Harishchandra Ranjeetsingh and others reported in 1994 Mh.L.J. 186 in context of the proprietary of an advocate appearing as a witness where he has been a counsel for a party. 

6. Mr. Devang Nanavati, learned Senior Advocate appearing with Mr. Harsh Parekh, learned advocate for the respondent would make the following submissions:

6.1 That the Commercial Court at Jamnagar vide order dated 29.02.2020 rightly rejected the objections of the petitioner and held that the foreign decree is enforceable as a decree passed by the Trial Court under Section 44A of the Civil Procedure Code.

6.2 That the scope of examination of this Court is limited to the issue whether the petitioner-judgement debtor makes out any case on any of the grounds mentioned in sub-sections (a) to (f) of Section 13 of the CPC. He would submit that the decree has been obtained after following due judicial process and therefore the Executing Court cannot inquire into the validity, legality or otherwise of the judgement. 

6.3 It is not open for the petitioner to raise a contention regarding the alleged professional misconduct of the decree holder’s expert witness. Taking the Court to the timeline, Mr. Nanavati would submit that in accordance with the provisions of the procedural laws, an ex-parte legal opinion was invited from the counsel of Gujarat (NRE) Coke Limited. On 03.03.2017, the English Court had passed an interim order. Thereafter, since the judgement debtor’s expert witness wrote to the decree holder’s witness that they had no instructions from the Gujarat (NRE) Coke Limited, the Court in accordance with CPR 39.3 examined the expert witness and taking into consideration his opinion, passed the judgement and decree. He would invite the Court’s attention to the declaration of the expert witness of the decree holder disclosing the fact that he had appeared for the decree holder. After the disclosure, the petitioner never objected to the evidence and therefore the right was waived. The expert witness had prepared a report and as per Rule 35.3(2) of the English CPR, it was the duty of the expert to help the Court. Therefore, there was no impropriety in a party being called for an evidence.

6.4 That English High Court whilst passing the foreign decree correctly interpreted the provisions of FEMA and Regulations thereunder. He would submit that by no stretch of imagination can a personal guarantee issued by an Indian Citizen on behalf of an Indian company to a foreigner be equated with an illegal activity. FEMA unlike FERA refers to the Nation’s policy of managing foreign exchange. In case of a particular act violating any provision of FEMA or the Rules framed thereunder, permission of the Reserve Bank of India may be obtained post-facto and the violation can be condoned. 

6.5 Mr. Nanavati would submit that a defense of the kind which the petitioner has made would dissuade foreign commercial entities from relying on the guarantees given by the Indian companies. No case has been made out by the judgement debtor that the foreign decree falls foul of the grounds under Section 13 of the CPC.

6.6 Mr. Nanavati would submit that it is wrong for the petitioner to assume that the English Court had held that the foreign decree cannot be enforced in India and be enforced in other countries. He would submit that the learned counsel for the petitioner had misinterpreted the observations when in fact, such observations merely meant that the decree holder had an option if it so wished to enforce the foreign decree in other countries.

6.7 Mr. Nanavati would submit that the English Court did not commit any error by failing to give credit for the sum of USD 2.3 million. The judgement debtor has wrongfully sought to couch its purported contention that the foreign decree wrongfully construed the personal guarantee as an on-demand bond. If, according to the petitioner, this was an erroneous application of law, there was a right to appeal and this was not a ground on which a foreign decree can be held to be inconclusive under Section 13(b) of the CPC. Reading Section 13(b) of CPC, he would submit that it was not a judgement which was not given on merits because the Court had applied its mind and considered the evidence available. He would invite the attention of the Court to para 3 of the foreign decree wherein consideration of evidence has been considered. In support of his submissions, Mr. Nanavati would rely on the following decisions: 

(I) In case of Vijay Karia and others v. Prysmian Cavi E Sistemi SRL and others reported in (2020) 11 SCC 1 

(II) In case of SRM Exploration Pvt. Ltd. v. N & S & N Consultants S.R.O. reported in 2012 (129) DRJ 113 (DB)

(III) In case of Videocon Industries Limited v. Intesa Sanpaolo S.P.A. reported in 2014 SCC OnLine Bom 1276

SCA NO.18901 OF 2022

7. The prayer in this petition is to quash and set aside an order dated 06.09.2022 passed below Application Exh. 147 in Commercial Execution Petition No.161 of 2019 by the Commercial Court at Jamnagar. The judgement debtor-petitioner had preferred an application Exh.147 before the Executing Court submitting that during the pendency of the Execution Petition, on 08.09.2021, the State Bank of India has filed an application under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 (‘IBC’ for short) before the NCLT against the petitioner. The said proceedings have been registered as CP (IB) No.266 of 2021 on 14.09.2021. It was the case of the applicant-petitioner that in light of the provisions contained in Section 95 and 96 of the IBC, an interim moratorium has commenced from 08.09.2021. It was further the case of the petitioner that since in light of Section 238 of the IBC, the IBC had an overriding effect. Keeping both these provisions in mind, the execution proceedings cannot be continued in view of the interim moratorium and therefore the applicant petitioner prayed before the Executing Court that a formal order staying further proceedings of the Execution Petition be passed, pending admission of CP (IB) No.266 of 2021. By the impugned order, dated 06.09.2022, the Executing Court rejected such application. Hence, the petition. 

8. Mr. Percy Kavina learned Senior Advocate appearing with Mr.Vivek Gupta for the petitioner in context of this petition made the following submissions:

8.1 He would submit that if the case status of the National Company Law Tribunal in the screenshot of the website is seen, which is annexed to the petition, the State Bank of India had filed application initiating insolvency proceedings under Section 95 of the IBC against the petitioner on 08.09.2021. As per Section 96(1)(a) of the IBC, an interim moratorium commences from the date of the application in relation to all the debts of the petitioner and it shall cease to effect on the date of admission of such application. He would therefore submit that the Execution Proceedings, during the pendency of IBC proceedings shall be deemed to be stayed by virtue of the mandate of the IBC.

8.2 Mr. Kavina would submit that on 08.09.2021 on the date when the SBI filed an application, a specific bar by deeming fiction relating to continuation of any legal action commences. Further, Section 238 of the IBC provides that the provisions of this Code shall have effect notwithstanding anything inconsistent therewith.

8.3 Mr. Kavina would submit that since the petitioner was contesting two applications under Sections 10 and 7 of the IBC relating to Gujarat (NRE) Coke Limited and Bharat (NRE) Coke Limited, the petitioner was under the bona-fide impression that the moratorium relating to personal insolvency proceedings will commence after admission of CP by the NCLT, Kolkata. The petitioner was unaware that unlike as in the case of Corporate Insolvency Resolution Process, wherein a moratorium under Section 14 of the IBC is declared only after the admission of the petition in case of Personal Insolvency Resolution Process an interim moratorium automatically kicks in on filing of a petition under Section 95 of the IBC.

8.4 Mr. Kavina would submit that the learned Trial Judge had reserved orders on application Exhs. 90, 92 and 94 on 18.09.2021. Since the order below Exh.94 was challenged by filing SCA No.17965 of 2021 and the modified order was challenged by SLP which was dismissed from 07.03.2022, it was only thereafter that the present application was filed.

8.5 As far as challenge to the vires of the provisions relating to personal insolvency contained in IBC before the Calcutta High Court where the Court has been pleased to stay further proceedings in the NCLT is concerned, he submitted that, that itself cannot be a factor against the petitioner as the petitioner has a fundamental right to assail the validity of the provisions. 

8.6 Mr. Kavina would assail the findings arrived at in the order dated 06.09.2022 by relying on the following decisions:

(I) In case of Axis Trustee Services Limited v. Brij Bhushan Singal and Another reported in 2022 SCC OnLine Del 3634

(II) In case of Stichting Doen-postcode Loterij v. Vin Poly Recyclers Pvt. Ltd. & Ors. reported in 2010 (115) DRJ 708 (DB)

9. Mr. Devang Nanavati learned Senior Advocate appearing with Mr.Harsh Parekh for the respondent would make the following submissions:

9.1 He would submit that the High Court cannot take a judicial cognizance of the personal insolvency proceedings against the judgement debtor when they have been stayed at the instance of the petitioner by the Calcutta High Court. The petitioner after having elected to and obtained an order from the Calcutta High Court staying the personal insolvency proceedings against him, now cannot be allowed to approbate and reprobate by taking benefit of such proceedings.

9.2 A coordinate bench of this Court vide order dated 15.12.2022 in MCA No.1 of 2022 in Special Civil Application No.17965 of 2021 has not granted the judgment debtor / petitioner to reargue the same contentions which he had raised in the MCA.

9.3 Mr. Nanavati would further submit that the doctrine of constructive resjudicata would bar the judgement debtor from taking a plea of Section 96 of IBC. By his conduct, between 20.09.2021 and 10.03.2022 in proceedings before the Trial Court, this Court and the Supreme Court, the petitioner has waived his statutory right under Section 96 of the IBC. Mr. Nanavati would in this respect refer to a brief chronology of dates and events necessary for the examination of the issue at hand.

9.4 Elaborating on these contentions, Mr. Nanavati would submit that Section 96(1)(A) of the IBC only provides for an interim moratorium. IBC talks of reorganization and insolvency resolution in a time bound manner. If the contention of the decree holder is accepted the same would lead to an absurd scenario wherein, there would be a stay on his personal insolvency proceedings as well as stay of execution proceedings.

9.5 Mr. Nanavati submits that the petitioner has obtained a stay order on 15.06.2022 from the Calcutta High Court. In these circumstances, the judgement cited by the learned advocate in the case of Stichting Doen-postcode Loterij (supra) will not apply.

9.6 The act of having elected to obtain an order from the Calcutta High Court amounts to blowing hot and cold. On the one hand, the petitioner is taking shelter under Section 96 of the IBC for not complying with the order of furnishing bank guarantee and on the other itself challenging the validity of the Code. 

9.7 Referring to paras 6 to 11 of MCA No.1 of 2022, Mr. Nanavati would submit that the petitioner relinquished his challenge and therefore the petition so filed would be barred by constructive resjudicata.

9.8 Mr. Nanavati would submit that if the conduct of the petitioner between 20.09.2021 and 10.03.2022 is seen, it is apparent that the petitioner waived his right. The interest of the petitioner is diametrically opposite to that of his creditors. Mr. Nanavati would submit that the judgement debtor petitioner is guilty of abuse of process of Court and is guilty of interference in the administration of justice. This Court in exercise of powers under Article 227 of the Constitution of India must not entertain this petition. Mr. Nanavati would distinguish the judgement cited by the learned counsel for the petitioner and submit that the petition deserves to be dismissed.

9.9 In support of his submissions, Mr.Nanavati would rely on the following decisions:

(I) In case of Vijay Karia and others v. Prysmian Cavi E Sistemi SRL and others reported in (2020) 11 SCC 1

(II) In case of Rahul S. Shah v. Jinendra Kumar Gandhi and others reported in (2021) 6 SCC 418

(III) In case of Cauvery Coffee Traders, Mangalore v. Hornor Resourcers (International) Company Limited reported in (2011) 10 SCC 420

(IV) In case of Forward Construction Co. and others reported in (1986) 1 SCC 100

(V) In case of Shiv Chander More and others reported in (2014) 11 SCC 744

(VI) In case of Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited and others reported in (2022) 2 SCC 221

(VII) In case of Maharashtra State Road Transport Corporation v. Shri Balwant Regular Motor Service, Amravati and others ETC. reported in (1969) 1 SCR 808

(VIII) In case of Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and others reported in AIR 1967 SC 1450

(IX) In case of Sarguja Transport Service v. State TransportAppellate Tribunal, M.P. Gwalior and others reported in (1987) 1 SCC 5

(X) In case of Babulal Badriprasad Varma v. Surat Municipal Corporation and others reported in (2008) 12 SCC 401

(XI) In case of Alcon Electronics Private Limited v. Celem S.A. of FOS 34320 Roujan, France and Another reported in (2017) 2 SCC 253

(XII) In case of Udyami Evam Khadi Gramodyog Welfare Sanstha and another v. State of Uttar Pradesh and others reported in (2008) 1 SCC 560

(XIII) In case of Advocate-General, State of Bihar v. M/s. Madhya Pradesh Khair Industries and Another reported in (1980) 3 SCC 311

ANALYSIS IN SPECIAL CIVIL APPLICATION NO.5509 OF 2021

10. At the cost of reiteration, what is under challenge in this petition is an order below Exh.11 and Exh.45 by which the petitioner’s applications objecting to the conclusiveness of the foreign judgement and request for declaring that the judgement and decree as not enforceable in India have been dismissed. The case of the petitioner is that the judgement and decree fails the test of Section 13(a) to (f) of the Code of Civil Procedure. For the purposes of this judgement, Section 13 of the CPC is reproduced as under:

“Section 13. When foreign judgment 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 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].

