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PNR, J & JSR, J
CCCA.No.47of 2021 and
CCCA No.48 of 2021
HIGH COURT FOR THE STATE OF TELANGANA
CCCA No.47 of 2021 and CCCA No.48 of 2021
CCCA No.47 of 2021:
Between:
Mahmood Hussain Khan, S/o. Late Mohd. Hussain Khan aged
about 68 years, R/o.3-6-19, Himayath Nagar, Hyderabad &
permanent R/o. 6, Perroset, Ch-1036 Sullens, Switzerland
...Petitioner/Defendant No.4
And
Madam Canisia Ceizar, divorcee, aged about 52 years
Occu: Household, R/o. Algen Voglhub Austria, Rep., by her GPA
Ali Asghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 55
years Occ: Business, Resident of H.No.3-5-855, Hyderguda,
Hyderabad and 7 Others.
...Respondents/Plaintiffs-Defendants
CCCA No.48 of 2021:
Between:
Altaf Hussain Khan, S/o. Late Mohd. Hussain Khan aged about 63 years, presenting residing at La Tuiliere, 1136 BussyChardonny, Switzerland.
...Appellant/Defendant No.10 And Madam Canisia Ceizar, Divorcee, aged about 51 years, Occ: Household, R/o. Algen Voglhub Austria, Rep., by her GPA, Ali Asghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 54 years, Occ: Business, Resident of H.No.3-5-855, Hyderguda, Hyderabad and 24 Others.
...Respondents/Plaintiffs-Defendants 1 to 19 & 11 to 24. DATE OF COMMON JUDGMENT PRONOUNCED: 24.03.2023
1. Whether Reporters of Local newspapers No may be allowed to see the judgment?
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PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021
2. Whether the copies of judgment may be Yes marked to Law Reporters/Journals
3. Whether Their Lordships wish to Yes see the fair copy of the judgment?
* HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO + CCCANo.47 OF 2021 AND CCCA No.48 OF 2021 % DATED 24TH DAY OF MARCH, 2023 CCCA No.47 of 2021:Between :
# Mahmood Hussain Khan,
...Petitioner
And
$ Madam Canisia Ceizar, & 7 others
...Respondents
CCCA No.48 of 2021:
Between :
# Altaf Hussain Khan
...Appellant
And
# Madame Canisia Ceizar and 24 Others.
...Respondents
<Gist:
>Head Note:
! Counsel for the Petitioner : Sri A. Prabhakar Rao
^Counsel for Respondents : Sri Ali Azghar Ceizar
(appeared party-in-person)
? CASES REFERRED:
1. (2017) 2 SCC 253 : (2017)1 SCC (Civ) 618: 2016 SCC OnLine SC 1444
2. (2007) 5 SCC 745
3. (2014) 5 SCC 1 3 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 HIGH COURT FOR THE STATE OF TELANGANA CCCA No.47 of 2021 and CCCA No.48 of 2021 CCCA No.47 of 2021:
Between:
Mahmood Hussain Khan, S/o. Late Mohd. Hussain Khan aged about 68 years, R/o.3-6-19, Himayath Nagar, Hyderabad & permanent R/o. 6, Perroset, Ch-1036 Sullens, Switzerland ...Petitioner/Defendant No.4 And Madam Canisia Ceizar, divorcee, aged about 52 years Occu: Household, R/o. Algen Voglhub Austria, Rep., by her GPA Ali Asghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 55 years Occ: Business, Resident of H.No.3-5-855, Hyderguda, Hyderabad and 7 Others.
...Respondents/Plaintiffs-Defendants CCCA No.48 of 2021:
Between:
Altaf Hussain Khan, S/o. Late Mohd. Hussain Khan aged about 63 years, presenting residing at La Tuiliere, 1136 BussyChardonny, Switzerland.
...Appellant/Defendant No.10 And Madam Canisia Ceizar, Divorcee, aged about 51 years, Occ: Household, R/o. Algen Voglhub Austria, Rep., by her GPA, Ali Asghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 54 years, Occ: Business, Resident of H.No.3-5-855, Hyderguda, Hyderabad and 24 Others.
...Respondents/Plaintiffs-Defendants 1 to 19 & 11 to 24. The Court made the following:
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PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO.
CCCANo.47 OF 2021 AND CCCA No.48 OF 2021 COMMON JUDGMENT: (Per the Hon'ble Sri Justice J. Sreenivas Rao) Defendant No.4 in O.S. No.64 of 2009 filed CCCA No.47 of 2021 questioning the common judgment and decree dated 10.03.2021 passed in O.S.No.164 of 2005 & O.S. No.64 of 2009 on the file of II Addl. Chief Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, hereinafter the parties are referred to as they were arrayed in O.S. No.64 of 2009 and O.S. No.164 of 2005.