11. The Trial Court in rejecting the application held thus:

(a) To the contention that the judgement and decree are not pronounced by a Court of competent jurisdiction, the Trial Court held that it was argued as per the relevant clause of personal guarantee, that the guarantee shall be governed exclusively by English Law and the English Courts shall have exclusive jurisdiction over all or any disputes arising out of or in relation to this guarantee. Considering the provisions of Section 44A of the CPC dealing with enforcement of decree passed by Courts in reciprocating countries, the contention of the petitioner is unjustified. Section 44A of the Code of Civil Procedure, reads as under:

44A. 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 3 [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 penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]]

At the outset, on the scope of inquiry and examination of the Court, the Supreme Court in the case of Alcon Electronics Private Limited (supra) held as under:

“14. A plain reading of section 13 CPC would show that to be conclusive an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case. When once these requirements are fulfilled, the executing Court cannot enquire into the validity, legality or otherwise of the judgment.

15. A glance on the enforcement on the foreign judgment, the position in common law is very clear that a foreign judgment which has become final and conclusive between the parties is not impeachable either on facts or law except on the limited grounds enumerated under section 13 CPC. In construing Section 13 CPC we have to look at the plain meaning of the words and expressions used therein and need not look at any other factors.” 

(b) On the conclusion that the judgement failed to appropriate the amount already paid by the Gujarat NRE Coke Ltd and that the personal guarantee was defeated by the claimant’s lawyer, the Trial Court based on the reasonings of the foreign judgement held that the personal guarantee of the petitioner was not coextensive with that of Gujarat NRE but an independent one which was therefore a primary responsibility of the judgment debtor. The foreign judgement on the question of this issue considered the personal guarantee and the relevant clauses thereof and held as under:

“15. It is necessary to set out the terms of the Personal Guarantee. They are as follows:

“To: Ultrabulk A/S (hereinafter referred to as ‘Beneficiary’)

WHEREAS I,

Mr Arun Kumar Jagatramka (hereinafter referred to as the ‘Guarantor’) … am aware of the Joint Venture Agreement between the Beneficiary and Gujarat NRE Coke Limited (‘Gujarat’) dated 6 June 2007 and 5 July 2007 (‘the Agreements’)

I am also aware of the liability due on date, i.e. USD4,259,395/- to the Beneficiary by Gujarat under the Agreement (the ‘Gujarat Liabilities’).

NOW, therefore, I, the Guarantor, hereby unconditionally and irrevocably guarantee that, if for any reason Gujarat do not repay the Gujarat Liabilities latest by 31 December 2013 then I will on the Beneficiary’s first written demand from the Beneficiary, pay a sum equivalent to the Gujarat Liabilities plus the interest based on annual Libor plus 2% to the Beneficiary. 

…

This Guarantee shall be governed exclusively by English law and the English Courts shall have exclusive jurisdiction over all and any disputes arising out of or in relation to this guarantee. I irrevocably confirm that I will not contest and/or defend any application and/or proceedings to enforce this Personal Guarantee in England and Wales or elsewhere including (but not limited to) India and Australia and the Beneficiary shall be entitled to immediate judgment should payment not be made hereunder upon the Beneficiaries first written demand. No issue shall be taken as to jurisdiction and/or enforceability of this Personal Guarantee.”

16. There is no dispute that Gujarat did not pay the Gujarat Liabilities, namely, US$4,259,395 by 31 December 2013. The question which arises is whether, in that event, on the true construction of the guarantee Mr. Jagatramka is obliged to pay a sum equivalent to US$4,259,395 or that sum, less US$1.95 million. That depends upon whether the guarantee provides for a primary liability arising upon demand or whether the guarantee is a true guarantee which provides for a secondary liability in the sense that the guarantor’s liability mirrors the liability of the principal debtor. Whilst there is authority for the proposition that there is a presumption against construing an instrument as an on demand bond where it is not given by a bank or other financial institution (see Autoridad del Canal de Panama v Sacyr SA [2017] EWHC 2228 at paragraph 81(4) per Blair J.) there is no doubt, in my judgment, that the instrument signed by Mr. Jagatramka provided for an on demand bond and that if such demand was validly made Mr. Jagatramka was bound to pay “a sum equal to US$4,259,395”, not such sum as Gujarat was in fact liable to pay at that time. The following parts of the guarantee lead to that conclusion:

i) Mr. Jagatramka agreed to pay “a sum equivalent to” the “Gujarat Liabilities” which were defined as being US$4,259,395. Mr. Jagatramka did not agree to pay a sum of money to be determined by reference to Gujarat’s actual liability at the material time.

ii) He “unconditionally and irrevocably” guaranteed that if Gujarat did not pay the Gujarat Liabilities by 31 December 2013 he would, on demand, pay a sum equivalent to the Gujarat Liabilities. Such language is indicative of a primary liability.

iii) He “irrevocably confirms that he will not contest and/or defend any application and/or proceedings to enforce” the guarantee. Again, such language is consistent with a primary liability and inconsistent with his liability being coextensive with that of Gujarat. 

17. Mr. Stevenson had two alternative arguments in the event that the court did not accept that Mr. Jagatramka was liable, pursuant to the guarantee, to pay a sum equal to the Gujarat Liabilities, namely, US$4,259,395. The first alternative argument was if Mr. Jagatramka’s liability was coextensive with Gujarat’s liabilities then those liabilities were those which arose under the Cooperation Agreements which currently exceed US$20 million. If that were wrong and Mr. Jagatramka’s liability was coextensive with Gujarat’s liability under the Deed of Agreement then the further alternative argument is that, having regard to the manner in which sums paid by Gujarat were appropriated, both by Ultrabulk and Gujarat, the liability of Mr. Jagatramka is in fact US$3,259,492.43. This further alternative argument is explained in a supplementary skeleton argument which I asked Mr. Stevenson to provide. It is to be noted that Mr. Stevenson and those instructing him very properly reviewed the documentation and concluded that the sums paid by Gujarat in fact totalled US$2,452,471 (rather more than Mr. Jagatramka said had been paid) and further that by an email dated 9 July 2013 from Mr. Saigal some US$499,975 had been appropriated to the sums due under the Deed of Agreement.”

The reasoning of the foreign judgement would indicate that the Court held that the instrument signed by the petitioner provided for an on demand bond and if such demand was validly made, the petitioner was bound to pay “a sum equal to USD 4,259,395”. The court, as is evident from para 16 of the judgement, interprets the relevant clauses of the guarantee in coming to such conclusion. What is evident on examining this contention is the ground so raised can only be taken to assail the foreign judgement on merits in an appeal to the Court of Appeal in the UK. An erroneous application of law cannot be a ground so as to say that it was a failure to render the judgements on the merits of the case. This Court cannot sit in appeal over a Foreign Decree passed by the English Court as the same as rightly contended by the respondent’s counsel amounted to going behind the decree. Once the Court has applied its mind and considered the evidence made available, it cannot be said that there was no adjudication on merits. Reading the foreign judgement indicates that it has considered the following evidence: 

“16.1 Oral evidence from Mr. Olesen, the Executive Vice President of the Decree Holder;

16.2 Oral evidence from Mr. Clulow, a partner at Reed Smith, the Decree Holder’s Solicitors;

16.3 Witness statement of Mr. O’Neil, a former partner at Reed Smith; the Decree Holder’s Solicitors;

16.4 Expert evidence of Indian law was adduced from Mr. Majumdar, an Indian lawyer, who gave evidence by video link from India;

16.5 Witness Statement of Mr. Saigal, a broker, who attended the negotiations leading to the Personal Guarantee/ On-Demand Bond with the Judgment Debtor;

16.6 The opinion rendered on Indian law by Ms. Batra on behalf of the Judgment Debtor;

17. It is pertinent to note that the Foreign Decree lists out the 7 defences which the Judgment Debtor seeks to take in relation to his liability under the Personal Guarantee/ On-Demand Bond and thereafter provides coherent reasons for rejecting such a defence.” 

(c) On the contention that the personal guarantee was drafted by the claimant’s lawyer and therefore bad, the relevant paragraph of the foreign judgement, reads as under:

“5. It may be the case that Mr. Jagatramka did not employ lawyers to draft the guarantee but the correspondence makes clear that he was given the opportunity to do so. Mr. Saigal, the broker acting on behalf of Mr. Jagatramka, has stated that at a meeting at Ultrabulk’s lawyers, Reed Smith, on 20 June 2013 it was provisionally agreed that Mr. Jagatramka would provide a guarantee. Following that meeting Reed Smith invited him to provide a draft. On 23 June 2013 Reed Smith said that unless a draft was received the next day they would draft the guarantee. Mr. Saigal wrote saying that Mr. Jagatramka “has been discussing internally and with his legal people”. But no draft was provided and so Reed Smith provided a draft on 24 June 2013.

6. There then followed a period of negotiation at the end of which the guarantee was signed. 6. There is nothing which would give rise to a defence in the circumstance that Mr. Jagatramka did not employ lawyers and signed the guarantee which had been drafted by Ultrabulk’s lawyers as they had taken into account points made on behalf of Mr. Jagatramka in the course of the negotiations. There is nothing which could vitiate his consent to the guarantee.” 

(d) It is necessary to see the exercise undertaken by the parties preceding this final draft from the list of dates given by the learned counsel for the respondent.

(e) We may also consider these dates and events while considering the challenge with regard to the deposition and credibility of evidence of the expert witness. We may therefore deal with the submissions in context of this challenge. Reading the judgement of the foreign Court, it was contended that the examination of an expert witness, Mr.Amitava Majumdar could not have been taken into consideration as the Court completely ignored the fact that Shri Majumdar had appeared for the respondent before the Calcutta High Court. Several decisions were cited by the learned counsels for the respective parties. Let us first see the chronology as unfolding in this context. 

1	1st Mar. 2017	An ex parte Legal Opinion issued by by Ms. Rimali Batra of DSK Legal to Gujarat NRE (“Ex Parte Legal Opinion”) had been filed by the Judgment Debtor in the proceedings before the English High Court, UK.
2	3rd Mar. 2017	English High Court, UK passes a directional order holding as follows: “4. Each party shall have permission to adduce expert evidence as follows: Expertise: Indian Law Issues to be covered: Those aspects of Indian law which are relied upon by the Defendant in support of his case that the Personal Guarantee is void and/or invalid and/or unenforceable. 5. Signed reports of experts of like disciplines shall be exchanged simultaneously by 4 PM on 27 March 2017. 6. Experts of like disciplines shall hold discussions for the purpose of identifying the issues between them and shall prepare a joint written statement by 4 PM on 10 April 2017 identifying the issues (if any) on which they disagree and a brief summary of the reasons for their disagreement.”
3	27th Mar. 2017	Expert Witness Report on Indian law prepared by one Mr. Amitava Majumdar, Partner of Bose & Mitra & Co (“Decree Holders Expert Witness”) in the form of Letter dated 27th March 2017 placed by the Decree Holder before the English High Court, UK which inter alia stated in paragraph 6: “6. At the outset, I would like to disclose the fact that I have appeared on behalf of Ultrabulk Shipping A/S and Ultrabulk A/S in the proceedings filed by Mr. Arun Kumar Jagatramka before the Calcutta High Court. I understand that I am proffering evidence in the capacity of an expert and not as a witness for a party. Furthermore, my attention has been drawn to part 35 of the Civil Procedure Rules of England and Wales, the practice directions framed thereunder and the ‘Guidance for the Instruction of Experts in Civil Claims’ which I have read and understand. I further understand that I have an overriding duty to held the English High Court impartially and independently on matters relevant to my area of expertise. To the best of my knowledge, I have discharged this paramount duty towards the English High Court.”
4	12th Apr. 2017	Decree Holders Expert Witness writes to Ms. Rimali Batra of DSK Legal the individual who issued the Ex Parte Legal Opinion on the modalities of complying with the directional order dated 3rd March 2017 passed by the English High Court, UK wherein the expert witness of both parties would have to prepare a joint report identifying the issues on which they disagree on and a summary of the reasons for their disagreement.
5	27th Apr. 2017	Decree Holders Expert Witness writes to Ms. Rimali Batra of DSK Legal the individual who issued the Ex Parte Legal Opinion on seeking a reply his earlier email message dated 12th Apr. 2017.
6	28th Apr. 2017	Ms. Rimali Batra of DSK Legal the individual who issued the Ex Parte Legal Opinion writes to the Decree Holders Expert Witness inter alia stating: “We acknowledge receipt of your e-mails dated 12.04.2017 and 27.04.2017. Please note that we have no instructions from Gujarat NRE on the subject issue. We have, in a timely manner, appraised Gujarat NRE about both your e-mails. We will write to you, as soon as we have any intimation from Gujarat NRE.”
7	9th Oct. 2017	The Decree Holder’s lawyers had written to the Judgment Debtor in relation to the pre-trial formalities and inter alia stated as follows: “We repeat that it is important that you cooperate and reply to us urgently: (a) letting us know whether you will be calling witnesses of fact and/or expert witnesses to give oral evidence at the trial and, if so, confirm their identity; and (b) confirming whether you will have legal representation at the trial or whether you will attend the hearing as a litigant in person.”
8	30th Oct 2017	Hearing before the English High Court, UK during which the examination in chief of the Decree Holder’s expert witness on Indian law, Mr. Amitava Majumdar had taken place by video conference wherein the judgment of the Bombay High Court in the case of POL India Projects Limited v. Aurelia Reederi Eugern Friederich, Arbitration Petition No. 76 of 2012 was discussed, the examination in chief of the Decree Holder’s witness of fact Mr. Hans Christian Olesen had taken place, the examination in chief of the solicitor of the Decree Holder Mr. Jeb Anthony Clulow also took place.

(f) The Civil Procedure Rules, 1998 of Supreme Court of England and Wales County Courts, particularly Rule 35 (Rule 35.1 to 35.7 and 35.10 to 35.11 and 35.13) read as under:

“Duty to restrict expert evidence

35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Interpretation

35.2 A reference to an “expert” in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.

Experts—overriding duty to the court

35.3—

(1) It is the duty of an expert to help the court on the matters within his expertise.

(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

Court’s power to restrict expert evidence

35.4—

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When a party applies for permission under this rule he must identify—

(3) If permission is granted under this rule it shall be in relation only to the expert named or the field identified under paragraph (2).

(4) The court may limit the amount of the expert’s fees and expenses that the party who wishes to rely on the expert may recover from any other party.

General requirement for expert evidence to be given in a written report

35.5—

(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) If a claim is on the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Written questions to experts
35.6

(1) A party may put to-

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7, written questions about his report.

(2) Written questions under paragraph (1)-

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report ; and

(c) must be for the purpose only of clarification of the report.

Unless in any case,

(i) the court gives permission; or

(ii) the other party agrees.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

(4) Where-

(a) a party has put a written question to an expert instructed by another party in accordance with this rule; and

(b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert-

(i) that the party may not rely on the evidence of that expert; or

(ii) that the party may not recover the fees and expenses of that expert from any other party.

Court’s power to direct that evidence is to be given by a single joint expert
35.7—

(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to given by one expert only.

(2) The parties wishing to submit the expert evidence are called “the instructing parties”.

(3) Where the instructing parties cannot agree who should be the expert, the court may— direct that the expert be selected in such other manner as the court may direct

Contents of report
35.10—(1)An expert’s report must comply with the requirements set out in the relevant practice direction.

(2) At the end of an expert’s report there must be a statement that—

(a) the expert understands his duty to the court; and

(b) he has complied with that duty

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions—

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete. unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.

Use by one party of expert’s report disclosed by another

35.11 Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.

…

Consequence of failure to disclose expert’s report
35.13 A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.”

(g) Perusal of chronology of dates, events and excerpts of exchanges between the parties indicate that such procedure as is envisaged in the relevant rules so prescribed are followed. Even otherwise this was an issue relating to the merits of the issue. The expert witness Mr. Amitava Majumdar had in the form of a letter dated 27.03.2017 made a declaration which reads as under: 

“6. At the outset, I would like to disclose the fact that I have appeared on behalf of Ultrabulk Shipping A/S and Ultrabulk A/S in the proceedings filed by Mr. Arun Kumar Jagatramka before the Calcutta High Court. I understand that I am proffering evidence in the capacity of an expert and not as a witness for a party. Furthermore, my attention has been drawn to part 35 of the Civil Procedure Rules of England and Wales, the practice directions framed thereunder and the ‘Guidance for the Instruction of Experts in Civil Claims’ which I have read and understand. I further understand that I have an overriding duty to held the English High Court impartially and independently on matters relevant to my area of expertise. To the best of my knowledge, I have discharged this paramount duty towards the English High Court.”

This disclosure in our opinion clearly demonstrates that only after the evidence was recorded and a finding has been arrived at on this basis, has the petitioner sought to object. At no stage of the trial or during its course, did the petitioner take objection on this which evidently indicates that he waived his rights. The petitioner chose not to cross examine the expert witness despite the judge posing questions to the expert witness. What is evident from the reproduction of the CPR and the events is that the decree holder’s witness did contact the expert witness of the petitioner Ms. Rimali Batra of DSK Legal on the issue of preparing a joint report setting out the points which they agree and/or disagree but Ms.Batra informed the decree holder’s witness that she had no instructions. What is also evident from reading the CPR especially Clause 35.2 that unlike the submission of Shri Kavina citing instance of advocates of parties appearing as witnesses, this was a case where the concerned person is examined in the role of an expert to advance and assist the Court which does not possess the relevant skill and experience in determining where the truth lies. 

(h) On the contention that the English Court while passing the Foreign Decree failed to interpret the provisions of the Foreign Exchange Management Act (FEMA) and the regulations and hence the findings were on the face of the proceedings to be founded on an incorrect view, the Foreign Court on interpretation of the Regulations held as under: 

“Issue II (d) Would the guarantee be invalid if both sides were aware that the guarantor did not have approvals?

31. As stated earlier the requisite approvals can be obtained from by the Guarantor from the RBI even after the guarantee has been issued per Life Insurance Corporation of India Vs. Escorts Ltd. (1986) 1 SCC 264 as followed in Vitol S.A. v. Bhatia International Limited (2015) 1 Bom CR 100 and Texmaco Ltd.v. Deputy Director, Enforcement Directorate, 1997 Company Cases Vol. 88 Pg. 228. It follows that a guarantee will not be invalid even if both sides are aware that the guarantor does not have the requisite approvals when it is executed.

Issue III – What would be the ramifications of a personal guarantee being issued by an Indian entity / citizen in favor of a foreign company for and on behalf of and Indian company if the same has been executed in Australia as opposed to India ?

32. I do not believe that the location of execution of the personal guarantee is relevant as long as the guarantor is a person resident in India. I am, however, of the opinion that the FEMA regime would not be triggered in an event there is no outflow of foreign exchange out of India or foreign exchange is not being repatriated out of India. In light of the same, In an event the Indian citizen has a bank account in Australia and makes payment to the foreign entity from the bank account in Australia the FEMA regime would not be triggered in the first place. That said, section 8 of the FEMA Act provides as follows:

8. Realisation and repatriation of foreign exchange.—Save as otherwise provided in this Act, where any amount of foreign exchange is due or has accrued to any person resident in India, such person shall take all reasonable steps to realise and repatriate to India such foreign exchange within such period and in such manner as may be specified by the Reserve Bank. — Save as otherwise provided in this Act, where any amount of foreign exchange is due or has accrued to any person resident in India, such person shall take all reasonable steps to realise and repatriate to India such foreign exchange within such period and in such manner as may be specified by the Reserve Bank.”

33. In exercise of its powers under the section 8 of the FEMA Act, the RBI issued Notification No.FEMA 9/2000-RB dated 3 May 2000 which provided as follows:

3. Duty of persons to realise foreign exchange due :

A person resident in India to whom any amount of foreign exchange is due or has accrued shall, save as otherwise provided under the provisions of the Act, or the rules and regulations made thereunder, or with the general or special permission of the Reserve Bank, take all reasonable steps to realise and repatriate to India such foreign exchange, and shall in no case do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing –

(a) that the receipt by him of the whole or part of that foreign exchange is delayed; or

(b) that the foreign exchange ceases in whole or in part to be receivable by him. 

34. I am of the opinion that the aforesaid provisions may perhaps have extremely limited application in situations of a transaction entered into by an Indian party with a foreign party outside India which although does not have the effect of repatriating foreign exchange out of India creates an impediment to foreign exchange being repatriated into India. That said, the Bombay High Court in the case of Vitol S.A. v. Bhatia International Limited, (2015) 1 Bom CR 100 in its interpretation of section 8 of FEMA Act and Notification No.FEMA 9/2000-RB dated 3 May 2000 expressed the opinion that these provisions would only be triggered when Indian citizens/company stash funds out of India or secrete or divert foreign exchange payable to the Indian citizen/ company.”

(i) Reading the aforesaid extract indicates that in the context of the opinion of the expert, it is evident that the FEMA regime was brought in to amend the Foreign Exchange Regulation Act, 1973 (FERA). Section 6 of the FEMA Act reads as under: 

“6(3) “Without prejudice to the generality of the provisions of sub-section (2), the Reserve Bank may, by regulations, prohibit, restrict or regulate the following –

(j) giving of a guarantee or surely in respect of any debt, obligation or other liability incurred

(i) by a person resident in India and owned to a person resident outside India; or

(j) Regulation 3 of the Guidelines and Foreign Exchange Management (Guarantees) Regulation, 2000 reads as under:

“3. Prohibition

Save as otherwise provided in these regulations or with the general or special permission of the Reserve Bank, no person resident in India shall give a guarantee or surely in respect of, or undertake a transaction, by whatever name called, which has the effect of guaranteeing, a debt, obligation or other liability owed by a person resident in India to, or incurred by, a person resident outside India.”

(k) Interpreting this provision, the Court held that the permission need not be obtained in advance of the guarantee being given. Providing of a personal guarantee without first obtaining permission is not itself a breach of FEMA. Post-facto permission can be obtained. Even otherwise as observed, and in our opinion rightly so, relying on a decision of the Bombay High Court in the case of Noy Vellesena Engineering Spa v. Jindal Drugs Limited (supra), the Court held that a party cannot take advantage of his own wrong. Paras 22, 23 and 24 of the foreign judgement read as under:

“22. It is also important to note that FEMA does not invalidate a guarantee that has been provided without permission. The Indian Courts have come down heavily upon parties seeking to raise self-serving and dishonest pleas by taking advantage of their own wrongs in failing to obtain requisite RBI approvals as contemplated under the FEMA regime to wriggle out of liabilities arising out of contracts with foreign parties. The Bombay High Court in the case of Noy Vallesina Engineering SpA A v. Jindal Drugs Limited, Notice of Motion No. 826 of 2006 in Arbitration Petition No. 156 of 2005, 2006 (3) Arb LR 510 (Bom) (“Noy Vallesina”) held that a party cannot take advantage of his own wrong by not applying for FEMA permission and thereafter allege that the foreign award is against the public policy of India as the necessary FEMA permission has not been obtained. In its judgment in that case the Bombay High Court made the below observation: 

“13…It is clear from the above quoted paragraphs of the judgment of the Supreme Court that an award cannot be set aside because at the time of entering into the contract, permission of the Reserve Bank of India was not obtained. If such a permission is necessary, it can be obtained by the party concerned before he receives actual payment. The contention, therefore, has no force and is, therefore, rejected. I have not been pointed out any law which prevents the arbitral tribunal from making an award for payment of money to a foreigner pursuant to a contract, which has not been approved by the R.B.I. In the absence of any such provision, no fault can be found with the award on this count.”

23. This point was also made by the High Court at Goa in the case of SJJ Marine Pte Ltd v. Pisces Exim (India) Private Limited, Company Petition No. 10 of 2013 and by the Division Bench (Appeal Court) of the Bombay High Court in the case of Videocon Industries v. Intesa Sanpaolo SPA (Appeal (L) No. 29 of 2014 in Company Petition No. 528 of 2012); 2014 SCC OnLine Bom 1276 in which it rejected the contention that a guarantee given by an Indian party was unenforceable and expressed the opinion that such an alibi if given judicial recognition would “dissuade foreign commercial entities from relying upon guarantees given by Indian companies which would ultimately undermine the role of India in the world of trade and commerce.” 