CCCA No.47 of 2021 :
3. Respondent Nos.1 and 2 who are the plaintiffs filed suit O.S.No.64 of 2009 against the appellant/defendant No.4, respondents 3 to 8/defendants 1 to 3 and 5 to 7
(a) for seeking partition of the suit schedule property i.e. House bearing Municipal No.3-6-19, admeasuring 3000 square yards, situated at Himyatnagar, Hyderabad into five shares and allot one such share of the same to the plaintiffs and also future mesne profits.
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(b) to pass Final Decree in accordance with the preliminary decree by appointing an Advocate Commissioner for division of plaint schedule properties and allot 1/5th share and allotment of respective shares and possession, be delivered to the plaintiff No.2 in respect of the plaint schedule property.
(c) To direct the defendants 1 to 7 to deposit the arrears of rents and interest to a tune of lrs approximately Rs.2,74,17,600/- i.e. 1/5th share of the plaintiff from the year 1994 till realisation of rents.
4. Brief averments of the plaint in O.S. No.64 of 2009 as follows:
4.1. Plaintiff No.1, a Swiss National domiciled in Austria, has obtained an order in default in payment on 17.06.1997 which has been further added to on 04.08.1997 against Mr.Altaf Hussain Khan/defendant No.5. When there was default in payment on the part of defendant No.5 an order of attachment dated 05.11.1997 was passed by the office of the legal proceedings of Morges, Switzerland.
4.2. The defendant No.5 has contested the legality of the attachment and confirmation on 04.12.1997 in respect of two buildings-House bearing No.5-9-186, Chapel Road, and 3-6-19 at Himayathnagar, Hyderabad. On 16.12.1997 the defendants 1 to 3 and 5 have filed an appeal before the Court of District 6 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 Morges, Switzerland. On 08.01.1998 the defendant No.4 viz., Mahmood Hussain Khan has filed a separate appeal contesting rights of all his brothers. On 25.11.1998 the Court of District, Morges, Switzerland has rejected the defendant No.4 appeal. Similarly, on the same date, the appeal filed by defendant Nos. 1 to 3 and defendant No.5 was also rejected.
4.3. The defendant No.4 as well as defendant Nos.1, 2 and 5 have not chosen to file an appeal against the said order dated 28.01.1998. Defendant No.3 only chose to file an appeal against the above said order and the same was rejected by the Court of Bankruptcy of Legal Proceedings on 19.05.1999. Thus, the plaintiff was granted a decree on 19.05.1999 and it has become final, because there was no appeal to the Supreme Court of Switzerland.
4.4. In execution of the said decree, the defendants 1 to 5 have raised many pleas and all the pleas have been rejected by the Court in Switzerland. Ultimately, the Supreme Court (Tribunal Federal) Switzerland on 28.01.2000 has finally upheld the rights of the plaintiff. On 07.09.2000 the office of the proceedings of Bankruptcy of District, Morges has sent a letter to all the defendants inviting them for conciliation, which was to take 7 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 place on 18.10.2000. Ultimately, the sale notice was issued stating that the 1/5th share of defendant No.5 would be sold on 10.09.2004. The sale was conducted and the plaintiff became highest bidder for 10,000 Swiss Franks. Since the sale was not questioned by the debtor or any of the defendants within 10 days, the sale was confirmed. Since the plaintiff purchased only 1/5th share, the suit is for partition and separate possession of the suit schedule property viz., House bearing No. 3-6-19 at Himayathnagar, Hyderabad. It is further submitted that the Bankruptcy of defendant No.5 has not so far been annulled.
4.5. Plaintiff No.1 assigned her interest in the above suit schedule properties in favour of plaintiff No.2 by executing an assignment deed dated 09.07.2007 in Switzerland as per law. The same was confirmed by the judicial authorities and accepted by the defendants1 to 5 and by virtue of acquiring the rights in the suit schedule properties in respect of two properties situated at Chapel Road and Himayatnagar. The plaintiff No.2 also filed a complaint before the Public Prosecutor, District of Morges, Switzerland on 18.11.2011 against the defendant No.5 and his wife for fraudulent bankruptcy and fraud in seizure. Basing on the complaint, investigation was 8 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 directed against them. It was found that the said person concealed parts of their assets belonging to plaintiffs, and in subsequent proceedings PE 13.021960-MMR dated 25.11.2014 the Chamber of Criminal Appeal (High Court for Criminal Matters - State Vaud - Switzerland) indicated that defendant No.5, admitted before the Tribunal through his counsel, dated 22.10.2014 stating that "Altaf Hussain Khan did not diminish any assets and caused no damage to creditors. The fact that the recovery in India, the debt acquired by auction in Switzerland has caused difficulties to Mr Ceizar Ali Asghar and no longer the responsibility of Swiss authorities, but the Indian authorities. He cannot be accused of having concealed any assets of Ceizar Ali Asghar/plaintiff No.2 that should be subject to the procedure of seizure" and defendant No.5 have admitted several facts.