24. I have been personally involved in the case of POL India Projects Limited v. Aurelia Reederei Eugen Friederich GMBH Schiffahrtsgesellschaft & Company KG (2015) 7 Bom CR 757 (“POL India”) where the Bombay High Court held that a performance guarantee issued by an Indian shipbroker to guarantee the obligations of a Dubai based charter under a voyage charterparty was enforceable as a matter of Indian law despite the fact that the Indian shipbroker did not obtain permission from the RBI at any point of time. In that case, the Bombay High Court once again quoted with approval the propositions of law laid down by the aforesaid judgments. The Bombay High Court in POL India made the below observation:

“159. Delhi High court in case of SRM Exploration Pvt.Ltd. has dealt with the provisions of FEMA, 1999 including section 3 and has held that there was no provision voiding the transaction in contravention thereof. Delhi High Court has also referred to Section 47 of FERA 1973 which prohibited from entering into contract agreement directing or indirectly for operation of the said Act or any provisions thereof. It is held by Delhi High Court that the legislature while reenacting the law on the subject has chosen to do away with such a provision which shows a legislative intent to not void the transaction even if in violation of the said Act. I am in respectful agreement with the view expressed by Delhi High Court in case of SRM Exploration Pvt.Ltd. (supra). Delhi High Court in the said judgment has held that the world is a shrinking place today and commercial transactions spanning across borders abound. The court was of the opinion that if the court is dissuaded for the reason of the transaction for which the parties had stood surety/guarantee being between foreign companies, the court would be sending a wrong signal and dissuading foreign commercial entities from relying on the assurances/guarantees given by Indian companies and which would ultimately restrict the role of India in such international commercial transactions. I am in respectful agreement with the views expressed by the Delhi High Court. In my view the petitioner not having raised any objection about the validity and enforcement of such guarantee at any point of time before filing objection before the learned arbitrator and had acted upon such guarantee, if such objection is allowed to be raised at such belated stage, it will be contrary to the principles laid down by the Supreme Court and by Delhi High Court. I am thus not inclined to accept this submission of the learned counsel for the petitioner.” 

(l) The Division Bench of the Delhi High Court in the case of SRM Exploration(supra) in Para 12 observed as under:

“12. We have perused the provisions of FEMA, 1999 Section 3 thereof prohibits dealing in or transferring of any foreign exchange save as otherwise provided therein or under the Rules & Regulations framed thereunder without general or special permission of RBI. We are unable to find any provision therein voiding the transactions in contravention thereof. We may mention that the predecessor legislation to FEMA namely FERA 1973 vide Section 47 prohibited entering into any contract or agreement directly or indirectly evading or avoiding any operation of the said Act or any provision thereof. However Sub Section (3) thereof also provided that such prohibition shall not prevent legal proceedings being brought in India for recovery of a sum which apart from the provision of FERA would be due. However the legislature while re- enacting the law on the subject has chosen to do away with such a provision. We are of the view that the same shows a legislative intent to not void the transaction even if in violation of the said Act. Thus we are of the opinion that the plea of the appellant Company in this regard is without any force.” 

(m) Even the Bombay High Court in the case of Videocon Industries Limited (supra) has held that accepting such a dishonest plea of Indian parties to avoid liabilities on the pretext of violation of FEMA would send a wrong signal to foreign investors.

“41. In any view of the matter, it is also necessary to know that Videocon had never contended in any of its correspondence between 2007 till giving reply to the statutory notice that the Patronage Letter was issued in contravention of the provisions of FEMA or in breach of any other legal requirements. The defence is, therefore, raised for the first time only after receiving statutory notice i.e. after almost four years of issuance of the Patronage Letter. Assuming that Videocon have committed any wrong in issuing the Patronage Letter without obtaining permission of the Reserve Bank, as per the settled legal position, it is not open to a party to take advantage of its own wrong. In Eurometal Ltd. v. Aluminium Cables and Conductors (U.P) Pvt. Ltd.), [(1983) 53 Comp Cas 744 Cal and SRM Exploration Pvt. Ltd. v. N & S & N Consultants S.R.O, [(2012) 4 Comp LJ 178 (Del)], Calcutta and Delhi High Courts respectively have frowned upon company facing a winding up petition taking up such dishonest defence. In these decisions High Courts have taken the view that in matters of commercial transactions involving crores of amount where the company facing winding up proceedings had stood a guarantor, if any such defence were to be accepted, we would be giving a wrong signal and dissuading foreign commercial entities from relying on the guarantees given by Indian Companies and which would ultimately undermine the role of India the world of trade and commerce. We could not agree less.” 

(n) Even the Hon’ble Supreme Court in the case of Vijay Karia and others (supra) held that transactions in FERA would render a transaction void in absence of following the provisions but such violation under the FEMA would not render the transaction void.

“87. Before answering this question, it is important to first advert to the decision of the Delhi High Court in Cruz (supra). The learned Single Judge was faced with a similar problem of a foreign award violating the provisions of FEMA. In an exhaustive analysis, the learned Single Judge referred to Renusagar (supra) and then held:

102. Although, this contention appears attractive, however, fails to take into account that there has been a material change in the fundamental policy of exchange control as enacted under FERA and as now contemplated under FEMA. FERA was enacted at the time when the India’s economy was a closed economy and the accent was to conserve foreign exchange by effectively prohibiting transactions in foreign exchange unless permitted. As pointed out by the Supreme Court in Life Insurance Corporation of India v. Escorts Ltd. (supra), the object of FERA was to ensure that the nation does not lose foreign exchange essential for economic survival of the nation. With the liberalization and opening of India’s economy it was felt that FERA must be repealed. FERA was enacted to replace the Foreign Exchange Regulation Act, 1947 which was originally enacted as a temporary measure. The Statement of Objects and Reasons of FERA indicate that FERA was enacted as the RBI had suggested and Government had agreed on the need for regulating, among other matters, the entry of foreign capital in the form of branches and concerns with substantial non- resident interest in them, the employment of foreigners in India etc.

110. The contention that enforcement of the Award against Unitech must be refused on the ground that it violates any one or the other provision of FEMA, cannot be accepted; but, any remittance of the money recovered from Unitech in enforcement of the Award would necessarily require compliance of regulatory provisions and/or permissions.” 

88. This reasoning commends itself to us. First and foremost, FEMA – unlike FERA – refers to the nation’s policy of managing foreign exchange instead of policing foreign exchange, the policeman being the Reserve Bank of India under FERA. It is important to remember that Section 47 of FERA no longer exists in FEMA, so that transactions that violate FEMA cannot be held to be void. Also, if a particular act violates any provision of FEMA or the Rules framed thereunder, permission of the Reserve Bank of India may be obtained post-facto if such violation can be condoned. Neither the award, nor the agreement being enforced by the award, can, therefore, be held to be of no effect in law. This being the case, a rectifiable breach under FEMA can never be held to be a violation of the fundamental policy of Indian law.

89. The Appellants, however, relied upon certain observations in Dropti Devi v. Union of India (2012) 7 SCC 499. In that case, a challenge was made to the constitutional validity of Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA”), stating that by reason of the new legal regime articulated in FEMA, in replacement of FERA, the said provision has become unconstitutional in the changed situation. This submission was repelled by this Court stating:

67. The importance of foreign exchange in the development of a country needs no emphasis. FEMA regulates the foreign exchange. The conservation and augmentation of foreign exchange continue to be its important theme. Although contravention of its provisions is not regarded as a criminal offence, yet it is an illegal activity jeopardising the very economic fabric of the country. For violation of foreign exchange regulations, penalty can be levied and its non- compliance results in civil imprisonment of the defaulter. The whole intent and idea behind Cofeposa is to prevent violation of foreign exchange regulations or smuggling activities which have serious and deleterious effect on national economy.” It is important to note that this Court recognized that FEMA, unlike FERA, does not have any provision for prosecution and punishment like that contained in Section 56 of FERA. The observations as to conservation and/or augmentation of foreign exchange, so far as FEMA is concerned, were made in the context of preventive detention of persons who violate foreign exchange regulations. The Court was careful to note that any illegal activity which jeopardises the economic fabric of the country, which includes smuggling activities relating to foreign exchange, are a serious menace to the nation and can be dealt with effectively, inter alia, through the mechanism of preventive detention. From this to contend that any violation of any FEMA Rule would make such violation an illegal activity does not follow. In fact, even if the reasoning contained in this judgment is torn out of its specific context and applied to this case, there being no alleged smuggling activity which involves depletion of foreign exchange, as against foreign exchange coming into the country as a result of sale of shares in an Indian company to a foreign company, it does not follow that such violation, even if proved, would breach the fundamental policy of Indian law. 

12. Having considered these provisions, what is evident is that transactions that violate FEMA cannot be held to be void. If any act violates the provisions of FEMA, permission of RBI may be obtained post-facto. 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. The reasonings of the learned Executing Court cannot be faulted.

13. 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 (supra), Algemene Bank Netherland NV (supra) were in the context of FERA regime and therefore reliance by the counsel for the petitioner on these are misplaced. 

14. The judgement in the case of Manna Lal (supra) affirms the fact that a post facto permission can be obtained.

15. As far as the decision on interested witness in the case of R.K. Agrawal (supra) is concerned, the advocate wanted to lead evidence as a witness of a fact in the same proceedings before the same court where he appeared as an advocate.

16. Moreover in Special Civil Application No. 8334 of 2019 filed by the petitioner wherein a challenge was made to an order to Exh.19 application, the Division Bench of this Court observed that having participated in the proceedings before the English Commercial Court, having given a guarantee and the judgement of the English Court having become final, only with a view to throw a spanner and delay the proceedings, execution petition is filed which is nothing but an abuse of the process of the Court. Para 14 of the order reads as under: 

“14. The learned Commercial Court at Rajkot, while dealing with application at exhibit 19, has threadbare considered the same and has correctly interpreted the provisions of the Act as well as the provisions of section 126 of the Indian Contract Act in particular. It would not be out of place to record that having participated in the proceedings before the English Commercial Court, having given a guarantee and the judgment of English Court having become final, only with a view to throw spanner in the execution of such decree, the present petition is filed only with a view to create hurdle and delay the execution proceedings, which is nothing but an abuse of the process of the Court. We confirm the findings of the Court below and the Commercial Court having jurisdiction, has jurisdiction to entertain the execution petition filed by the respondent. The petition is devoid of any merits and the same is liable to be dismissed and is hereby rejected in limine with cost of Rs. 25,000/- to be deposited by the petitioner within a period of one week with Gujarat High Court Legal Services Committee.” 

17. For the aforesaid reasons, therefore, there is no merit in the petition i.e. Special Civil Application No. 5509 of 2021 and the same is accordingly dismissed. Interim relief stands vacated. Civil Application also stands disposed of.

ANALYSIS OF SPECIAL CIVIL APPLICATION NO. 18901 OF 2022

18. To recapitulate, apart from the challenge to the foreign judgement as being not conclusive and enforceable for the reasons stated in the applications Exs. 11 and 45 which order was a subject matter of challenge in Special Civil Application No. 5509 of 2021, the judgement-debtor on 09.03.2022 two years after the orders in Exs. 11 & 45 applications filed Application Ex. 147 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. 

19. Succinctly stated, it was the case of the petitioner that since Personal Insolvency Proceedings were instituted by the State Bank of India on 08.09.2021 by filing application under Section 95(1) of the IBC, in light of Section 96 thereof, an interim moratorium had commenced from 08.09.2021 i.e. the date of filing of CP(IB) No. 266 of 2021 before NCLT. Taking recourse to Section 238 of IBC, no further proceedings in execution proceeding be conducted in view of statutory stay. The respondent – decree holder raised several contentions that in view of the conduct of the petitioner himself in filing an application IA (IB) No. 872 before NCLT seeking dismissal of the main IBC proceedings and having challenged the vires of these very provisions, namely, Sections 95 & 96 of IBC, the contradictory conduct disentitles the petitioner of such relief. 

20. Referring to various rounds of challenge before this court in various petitions, it was the submission of the decree holder from the dates of litigation’s chequered history from 08.09.2021 to 10.03.2022 that based on the principle of constructive resjudicata, on principle of waiver, on the conduct of blowing hot and cold and being allowed to approbate and reprobate and interpreting the relevant provisions of IBC, the trial court held that proceedings under IBC cannot be applied in perpetuity and therefore rejected the application. The relevant paras of the trial court’s order dated 09.03.2022 read as under:

“28.1 Attention is drawn to relevant dates in the proceedings and it is submitted that of its 08^th September, 2021 The State Bank of India instituted before personal bankruptcy proceedings against the Judgment Debtor before the NCLT, Kolkata Bench under Chapter III of the Insolvency and Bankruptcy Code; On 14^th September 2021 the NCLT, Kolkata Bench had formally registered the personal bankruptcy proceedings filed by the State Bank of India against the Judgment Debtor as CP(IB) No. 266 of 2021 (hereinafter “NCLT Personal Bankruptcy Proceedings”); on 20^th September the Judgment Debtor had filed IA (IB) 287/KB in the NCLT Personal Bankruptcy Proceedings seeking an interim order of stay of the NCLT Personal Bankruptcy Proceedings and a final order of dismissal of the NCLT Personal Bankruptcy Proceedings. The Decree Holder claims that under the circumstances the Judgment Debtor cannot feign ignorance of the pendency of the NCLT Personal Bankruptcy Proceedings after 20^th September 2021. 

28.2 On 04^th October 2021, this Court pronounced its judgment in Exh.90, 92 & 94. The Decree Holder has attention drawn to despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor between 20^th September 2021 to 04^th October 2021 did not call upon this Hon’ble Court to refrain from passing orders in Exh.90, 92 & 94.

28.3 On 13^th October 2021, the Judgment Debtor has filed an Affidavit in support of SCA No. 17399/2021 before the Hon’ble Gujarat High Court in which he had impugned order dated 04^th August 2021 in Exh.65 passed by this Court wherein this Court dismissed the Judgment Debtors third round of objections. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor on 13^th October 2021 chose not to raise the contention that this Hon’ble Court did not have jurisdiction to take further steps in the instant Execution proceedings in light of Section 96 of the Insolvency and Bankruptcy Code.

28.4 On 26^th October 2021, the Judgment Debtor has filed an Affidavit in support of SCA No.17965/2021 before the Hon’ble Gujarat High Court in which he had impugned order dated 04^th October 2021 in Exh.94 in which the Judgment Debtor had been directed by this Hon’ble Court to furnish security by way of a cash deposit of Rs.12,89,19,458/ pending the conclusion of the inquiry of whether the Judgment Debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor on 26^th October 2021 chose not to raise the contention of the purported bar of the jurisdiction of this Hon’ble Court to direct the judgment debtor to furnish security by way of a cash deposit of Rs.12,89,19,458/ in light of Section 96 of the Insolvency and Bankruptcy Code.

28.5 On 29^th October 2021, the final hearing of Exh.111 Application had taken place in relation to the Judgment Debtors Fourth Round of the challenge to the jurisdiction of this Hon’ble Court to entertain the present execution proceedings. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor on 29^th October 2021 chose not to raise the contention of the purported bar of the jurisdiction of this Hon’ble Court in light of Section 96 of the Insolvency and Bankruptcy Code.

28.6 On 31^st October 2021, the Judgment Debtor has filed an Affidavit in support of the Exh.136 wherein the Judgment Debtor made outrageous and preposterous alligations against the Ld. Presiding Officer of this Hon’ble Court and requested her to recuse herself from hearing the case. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021 and as on 31^st October 2021 the Judgment Debtor did not seek stay of the proceedings on the ground under Section 96 of the Insolvency and Bankruptcy Code but wanted to prosecute its case before an alternative presiding officer of this Court.

28.7 On 01^st November 2021, the Judgment Debtor has filed written submissions before this Court in relation to the Fourth Round of the challenge to the jurisdiction of this Hon’ble Court in Exh.111 Application. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor on 01^st November 2021 chose not to raise the contention of the purported bar of the jurisdiction of this Court in light of Section 96 of the Insolvency and Bankruptcy Code.

28.8 On 13^th December 2021, the Judgment Debtor has filed a Writ Petition under Article 226 of the Constitution of India before the Calcutta High Court being WPA No. 20315 of 2021 in which the Judgment Debtor has sought a declaration that Section 94 to 100 (including Section 96) of the Insolvency and Bankruptcy Code are purportedly unconstitutional on the ground that they violate Article 14 of the Constitution of India and principles of natural justice. The Decree Holder claims thereby on one hand in WPA No.20315 of 2021 before the Calcutta High Court the Judgment Debtor has contended that Section 96 of the The Insolvency and Bankruptcy Code is unconstitutional whereas in the present Exh.147 before this Hon’ble Court the Judgment Debtor is seeking to take benefit from Section 96 of the Insolvency and Bankruptcy Code. 

29. On 15^th December 2021, the final hearing of SCA No.17965/2021 had taken placed before the Hon’ble Gujarat High Court in relation to the Judgment Debtor having to make a cash deposit of Rs.12,89,19,458/ pending the conclusion of the inquiry of whether the Judgment Debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor on 15^th December 2022 chose not to raise the contention of the purported bar of the jurisdiction of this Court to direct the judgment debtor to furnish security by way of a cash deposit of Rs.12,89,19,458/ in light of Section 96 of the Insolvency and Bankruptcy Code.

29.1 On 27^th December 2021, this Court dismissed the Judgment Debtors application in Exh.111 which was the Judgment Debtors Fourth Round of the Challenge to the jurisdiction of this Court to entertain the present execution proceedings. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021 and between 20^th September 2021 to 27^th December 2021 chose not to bring to the attention of this Court the purported bar of the jurisdiction of this Court in light of Section 96 of the Insolvency and Bankruptcy Code. This Court dismissed the Judgment Debtors application in Exh.136 wherein the Judgment Debtor made outrageous and preposterous allegations against the Ld. Presiding Officer of this Court and requested her to recuse herself from hearing the case. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021 and between 20^th September 2021 to 27^th December 2021 did not seek stay of the proceedings on the ground under Section 96 of the Insolvency and Bankruptcy Code but wanted to prosecute its case before an alternative presiding officer of this Court. 

29.2 On 03^rd February 2022, the final hearing of SCA No.17399/2021 had taken placed before the Hon’ble Gujarat High Court in relation to the jurisdiction of this Hon’ble Court to entertain the present execution proceedings. Despite knowing of the NCLT Personal Bankruptcy proceedings prior to 20^th September 2021, the Judgment Debtor on 03^rd February 2021 chose not to raise the contention of the purported bar of the jurisdiction of this Court to take further steps in the instant Execution Proceedings in light of Section 96 of the Insolvency and Bankruptcy Code.

29.3 On 04^th February 2022, the Hon’ble Gujarat High Court dismissed SCA No.17399/2021 in relation to the appeal against order dated 04^th August 2021 in Exh.65 passed by this Court by holding that this Hon’ble Court has jurisdiction to entertain the present execution proceedings by making the below observations on the conduct of the Judgment Debtor. The Judgment Debtor was directed to furnish security for the sum of Rs.12,89,19,458/ by way of Bank guarantee equal to the said amount.

29.4 On 18^th February 2022, the Judgment Debtor has filed SLP (Civil) No.3300 of 2022 before the Hon’ble Apex Court against order dated 04th February 2022 in SCA No.17965/2021 passed by the Hon’ble Gujarat High Court wherein no contention had been taken in relation to the purported applicability of Section 96 of the Insolvency and Bankruptcy Code had been raised.

29.5 On 07^th March 2022, during the hearing of SLP (Civil) No.3300 of 2022 before the Hon’ble Apex Court, no argument in relation to the applicability of Section 96 has been raised by the Judgment Debtor. The Hon’ble Supreme Court of India vide order dated 07^th March 2022 dismissed SLP (Civil) No.3300 of 2022.

30. Attention is drawn to various rounds of the Judgment Debtors jurisdictional challenge to the present Execution prceedings. The First Round being application at Exh.19 which is dismissed by the Trial Court on 10^th April 2019. Appeal in relation to Trial Court order dated 10^th April 2019 dismissed by the Hon’ble Gujarat High Court order dated 26^thAugust 2019 in SCA No. 8334 of 2019 wherein it is observed as under:

“13……. On the contrary, the record indicates that having filed objections under Section 13 of the CPC before the Commercial Court at Rajkot, only with an aim and object to delay the execution proceedings, the petitioner filed the present application Exh.19 and on its dismissal, the present writ petition under Article 227 of the Constitution of India.

14…..It would not be out of place to record that having participaed in the proceedings before the Commercial Court in London, UK, having given a guarantee and the judgment of English Court having become final, only with a view to throw spanner in the execution of such decree, the present petition is filed only with a view to create hurdle and delay the execution proceedings, which is nothing but an abuse of the process of the Court. We confirm the findings of the Court below and the Commercial Court having jurisdiction, has jurisdiction to entertain the execution petition filed by the respondent. The petition is devoid of any merits and the same is liable to be dismissed and is hereby rejected in limine with cost of Rs.25,000/ to be deposited by the petitioner within a period of one week with this Hon’ble Court Legal Services Committee. The Supreme Court of India in order dated 29^th September 2020 in SLP (Civil) No. 11689/2020 whilst examining an appeal against the order dated 26^th August 2019 of the Gujarat High Court in SCA No.8334/2019 refused to disturb any finding of fact or conclusion of law in the order of the Gujarat High Court. 

30.1 The Second Round being application at Exh.45 which was dismissed the Trial Court vide order dated 29^th February 2020 dismissed the same and appeal against the same is pending before the Hon’ble Gujarat High Court in SCA No.5509 of 2021.

30.2 The Third Round application at Exh.65 which is dismissed by the Trial Court vide order dated 04^th August 2021. The Hon’ble Gujarat High Court dismissed SCA No. 17399/2021 in relation to the appeal against order dated 04^th August 2021 in Exh.65 passed by this Court by holding that this Court has jurisdiction to entertain the present execution proceedings and made observations on the conduct of the Judgment Debtor.

30.3.The Fourth Round being at Exh.111 which is dismissed by the Trial Court vide order dated 27^th December 2021 and the present application at Exh.147.

31. In the instant case, as early as on 20^th September 2021 the Judgment Debtor was aware of the NCLT Personal Bankruptcy proceedings against him but chose to institute the instant present Exh.147 application only on 10^th March,2022. Thus, the Judgment Debtor knew the proceedings instituted before NCLT since 20.09.21 as well as the proceedings before the High Court and Supreme Court since from 20.09.21 – 10.03.22.” 

21. Before we examine the correctness of the aforesaid order, a reiteration of a brief chronology of dates is apt.

• On 26^th August 2019 – The Ld. Division Bench of this Hon’ble Court in SCA 8334/2019 dismissed the Judgment Debtor’s appeal against the Trial Court’s order dated 10^th April 2019 in Exhibit 19 in which the Judgment Debtor had challenged the jurisdiction of the Trial Court to entertain proceedings for the execution of the Foreign Decree under section 44A of the CPC. 
• On 29^th February 2020 – The Trial Court rejected the Judgment Debtors’ objections to the enforceability of the foreign decree on the grounds mentioned under sub-sections (a) to (f) of Section 13 of the Code of Civil Procedure, 1908 (“CPC”) being Exhibit 11 and the Judgment Debtor’s second jurisdictional challenge to the jurisdiction of the Trial Court being Exhibit 45.
• On 20^th September 2021 – The Judgment Debtor filed IA (IBC)/872(KB)2021 before the NCLT Kolkata, seeking dismissal of the Personal Insolvency proceedings i.e., CP (IB) 266/2021 filed against him by the State Bank of India.
•  On 4^th October 2021 – An order was passed by the Trial Court in Exhibit 94 directing the Judgment Debtor to deposit a sum of Rs.12,89,19,458/- under Order XXI Rule 40(b) of CPC as security pending an inquiry of his means to satisfy the decree. 
• On 20^th October 2021 – The Judgment Debtor filed SCA No.17399/2021 before this Hon’ble Court seeking to impugn the Trial Court’s order dated 4^th August 2021 in Exhibit 65 holding that the Trial Court has jurisdiction to entertain the present execution.
• On 13^th December 2021 – Judgment Debtor files WPA No. 20315/2021 before Calcutta High Court in which he has challenged the constitutionality of Section 96 of IBC.
• On 27^th December 2021 – Trial Court dismissed the Judgment Debtors application in Exhibit 111 which was the Judgment Debtor’s Fourth Round of challenge to the jurisdiction of the Trial Court. It is pertinent to note that despite knowing of the NCLT Personal Insolvency proceedings prior to 20^th September 2021, the Judgement Debtor chose not to bring to the attention of the Trial Court, the purported bar of the jurisdiction of the Trial Court considering section 96 of the IBC.
• On 27^th December 2021 – Trial Court dismisses Exhibit 136 i.e., Judgment Debtor’s application for recusal of the Learned Presiding Officer.
•  4^th February 2022 – This Hon’ble Court dismissed SCA No. 17965/2021 filed by the Judgment Debtor against the Trial Court’s order dated 4^th October 2021 in Exhibit 94 directing the Judgment Debtor to deposit a sum of Rs. 12,89,19,458.
• On 4^th February 2022 – An order was passed by this Hon’ble Court dismissing SCA No. 17399/2021 i.e., Third Round challenging the jurisdiction of the Trial Court filed by the Judgment Debtor against the Trial Courts order dated 4^th August 2021 in Exhibit 65 holding that the Trial Court has jurisdiction to entertain the present execution proceedings.
• On 7^th March 2022 – Order of the Supreme Court of India dismissing SLP (Civil) No. 3300 of 2022 against this Court’s order dated 4^th February 2022 in SCA No. 17965/2021 which directed the Judgment Debtor to furnish a bank guarantee of Rs. 12,89,19,458/-.
• On 9^th March 2022 – Just 3 days after the aforesaid Supreme Court Order, Judgment Debtor files Exhibit 147 before the Trial Court seeking “a formal order staying further proceedings in the captioned execution petition pending admission of CP (IP) 266/2021 by the NCLT, Kolkata”. 
• On 15^th June 2022 – The Judgment Debtor on his own volition obtained from the Calcutta High Court in WPA No. 20315/2021 an order staying the Personal Insolvency Proceedings against him. The Calcutta High Court had taken note of a similar challenge pending before the Supreme Court of India.
• On 6^th September 2022 – The Impugned Order is passed by the Trial Court.
• On 27^th September 2022 – The Judgment Debtor files MCA No. 1/2022 in SCA No. 17965/2021 seeking modification/ review of the order dated 4^th February 2022 in SCA No. 17965/2021 (which has been confirmed by the Hon’ble Supreme Court of India vide order dated 7^th March 2022 in SLP (C) No. 3161/2021). 
• On 13^th October 2022 – This Hon’ble Court in the present SCA No. 18901/2022 passes an interim order staying the proceedings before the Trial Court till the next date of hearing.
• On 15^th December 2022 – The Ld. Division Bench of this Hon’ble Court dismisses as withdrawn the MCA No. 1/2022 in SCA No. 17965/2021.