4.6. It is the further case of the plaintiff that the defendants in the suit are collecting rents and have enjoyed the same as if, it is their own. The plaintiff No.2 is entitled to get rent to the extent of 1/5th share from 1994 to the end of 2018 i.e.24 years which average amounts to Irs Rs.85,000/- per month along with interest @ 12% per annum.
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PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021
5. Defendant No.1 died. Defendant Nos.2, 4, and 6 have filed their written statements and defendant No.4 also filed additional written statement. Defendant Nos.3 and 5 were set ex parte. Defendant No.6 and 7 are the legal representatives of defendant No.1 and they have not filed written statement.
6. Defendant No.2 filed written statement denying the plaint averments inter alia contending that the suit schedule property is owned and possessed jointly by defendants 3 & 4 which is established from the orders in IA.Nos.168/1999 and 949/1999 in 0.S.No.361 of 1994 filed by plaintiff. Against the said orders, the plaintiff has not preferred any appeal or revision. The suit schedule property originally got attached by plaintiff as Item No.2 in I.A. No.500 of 1994 in O.S. No.361 of 1994 filed and pending on the file of I Senior Civil Judge, City Civil Court, Hyderabad for recovery of money against the defendant No.5. The suit schedule property which belongs to defendants 3 &4 got attached by ex parte orders to get their property released from the attachment before judgement and a fresh modified attachment order was also issued on 04.06.2002 in I.A.No.1189 of 2002 in O.S.No.361 of 1994. It is contended that the suit schedule property cannot be sold or auctioned during the pendency of the said suit. No appeal or revision has been filed 10 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 against the release order and it is requested the Court to consider the contents of the written statement filed by defendant No.4. He further submits that he along with defendant Nos.3 and 4 purchased a portion of the property situated at Chapel road under a registered sale deed but not from the owners/defendant Nos. 1 and 5.
7. Defendant No.4 filed written statement contending that defendant No.3 and himself owned and possessed the suit schedule property under a registered sale deed vide document No.507/1959 and presently the schedule property is under lease given by them. The mother-in-law of the plaintiff i.e. mother of the alleged GPA holder of the plaintiff filed a suit vide OS No.627 of 1995 on the file of Senior Civil Judge, City Civil Court, Hyderabad, claiming 1/11th share in the suit schedule property falsely alleging that it was Matruka property of her mother. The mother of the plaintiff also filed O.S. No.627 of 1995 therein, she also filed I.A. No.571 of 1995 seeking injunction against the defendants not to interfere with her alleged joint possession over the suit schedule property and not the alleged suit schedule property. The petition was dismissed on merits vide orders dated 18.08.1995. The appeal preferred against the said order was also dismissed by the High Court 11 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 dated 13.10.1995. In the appeal against the orders in I.A. No.1389 of 1995. The suit O.S. No.627 of 1995 was dismissed with costs by its judgment and decree dated 02.12.2000 by upholding that the defendant Nos.3 and 4 are the only owners of the suit schedule property and it is not a Matruka property. The defendant No.5 and the plaintiff herein had business relations and did a contract of construction i.e. development of plot of land No.767 situated at rue du Lac. 15a, in the Commune of Renens, Switzerland. They had differences and in pursuance of the said transactions, the plaintiff filed suit OS No.361 of 1994 on the file of Senior Civil Judge Court, City Civil Court, Hyderabad for recovery of Rs.50,00,000/- against the defendant No.5 and the same is pending.
7.1. He further contended that the plaintiff filed I.A. No.500 of 1994 in O.S. No.361 of 1994 for attachment before judgment in respect of alleged properties of the defendants including the item No.2 properties. The affidavit filed in the said application shows that the plaintiff is having knowledge that the property is the exclusive property of defendant Nos.3 and 4. Item No.1 of schedule of I.A. No.500 of 1994 in O.S. No.361 of 1994 was the property of defendant No.5 and his brother/defendant No.1 and they gave the same for development to third party. The written 12 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 statement of defendant in O.S. No.361 of 1994 was to the effect that he is joint owner of the property bearing House No.3-6-19, situated at Himayatnagar, Hyderabad, is owned and possessed by defendant Nos. 3 and 4 only in spite of the same, the plaintiff has not taken any steps to get the said I.A. No.500 of 1994 in O.S. No.361 of 1994 modified or the orders dated 05.04.1994 got modified. The plaintiff after obtaining ex parte orders in I.A. No.500 of 1994 has filed in the Swiss Courts stating that the said properties are under attachment.