22. To the contention of the petitioner that with the SBI filing a petition for personal Insolvency proceedings there would be automatic stay, let us consider the relevant provisions of IBC. Sections 95 to 100 of IBC reads as under:

“Section 95. (1) A creditor may apply either by himself, or jointly with other creditors, or through a resolution professional to the Adjudicating Authority for initiating an insolvency resolution process under this section by submitting an application. (2) A creditor may apply under sub-section (1) in relation to any partnership debt owed to him for initiating an insolvency resolution process against— (a) any one or more partners of the firm; or (b) the firm. (3) Where an application has been made against one partner in a firm, any other application against another partner in the same firm shall be presented in or transferred to the Adjudicating Authority in which the first mentioned application is pending for adjudication and such Adjudicating Authority may give such directions for consolidating the proceedings under the applications as it thinks just. (4) An application under sub-section (1) shall be accompanied with details and documents relating to— (a) the debts owed by the debtor to the creditor or creditors submitting the application for insolvency resolution process as on the date of application; (b) the failure by the debtor to pay the debt within a period of fourteen days of the service of the notice of demand; and (c) relevant evidence of such default or nonrepayment of debt. (5) The creditor shall also provide a copy of the application made under sub-section (1) to the debtor. (6) The application referred to in sub-section (1) shall be in such form and manner and accompanied by such fee as may be prescribed. (7) The details and documents required to be submitted under sub-section (4) shall be such as may be specified. 

Section 96. (1) When an application is filed under section 94 or section 95— (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during the interim-moratorium period— (i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and Application by creditor to initiate insolvency resolution process. Interimmoratorium. (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. (2) Where the application has been made in relation to a firm, the interim-moratorium under sub-section (1) shall operate against all the partners of the firm as on the date of the application. (3) The provisions of subsection (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

Section 97. (1) If the application under section 94 or 95 is filed through a resolution professional, the Adjudicating Authority shall direct the Board within seven days of the date of the application to confirm that there are no disciplinary proceedings pending against resolution professional. (2) The Board shall within seven days of receipt of directions under sub-section (1) communicate to the Adjudicating Authority in writing either— (a) confirming the appointment of the resolution professional; or (b) rejecting the appointment of the resolution professional and nominating another resolution professional for the insolvency resolution process. (3) Where an application under section 94 or 95 is filed by the debtor or the creditor himself, as the case may be, and not through the resolution professional, the Adjudicating Authority shall direct the Board, within seven days of the filing of such application, to nominate a resolution professional for the insolvency resolution process. (4) The Board shall nominate a resolution professional within ten days of receiving the direction issued by the Adjudicating Authority under sub-section (3). (5) The Adjudicating Authority shall by order appoint the resolution professional recommended under sub-section (2) or as nominated by the Board under sub-section (4). (6) A resolution professional appointed by the Adjudicating Authority under subsection (5) shall be provided a copy of the application for insolvency resolution process.

Section 98. (1) Where the debtor or the creditor is of the opinion that the appointed under section 97 is required to be replaced, he may apply to the Adjudicating Authority for the replacement of the such resolution professional. (2) The Adjudicating Authority shall within seven days of the receipt of the application under sub-section (1) make a reference to the Board for replacement of the resolution professional. (3) The Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (2), recommend the name of the resolution professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. (4) Without prejudice to the provisions contained in sub-section (1), the creditors may apply to the Adjudicating Authority for replacement of the resolution professional where it has been decided in the meeting of the creditors, to replace the resolution professional with a new resolution professional for implementation of the repayment plan. (5) Where the Adjudicating Authority admits an application made under sub-section (1) or sub-section (4) , it shall direct the Board to confirm that there are no disciplinary proceedings pending against the proposed resolution professional. (6) The Board shall send a communication within ten days of receipt of the direction under sub-section (5) either— (a) confirming appointment of the nominated resolution professional; or Appointment of resolution professional. Replacement of resolution professional. rejecting appointment of the nominated resolution professional and recommend a new resolution professional. (7) On the basis of the communication of the Board under sub-section (3) or sub-section (6) , the Adjudicating Authority shall pass an order appointing a new resolution professional. (8) The Adjudicating Authority may give directions to the resolution professional replaced under sub-section (7) — (a) to share all information with the new resolution professional in respect of the insolvency resolution process; and (b) to cooperate with the new resolution professional in such matters as may be required.

Section 99. (1) The resolution professional shall examine the application referred to in section 94 or section 95, as the case may be, within ten days of his appointment, and submit a report to the Adjudicating Authority recommending for approval or rejection of the application. (2) Where the application has been filed under section 95, the resolution professional may require the debtor to prove repayment of the debt claimed as unpaid by the creditor by furnishing— (a) evidence of electronic transfer of the unpaid amount from the bank account of the debtor; (b) evidence of encashment of a cheque issued by the debtor; or (c) a signed acknowledgment by the creditor accepting receipt of dues. (3) Where the debt for which an application has been filed by a creditor is registered with the information utility, the debtor shall not be entitled to dispute the validity of such debt. (4) For the purposes of examining an application, the resolution professional may seek such further information or explanation in connection with the application as may be required from the debtor or the creditor or any other person who, in the opinion of the resolution professional, may provide such information. (5) The person from whom information or explanation is sought under sub-section (4) shall furnish such information or explanation within seven days of receipt of the request. (6) The resolution professional shall examine the application and ascertain that— (a) the application satisfies the requirements set out in section 94 or 95; (b) the applicant has provided information and given explanation sought by the resolution professional under sub-section (4). (7) After examination of the application under sub-section (6), he may recommend acceptance or rejection of the application in his report. (8) Where the resolution professional finds that the debtor is eligible for a fresh start under Chapter II, the resolution professional shall submit a report recommending that the application by the debtor under section 94 be treated as an application under section 81 by the Adjudicating Authority. (9) The resolution professional shall record the reasons for recommending the acceptance or rejection of the application in the report under sub-section (7). (10) The resolution professional shall give a copy of the report under sub-section (7) to the debtor or the creditor, as the case may be. Submission of report by resolution professional. 

Section 100. (1) The Adjudicating Authority shall, within fourteen days from the date of submission of the report under section 99 pass an order either admitting or rejecting the application referred to in section 94 or 95, as the case may be. (2) Where the Adjudicating Authority admits an application under sub-section (1) , it may, on the request of the resolution professional, issue instructions for the purpose of conducting negotiations between the debtor and creditors and for arriving at a repayment plan. (3) The Adjudicating Authority shall provide a copy of the order passed under sub-section (1) along with the report of the resolution professional and the application referred to in section 94 or 95, as the case may be, to the creditors within seven days from the date of the said order. (4) If the application referred to in section 94 or 95, as the case may be, is rejected by the Adjudicating Authority on the basis of report submitted by the resolution professional that the application was made with the intention to defraud his creditors or the resolution professional, the order under sub-section (1) shall record that the creditor is entitled to file for a bankruptcy order under Chapter IV.”

23. If the learned Trial Court’s reasoning are fathomed, it suggests that it is of the opinion that the code prescribes a specific time limit for completion of the process after institution of the application under Sections 94 and 95 of the IBC. According to the Court, the process can be calculated as a period of 41 days from the date of institution of the application. Therefore, though the interim moratorium commences on the date of the application i.e. on 14.09.2021, a Resolution Professional has to be nominated within seven days from filing of the application. Within ten days from receiving such direction the Board had to make that nomination of the Resolution Professional. The Resolution Professional has to thereafter examine the application within ten days of his appointment and submit a report.

24. Section 100(1) provides that the adjudicating authority shall within 14 days from the date of submission of the report pass an order admitting or rejecting the application referred to in section 94 and section 95 of IBC. The Trial Court, taking into consideration the conduct of the petitioner between 20.09.2021 and 10.03.2022 in the proceedings before High Court and the Hon’ble Supreme Court came to the conclusion that the petitioner waived his statutory rights under Section 96 of the I.B.C. 

25. Let us indicate, how, in our opinion, the observations of the Trial Court cannot be faulted. After the Trial Court rejected the objections to the enforceability of the Foreign Decree, and after SBI filed CP(IB) No. 266/2021, the petitioner himself on 20.09.2021 filed IA No. (IBC) 872(KB) 2021 before the NCLT, Kolkatta seeking dismissal of the personal insolvency proceedings filed against him.

26. On 04.10.2021, in an application preferred by the respondent decree holder for security under Order XXI, Rule 40(b) of the Code of Civil Procedure, the Trial Court allowed the application and held that pending the conclusion of the inquiry of whether the judgement debtor has or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the amount of the decree, the judgement debtor is directed to furnish security in the sum of Rs.12,89,19,458/- by way of cash deposit with the registry of the Trial Court within six weeks from the date of the order. Prior thereto, the Trial Court, on 04.08.2021, on an application Exh.65 of the judgement debtor with a prayer to hold that the executing court has no jurisdiction to entertain the application was rejected. Against the order dated 04.08.2021, Special Civil Application No. 17399 of 2021 was filed by the petitioner. This Court, by an order dated 04.02.2022, dismissed the petition holding as under:

“6.4 Coming to the facts of the present case, it is the decree of English Court, the reciprocating territory, is being executed under Section 44A, CPC. This provision in the CPC, 1908, provides for Execution of decrees passed by the Courts in reciprocating territory. It provides that certified copy of a decree of any superior Courts of any reciprocating territory is filed in the district court, the decree may be executed as if it has been passed by the district court. Sub section (2) of Section 44A provides for filing of certified copy regarding satisfaction of decree to the extent of such satisfaction or adjustments. Sub section (3) says that as per the provisions of Section 47 shall as from filing of the certified copy of the decree apply to the proceedings of a district court for executing a decree under this Section. The execution can be refused if it is shown that the decree falls within any of the exception in Section 13.

6.4.1 At this stage, it may be stated that Section 13, CPC provides that foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, therefore Section 44A has a direct interaction with Section 13, CPC. The provisions of Section 13 and its clauses are incorporated to become applicable while exercising powers for execution under Section 44A. Section 13 as stated above relates to the conclusiveness of foreign judgment which can be executed under Section 44A but for the exceptions contained in clauses (a) to (f) of Section 13, CPC.

6.4.2 The decree of the foreign court is treated by way of deeming fiction as if it had been passed by the ‘district court’. The parties will be producing the certified copy of the decree from the court which has passed the decree for the purpose of execution and will comply with other requirements mentioned in the provisions. As per the Sub section 3 of Section 44A- the provision of Section 47 shall as from the filing of certified copy of the decree apply to the proceedings of district court executing a decree under this Section. The word ‘decree’ is explained in Explanation 2 and in Explanation 1 ‘reciprocating territory’ is referred to.

6.4.3 Section 38 of the CPC deals with the aspect the Court by which the decree may be executed. It provides that the decree may be executed either by the court which passed it or by the court to which it is sent for execution. The section provides for jurisdiction of execution to be the same court which passed the decree.

6.5 In the present case, it is the money decree passed by England Commercial Court upon adjudication of commercial dispute and now sought to be executed under Section 44A which is deemed in law to be the decree as if it has been passed by district court. Upon conjoint reading of Section 44A and Section 38 CPC, it could be certainly deduced that the decree passed by the English Commercial Court can be executed by the commercial court when presented under Section 44A of the CPC. It becomes a decree as if it has been passed by district court. It would be only proper to read the word ‘the Commercial Court’ which had passed the decree in Section 44A CPC in place of the word ‘District Court’,when it is a decree passed by foreign court – the reciprocating territory, and sought to be executed.

6.6 When the execution is filed from the decree of commercial court, the ‘commercial dispute’ continues to exists. In the execution proceedings initiated to execute the decree of the commercial court, the characteristics of the ‘commercial dispute’ is not lost, rather the dispute continues in the same nature, that is the ‘commercial dispute’.

6.7 The jurisdiction of the commercial court under Section 6 of the Commercial Courts Act extend to try all suits and applications relating to commercial dispute of specified value. The word ‘specified value’ has been defined under Section 2(i) of the Commercial Courts Act. The word ‘applications’ under Section 6 would include execution applications and also proceedings relating to commercial dispute of specified value. The jurisdiction of the commercial court therefore necessarily extends to the execution application arising from the judgment and decree of the commercial court.

6.8 There remains hardly any substance in the submission that since the provisions relating to execution were not amended while amending certain provisions of CPC as per the Section 16 of the Commercial Courts Act, the commercial court does not have the jurisdiction to try and decide the execution petitions. Merely because there is no amendment in relation to the execution provisions brought about and certain other provisions of CPC were amended to be applied to the commercial suits, it would not mean or imply that the commercial court does not have the power to execute.

6.9 In Morlays (B’Ham) Limited. Vs. Roshanlal Ramsahai and Another [AIR 1961 Bom 156], the Bombay High Court considered the words ‘as if’ used in Sub-section (1) of Section 44A, CPC to observe that the words ‘as if’ are used to make the whole scheme of Order XXI applicable in respect of the execution of decrees of foreign court mentioned in Sub section 1. In other words, it can be said that when foreign decree is sought to be executed under Section 44A, CPC, the provisions relating to execution in CPC shall have a play together to be applied. Merely because while amending certain provisions of CPC as per the Section 16 of the Commercial Courts Act, the provisions regarding execution are not touched, it would not mean or imply that the commercial court does not have the power to execute.

7. For the foregoing reasons and discussion, a clear position of law emerges that commercial court does have the jurisdiction to try and decide the execution applications arising from the judgment and decree passed by the commercial court.” 

27. This order, therefore, even stares in the face of the petitioner in context of proceedings which are a subject matter of Special Civil Application No. 17399 of 2021. No move at this stage was also made by the petitioner till 20.10.2021 i.e. one month after filing of CP(IB) No. 266/2023 to seek a stay of the proceedings invoking grounds under Section 96 of the IBC.

28. Even when the order dated 04.10.2021 at Exh.94 was passed whereby the debtor was directed to deposit a sum of Rs.12,89,19,458/- and on 29.10.2021 that order was challenged by filing Special Civil Application No. 17965 of 2021, the judgement debtor raised no contention that he was not required to deposit the said amount in the Court on the ground of Section 96 of the IBC. On the very date, i.e. on 04.02.2022, when the judgement debtor’s petition to challenge Exh. 65 order was dismissed, this Court also dismissed the petition modifying the order of the Trial Court by allowing the judgement debtor to furnish a bank guarantee in substitution of cash deposit. On the conduct of the petitioner, the Court, in paras 5.6 to 7 observed as under:

“5.6 The Court below observed about the conduct of the judgment-debtor, “The extent to which the judgment-debtor has gone is also indicated by the fact that inspite of the knowledge of the orders of the court the judgment-debtor has not obeyed them. This makes it clear that the party who was absolutely no regard for the orders of the court must be made to bear the consequences of his own action. The judgment-debtor has chosen to wilfully and blatantly flout the orders passed against him in the present execution proceedings from the vey inception thereof.”

5.7 The present decree is money decree. The court below has noticed the conduct of the judgment-debtor reflecting his unwillingness to satisfy the decree. On the basis of the factual material before it, the conclusion is drawn by the court below that though the judgment-debtor has means to satisfy the decree but has neglected in discharging his obligation. Upon assessing the facts and conduct of the judgment-debtor the Executing Court has duly found that they are indicative of unwillingness and avoidance on part of the judgment-debtor to pay the decreetal amount despite availability of means with him to pay. The Court has considered therefore that order for furnishing security deserved to be passed. The view taken by the court below is reasonable on facts and in law.

5.8 In view of all the above facts and background and when there are circumstances suggesting that despite possessing the means, the judgmentdebtor has neglected and refused to pay the decreetal amount, furnishing of security by judgment-debtor is warranted. The security is considered proper to be solicited by the judgment-debtor to ensure that the rights of the decreeholder are not defeated.

5.9 It is in on such premise of facts and reasons, the impugned order, as above, in exercise of powers Order XXI Rule 40(b) of the Code of the Civil Procedure, 1908, requires the judgmentdebtor to furnish security and sum of Rs.12,89,19,458/- which is the equivalent amount to the worth of the book value of shares in the four Australian companies held by the judgment-debtor. The impugned order is proper and reasonable in law as such in directing the judgment-debtor in furnish security.

6. In view of the above discussion, while no ground exists to interfere with the said order requiring the judgment-debtor to furnish the security to the aforesaid extent, what becomes conspicuous in the impugned order that the said security is directed to be furnished by way of cash deposit with the Registry of this Court. The direction to furnish the security by way of cash deposit is in a way arbitrary in as much as requiring deposit of cash to the above extent would not be cumbersome but also unreasonable. The security to the aforesaid sum could be solicited by directing the judgment-debtor to furnish the bank guarantee of the equivalent amount. The impugned order is required to be interfered with to be modified to the said and such limited extent.

6.1 As a result, while maintaining the impugned order as well as the reasons supplied by the Court in so far it requires the judgment-debtor to furnish security, the direction in the order is modified to the limited extent that the judgmentdebtorpetitioner herein may furnish the security for the sum of Rs.12,89,19,458/- by way of bank guarantee equal to the said amount.

7. The present Special Civil Application is dismissed subject to modification in the order to the above extent.” 

29. Even in para 5.2 of the order in Special Civil Application No. 17399 of 2021, the Court observed that it is deprecable that despite the above findings of the Division Bench, the very ground is raised and re-raised in yet another proceedings.

“5.2 It could be well said therefore that the ground that the dispute is not ‘commercial dispute’ and consequentially the Commercial Court lacks inherent jurisdiction to execute the decree, falls flat. It is deprecable that despite the above findings of the Division Bench, the very ground is raised and re-raised in yet another present proceedings. Be as it may. Repeating the litigation on the same grounds under different pretext and different context tantamount to abuse of process of law.”

30. Reading the chronology of events, it further indicates that while making an application at Exh.136, wherein the petitioner made allegations against the Presiding Officer, which was also moved post 14.09.2021, on 31.10.2021, the petitioner did not seek a stay of the proceedings on the ground under section 96 of the IBC. Then came the applications Exh.111 and Exh.45. One glaring aspect that stands out like an eye-sore is the conduct of the petitioner in filing WPA No. 20315 of 2021 before the Calcutta High Court, wherein, he challenged the constitutionality of Section 96 of the IBC. That application was also dismissed on 27.12.2021.

31. When the petitioner challenged the order dated 04.02.2022 in Special Civil Application No. 17965 of 2021 which directed the judgement debtor to furnish a bank guarantee of Rs.12,89,19,458/-, the Supreme Court dismissed the SLP making observations as under:

“We have heard Shri Shyam Divan, learned Senior Advocate appearing on behalf of the petitioner and Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the respondent. In the facts and circumstances of the case and having gone through the impugned judgment and order passed by the High Court and more particularly when against the dues of Rs.40,00,00,000/- (Rupees Forty Crores), the petitioner is directed to furnish the Bank Guarantee of approximately Rs. 12,00,00,000/- (Rupees Twelve Crores) in exercise of power under Order 21 Rule 40 (2) of the CPC, we see no reason to interfere with the impugned judgment and order passed by the High Court. The Special Leave petition stands dismissed. Pending application(s), if any, shall stand disposed of.”

32. Immediately three days thereafter, on 09.03.2022, the application Exh.147 was filed wherein the order under challenge was passed. More than one and a half year after 20.09.2021 did the petitioner move such an application. Noteworthy too is that the petitioner on 15.06.2022 obtained a stay from Calcutta High Court staying personal insolvency proceedings. 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. The observations of the Trial Court, in an application filed at Exh.136 for recusal of the learned Presiding Officer, are worth mentioning. 

“26. ……. As discussed earlier, the history ofthe case as narrated hereinabove goes to suggest that the Judgment Debtor has been Written Submissions of the Decree Holder in insincere even in the proceedings before the English Court. It appears that such tendencies and practices attempted by litigants to threaten and intermediate the court in order to dissuade the Presiding Officers of the courts from hearing the matters as in the present one are because of the illusion that they are going to miss some mundane pleasure and keep on hankering after it. The oath of the office which mandates to perform duties to the best of the ability without fear or favour, affection or ill- will requires the Presiding Officer to go ahead with the hearing and not be overawed by such submissions.

27. In the light of the above conduct of the allegations in the present application are unfounded and appear to have been made with a malicious intention of threatening the Presiding Officer of this court and amounts to an obstruction in the administration of justice and the application is filed only with a view to create hurdle and delay the execution proceedings or in any other way frustrate or obstruct the course of justice and which is nothing but an abuse of the process of the court.”

33. Even in Special Civil Application No. 8334 of 2019, where Exh.19 application of the judgement debtor was dismissed, this Court, in its order dated 26.08.2019, in paras 13 and 14 observed as under: 

“13. …On the contrary, the record indicates that having filed objections under section 13 of the CPC before the Commercial Court at Rajkot, only with an aim and object to delay the execution proceedings, the petitioner filed the present application exhibit 19 and on its dismissal, the present writ petition under Article 227 of the Constitution of India.

14. It would not be out of place to record that having participated in the proceedings before the Commercial Court in London, UK, having given a guarantee and the judgment of English Court having become final, only with a view to throw spanner in the execution of such decree, the present petition is filed only with a view to create hurdle and delay the execution proceedings, which is nothing but an abuse of the process of the Court. We confirm the findings of the Court below and the Commercial Court having jurisdiction, has jurisdiction to entertain the execution petition filed by the respondent. The petition is devoid of any merits and the same is liable to be dismissed and is hereby rejected in limine with cost of Rs. 25,000/to be deposited by the petitioner within a period of one week with This Hon’ble Court Legal Services Committee.”

34. What is further important to note is that the petitioner on 27.09.2022 filed an MCA being MCA No. 1 of 2022 in SCA No. 17965 of 2021 seeking modification / review of the order dated 04.02.2022 which was confirmed by the Supreme Court on 07.03.2022. Apart from waiver, therefore this is a case where the petitioner is clearly approbating and reprobating inasmuch as, once obtaining a stay of insolvency proceedings and then seeking to re-argue the grounds raised in MCA No. 1 of 2022 which he withdrew. The grounds seeking modification of this Court’s order dated 04.02.2022 in Special Civil Application No. 17965 of 2021 read as under:-

“6. In view of the aforesaid provisions contained in Section 95 and 96 of the IBC, an interim moratorium has commenced from 08— 09-2021, i.e., the date of filing of CP (IB) 266/2021 before the NCLT, Kolkata by SBI and was operating on 04-10-2021 and 04-02- 2022 when orders below Exh. 94 and in SCA No. 17965 of 2021 were passed by the Trial Court and this Hon’ble Court, respectively; since the aforesaid proceedings was pending for admission on that day and, accordingly, there was a specific bar by deeming fiction relating to continuation of any legal action or proceeding pending in respect of any debt of the application and initiation and/or continuation of any proceedings in respect of any debt was deemed to have been stayed.”

7 In addition to the above, it is also submitted that Section 238 of the IBC provides that the provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. As such, the statutory bar contained in Section 96 (1) (b)(i) has an overriding effect on any provision inconsistent therewith and accordingly, all proceedings between the parties were deemed to have been stayed.

8. As such, since the impugned execution proceedings being Execution Petition No. 161 of 2019 were deemed to have been stayed on and from 08-09-2021, in view of the interim moratorium imposed by virtue of Section 96 (1)(a) pending admission of CP (IB) 266/2021 before the NCLT, Kolkata Bench against the applicant, he had filed application Exh. 147 praying for passing of a formal order staying further proceedings of execution petition No. 161 of 2019 pending admission of CP (IB) 266/2021 by the NCLT, Kolkata.”