7.2. He further contended that he filed a claim petition in I.A. No.168 of 1999 in O.S. No.361 of 1994 on the file of I Senior Civil Judge, CCC, Hyderabad for release of Item No.2 of the attached property. The plaintiff filed counter affidavit stating that Item No.2 of the attached property is sold by none other than the husband of G.P.A. holder of the plaintiff under a registered sale deed to the defendant Nos.3 and 4. After due contest in IA No.168 of 1999, the defendant No.4 has got the share of the property released and by the orders in I.A. No. 949 of 1999 in O.S. No.361 of 1994, the remaining 50% share of defendant No.4 is also released vide orders in I.A. No.1189 of 2002 in O.S. No.361 of 1994. Later in I.A. No.1189 of 2002 the property bearing House No.3-6-19, Himayathnagar, Hyderabad, 13 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 is released from attachment and the modified order of attachment is issued. The suit O.S. No.361 of 1994 is still pending and no decree is passed in the said suit. 7.3. He further contended that the immovable property situated at Hyderabad, A.P., India cannot be auctioned or sold at Switzerland, much less auctioned at Morges, Switzerland in between the plaintiff and defendant No.5, whether defendant No.5 filed any insolvency petition or not. Defendant No.5 is well aware that the property is the exclusive property of defendant Nos. 3 and 4 and to that effect, defendant No.5 filed his written statement in O.S. No.361 of 1994 and the suit is pending for trial, as such the property cannot be sold or auctioned. The submission of the plaintiff No.1that as per document No.1, he is the auction purchaser of the defendant No.5 in the suit schedule property, is not correct.
7.4. He further contended that the litigious and contested rights claimed by the plaintiff No.1 has to be proved and claimed in India. Even if the orders are taken as true and binding, then also the plaintiff No.1 has to file a suit to prove that the defendant No.5 (who is a debtor in Switzerland to the plaintiff in the present suit) has a right in the suit schedule 14 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 property and after getting decree only she is entitled to enforce the order which is passed by the Switzerland Court. Further, the fact remains that the said property was also released from attachment claimed by plaintiff No.1 in I.A. No.500 of 1994 in O.S. No.361 of 1994 on contest between the plaintiff No.1 and defendant Nos.4 and 3 herein in I.A. No.168 of 1999 and I.A. No.949 of 1999 in O.S. No.361 of 1994. The certificate dated 27.09.2004 filed by plaintiff No.1 is in respect of property bearing No.5-9-186 situated at Chapel road, Hyderabad belonging to defendant Nos.1 and 5 but not in respect of suit schedule property. He further submits that if the contention of plaintiff that the defendant No.6 has right in the property at Himayatnagar and the plaintiff is claiming 1/5th share in the Himayathnagar property, then the claim of the plaintiff in Chapel road also must be 1/5th share only, but in Chapel road property the claim is as per the document of the property i.e. the defendant Nos. 1 and 5 herein and in respect of the Himayathnagar property, it is not as per the sale deed (title document) of the defendant Nos.4 and 3.
7.5. He further contended that defendant No.5 has no share in the property at Himayathnagar, Hyderabad and also as per the orders in the application in O.S. No.361 of 1994. As such, the 15 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 suit is not maintainable unless and until the plaintiff proves that the defendant No.5 has a right or 1/5th share in the suit schedule property of defendant Nos.3 and 4. The Court fee paid under Section 34(s) of A.P.CF and SV Act does not apply to the present suit as the property is not joint and the suit for partition does not lie. The suit schedule property is the absolute property of defendant Nos.3 and 4 and that the title, the rights of these defendants over the suit schedule property are still subsisting under the said sale deed since more than 50 years they are enjoying the same. All the immovable properties situated in India are governed by Transfer of Property Act and these properties can neither be attached nor sold in any foreign country or by any foreign authorities. The provisions of Indian Stamp Act, Registrations Act and the Transfer of Property Act are applicable. Therefore, the suit itself is not maintainable under law.