9. The applicant further submits that in view of language of Section 96(1)(b)(i), the impugned execution petition is deemed to have been stayed; however, as stated above, the applicant preferred application Exh. 147 being the fact of filing of CP (IB) 266/2021 before NCLT, Kolkata Bench by SBI against him on record of Execution Petition No. 161 of 2021 so that no further proceedings in the said execution petition are conducted in breach of the said deemed statutory stay by virtue of operation of the aforesaid provision of law.

10. The aforesaid issue is no longer res-integra inasmuch as in its order dated 07-06-2022 passed in IA (IB) No. 310/KB/2022 in CP (IB) No.319/KB/2021, the NCLT Kolkata has held that even a subsequent petition filed by a creditor of a person who is already subjected to Personal Insolvency proceedings by one of his creditors under Section 95(1) of the IB Code, 2016 after filing and registration of one such petition which is pending adjudication, is be deemed to have been stayed as per Section 96 (1)(b)(i) of the Code, the NCLT Kolkata recalled its earlier order issuing notice in the petition filed by IFCI Ltd and stayed further proceedings of the subsequent petition filed by IFCI Ltd in view of pendency of the petition filed by SBI.

11. It is submitted that since the applicant has been pursuing/ contesting 2 applications under Section 10 and 7 of the Insolvency and Bankruptcy Code, 2016 relating to Gujarat NRE Coke Ltd and Bharath NRE Coke Ltd. respectively before the NCLT, Kolkata, relating to Corporate Insolvency Resolution Process, wherein as per Section 14 of the IB Code, 2016, a moratorium is declared by the Adjudicating Authority only after admission of a petition filed under the aforesaid sections., he was under a bonafide impression/ belief that a moratorium relating to personal insolvency proceedings would also come into force only after admission of CP (IB) No.266 of 2021 by the NCLT, Kolkata filed by SBI against him. As such, the applicant continued to contest various proceedings initiated by the respondent against him in Execution Petition No. 161 of 2019, being completely unaware of the interpretation of Section 96 (1) (b)(i) of the IB Code, 2016 which provides for an automatic moratorium over all legal actions or proceedings pending in respect of any debt due to the petitioner on filing of such application under section 95(1) of the IB Code. Accordingly, the applicant was unaware unlike as in the case of a Corporate Insolvency Resolution Process wherein a moratorium under Section 14 of the IB Code is declared only after admission of a petition under Section 7 or 9 or 10 of the IB Code, in case of Personal Insolvency Resolution Process, an interim moratorium automatically kicks in on filing of a petition under Section 95(1) of the Code and accordingly, continued pursuing/ contesting the impugned execution petition and proceedings arising out of it. Pertinently, the petition has not benefited in any manner whatsoever by pursing the impugned execution proceedings before the Trial Court or for that matter befor3e the Hon’ble Gujarat High Court and the Hon’ble Supreme Court of India. In view of specific bar contained in Section 96 (1)(b) (i) of IBC 2016, whereby all proceedings relating to all debts owed by the applicant are deemed to have been stayed, the orders dated 04-2-2022 and 04-10-2021 passed by this Hon’ble Court and the Trial Court are hit by the aforesaid provision of IBC, 2016 and as such, required to be recalled.” 

35. That application was withdrawn on 15.12.2022 after the Court in Special Civil Application No. 18901 of 2022 i.e. the present Special Civil Application granted interim order staying proceedings before Trial Court. On 15.12.2022, the MCA was listed and the High Court recorded the following:

“5. Learned senior advocate for the applicant stated on instructions of the petitioner that the petitioner has been giving up cause and wants to withdraw the present Misc. Civil Application.

5.1 Accordingly, the Misc. Civil Application was not pressed and was permitted to be withdrawn.

6. As the petitioner is giving up its prayer and seeks to withdraw the present application, permission as prayed for is granted.”

36. 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.

37. In the case of Rahul Shah (supra), the Hon’ble Supreme Court observed as under:-

“41. Having regard to the above background, wherein there is urgent need to reduce delays in the execution proceedings we deem it appropriate to issue few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law.

42. All Courts dealing with suits and execution proceedings shall mandatorily follow the belowmentioned directions:

1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third

2. party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.

3. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

4. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree, pertaining to

7. delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.

8. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.

9. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

11. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.”

38. Therefore, in our opinion, as rightly observed in the order under challenge, the IBC must be disposed of expeditiously. Even in the case of Cauvery Coffee Traders (supra), the Hon’ble Supreme Court has held that law does not permit a person to approbate and reprobate. The relevant paragraphs read as under:

“34. A party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a number as to violate the principles of right and good conscience. (Vide Nagubhai Ammal V. B. Sharma Rao, CIT V. V.MR.P. Firm Muar, Maharashtra SRTC V. Balwant Regular Motor Service, P.R. Deshpande V. Maruti Balaram Haibatti, Babu Ram V. Indra Pal Singh, NTPC Ltd. V. Reshmi Constructions, Builders & Contractors, Ramesh Chandra Sankla V. Vikram Cement and Pradeep Oil Corpn. V. MCD.)

35. Thus, it is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in quity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.” 

39. Now coming to the question of constructive resjudicata as held in the case of Sarguja Transport Services (supra), that though the principles of resjudicata 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. The same is reproduced hereinbelow:

“7. The Code as it now stands thus makes a distinction between ‘abandonment’ of a suit and ‘withdrawal’ from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or sub- stantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.

8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao and Ors. v. The State of U.P. and Ors., [1962] 2 S.C.R. 575 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao’s case (supra) is to be found at page 593 and it is as follows:

“If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.” 

9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao’s case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in benchhunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open.”

40. In the case of Forward Construction (supra), the law as regard to constructive resjudicata was discussed as under:

“20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.” 

41. In the case of Shiv Chander More (supra), the Hon’ble Supreme Court in paragraphs 22 to 24 held as under:

“22. The principles of constructive res judicata which are also a part of the very same doctrine have been held to be applicable to writ proceedings, by another Constitution Bench decision of this Court in Devilal Modi V/s STO Wherein this Court observed:

“8. It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.” 

23. Reference may also be made to the Constitution Bench decision in Direct Recruit Class II Engg. Officers’ Assn. V/s State of Maharashtra wherein this Court once again reiterated that the principles of constructive res judicata apply not only to what is actually adjudicated or determined in a case but every other matter which the parties might and ought to have litigated or which was incidental to or essentially connected with the subject-matter of the litigation. This Court observed;

“35. …an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Civil Procedure Code was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.

24. It is in the light of the above authoritative decisions of this Court no longer open to the appellants to contend that the principles of constructive res judicata would not debar them from raising the question which, as observed earlier, could and indeed ought to have been raised by them in the previous round of litigation. The High Court was, in that view of the matter, perfectly justified in holding that the plea sought to be raised by the appellants in the purported exercise of liberty given to them by the orders of this Court dated 09-04- 2008 in Lt. Governor v/s Shiv Chander More was not legally open and should not be allowed to be urged.” 

42. What is apparent from these developments is that the petitioner knew of the Personal Insolvency Proceedings right from 20.09.2021 but did not raise these issues. The defence of Sec.14 proceedings is a feeble defence. The conduct of the petitioner also shows waiver of his statutory rights. The Hon’ble Supreme Court in the case of Arce Polymers (supra), in paras 16 and 18 to 21 held as under:

“16. Waiver is an intentional relinquishment of a known right. Waiver applies when a party knows the material facts and is cognizant of the legal rights in the matter, and yet for some consideration consciously abandons the existing legal right, advantage, benefit, claim or privilege. Waiver can be contractual or by express conduct in consideration of some compromise. However, a statutory right may also be waived by implied conduct, like, by wanting to take a chance of a favourable decision. The fact that the other side has acted on it, is sufficient consideration. 

…

18. The question of waiver of mandatory requirement of a statute was considered by this Court in depth in Commr. Of Customs V/ s Virgo Steels, by referring to a catena of judgments beginning from the judgment of the Privy Council in Vellayan Chettiar V/s Province of Madras wherein it was held that though notice under Section 80 of the Civil Procedure Code, 1908 is mandatory, the suit would not be bad if the nonissuance of notice is waived by the party for whose benefit the provision has been enacted.

19. Similarly, in S. Raghbir Singh Gill V/s S. Gurcharan Singh Tohra, the argument that the requirement of Section 94 of the Representation of the People Act, 1951 cannot be waived was rejected observing that a privilege conferred or a right created by a statute, if it is solely for the benefit of a party, the said party can waive it. However, where a provision enacted is founded on public policy, the Courts would be slow to apply the doctrine of waiver. The doctrine applies in the first situation as the right to waive inheres in the concept of personal privilege and right.

20. Reference in this regard can be also made to the ratio in Krishan Lal V/s State of J&K and Martin & Harris Ltd. V/s Addl. District Judge. In Bank of India V/s O.P. Swarnakar and in Lachoo Mal V/s Radhey Shyam, this Court elucidated the general principle that everyone has a right to waive and to agree to renounce an advantage of law or rule made solely for the benefit and protection of the person in private capacity. If a party gives up the advantage that could be taken of a particular position in law, it cannot later be permitted to change and turn around so as to avail of that advantage. However, this rule will not apply when there is a prohibition against contracting out of the statute, which prohibition would have its consequences or in case the waiver would be contrary to public policy. Further, a person cannot waive a right of a third person.

21. This principle has been subsequently followed in Pravesh Kumar Sachdeva v. State of Uttar Pradesh and Others,11 to hold that waiver is abandonment of a right which normally everybody is at liberty to waive. Waiver is nothing unless it amounts to release, albeit it can be adduced from acquiescence or may be implied. The essence of waiver is an estoppel and they are questions of conduct and, therefore, necessarily determined on the facts of each case. As a rule and judicial policy, the courts of law do not allow a litigant to take inconsistent position to gain advantage through the aid of judicial proceedings.” 

43. The judgement of Axis Trustee Services Limited (supra), and Stichting Doen-postcode Loterij (supra), are in context of Sec.96 proceedings vis-a-vis co-guarantors and would therefore clearly stand distinguished. 

44. For all these aforesaid reasons, Special Civil Application No. 18901 of 2022 shall also stand dismissed. Interim relief granted earlier, stands vacated forthwith.

SCA NO.17793 OF 2021

45. The captioned petition has been filed challenging the order dated 04.10.2021 passed below Exh.90 by the Court of the Principal Senior Civil Judge, Jamnagar, in Execution Petition No.161 of 2019. By that application, the decree holder has prayed for the prohibitory order under Order 21 Rule 54 of the Code of Civil Procedure with respect to the immovable property in the ownership of the judgement debtor. Below the application so filed, the Principal Senior Civil Judge, Jamnagar, by an order dated 04.10.2021 ordered to attach the house property of the judgement debtor at NRE House at 45A, Saru Section Road, Jamnagar. 

SCA NO.18079 OF 2021

46. The captioned petition has been filed by the petitioner praying to quash and set aside order below Exh.92 dated 04.10.2021 in the aforesaid proceedings. The respondent herein had filed an application under Order XXI, Rule 41(1a) with regard to the examination of the judgement debtor as to which source of funds of Rs.50 crores which he intends to bring into Gujarat NRE Coke Limited pursuant to the composite scheme of compromise and arrangement between the judgement debtor and the creditors. By the order dated 04.10.2021, the Trial Court allowed the application directing the petitioner to disclose such source.

47. The learned counsel for the respective parties have restricted their arguments to Special Civil Application No. 5509 of 2021 and Special Civil Application No.18901 of 2022.

48. In light of the orders passed in Special Civil Application No. 5509 of 2021, whereby the order dated 29.02.2020 passed below application Exh.11 and Exh.45 in Commercial Execution Petition No.161 of 2019 by the Court of the Principal Senior Civil Judge, Jamnagar, has been upheld and the petition is dismissed and also in light of the order passed in Special Civil Application No. 18901 of 2022 wherein order dated 06.09.2022 passed below Application Exh.147 in Commercial Execution Petition No.161 of 2019 by the Commercial Court at Jamnagar, has been confirmed, and the petition is dismissed no separate reasons need to be assigned in light of the fact that the arguments of the learned counsel for the respective parties were restricted to the aforesaid two petitions only. No separate reasons be assigned. Accordingly Special Civil Application No.17793 of 2021 and Special Civil Application No.18079 of 2021 are also dismissed. 

49. The Executing Court is directed to decide the execution proceedings within a period of three months from the date of receipt of the copy of the writ of the order of this court.

FURTHER ORDER

After the pronouncement of judgement, Mr. Gupta, learned advocate appearing for the petitioner has prayed for stay and operation of the judgement and order. Request is rejected.

(BIREN VAISHNAV, J)

(D. M. DESAI,J)

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