8. Defendant No.4 filed additional written statement stating that the contention of plaintiff No.1 executing assignment deed, dated 09.07.2007 is not a legally admissible document, as the immovable property situated at Hyderabad. It is pertinent to submit that the defendant No.4 has earlier submitted that the said share or any portion of the said property is not sold, rather 16 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 as according to the authority issued the said certificate in respect of a contested unproved debt claim, these are the seized rights which were sold and not a part of the co-property. It indicates that the said certificate in respect of the suit property is not sold, rather than the contention of the plaintiffs that the defendant No.5 is having 20% (1/5th) share in the suit property being transferred, if at all, he has any such share in the said property, which is to be proved before that the defendant No.5 has such share, and then the plaintiffs have a right to claim. The same contention has been clarified by the letter dated 10.07.2019, issued by office of the Bankruptcy and Prosecution, Dist of Marges, Switzerland. As such, the suit itself is not maintainable without plaintiffs filing a case to prove that the defendant No.5 has a share of 20% (1/5) as claimed by them, since the competent Court has already declared that the defendant Nos.3 and 4 are the only owners and possessors of Item No.2 i.e. H.No.3-6-19 Himayathnagar, Hyderabad. 8.1. The defendant No.5 has surrendered his rights, etc. before the Swiss Courts, has been misinterpreted. The defendant No.5 might have surrendered his rights in respect of his share of property in Item No.1 i.e.22.5% share in Chapel 17 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 road property, but not in respect of the above suit schedule property.
9. Basing on the above said pleadings, the Court below framed the following issues.
1. Whether the document i.e., Auction Sale Certificate dated 27.09.2004 basing on which the plaintiffs are claiming share in the suit schedule property, is valid, binding on the defendants?
2. Whether the plaintiffs are entitled for preliminary decree of partition as prayed for, if so, what are the shares to which parties are entitled to?
3. Whether the plaintiffs are entitled for future mesne profits, if so, at what rate?
4. To what relief"?
CCCA No.48 of 2021
10. Respondents 1 and 2 in CCCA No.48 of 2021, who are the plaintiffs in O.S. No.164 of 2005 filed suit against the appellant/ defendant No.10 and defendants No.1 to 9 & 11 to 24 for seeking partition of the suit schedule property i.e. House bearing No.5-9-186, Chapel Road, Hyderabad, admeasuring 1187 Square yards into five shares and allot 22.5% share of the 18 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 same along with a decree for recovery of rents that have accrued from 05.11.1997 with interest and future mesne profits.
11. Brief averments of the plaint in O.S. No.164 of 2005 are as follows:
11.1. Plaintiff, a Swiss National domiciled in Austria, has obtained an order in default in payment on 17.6.1997 which has been further added to that on 4.8.1997 against defendant No.10. When there was default in payment on the part of the defendant No.10, an order of attachment dated 5.11.1997 was passed by the office of Legal Proceedings of Morges, Switzerland. The attached property is part of the common property to an extent of 22.5%.
11.2. The defendant No.10 contested the legality of the attachment contending that he has given his share to his Advocate in India for payment of his fees. The attachment has been confirmed on 4.12.1997 rejecting all the objections. The confirmation order dated 4.12.1997 covered two buildings namely House bearing No.5-9-186, Chapel Road, and House bearing No.3-6-149 at Himayatnagar, Hyderabad. The present proceedings are with regard to H.No.1-9-186 i.e. suit schedule property. Defendants 6, 7, 8 and 10 have filed an appeal on 19 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 15.12.1997 before the Court of District Morges, Switzerland. On 8.1.1998 the Defendant No.9 has filed a separate appeal contesting rights of all his brothers. The Court of District Morges rejected the appeal of defendant No.9. On the same date, the appeal filed by four brothers was also rejected. Defendant No.9 has not chosen to file appeal against the said order dated 28.1.1998. The appeal preferred by defendant No.8 was rejected by the Court of Bankruptcy of Legal proceedings on 19.5.1999. The plaintiff was granted a decree on 19.5.1999 and the decree has become final. The Defendants 6 to 10 have raised many pleas and all the pleas have been rejected by all the Courts in Switzerland. The Supreme Court (Tribunal Federal) Switzerland on 28.1.2000 has finally upheld the rights of the Plaintiff No.1. On 7.9.2000 the office of proceedings of Bankruptcy of District Morges has sent a letter to all the defendants inviting them for conciliation, on 18.10.2000. Ultimately, the sale notice is issued stating that 22.5% share of the defendant No.10 would be sold on 10.09.2004. The sale was conducted and the plaintiff was held to be the highest bidder by paying 70,000/- Swiss Franks. The sale was also confirmed and the sale certificate has been issued in favour of the plaintiff on 20 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 27.7.2004. The Bankruptcy of defendant No.10 has not so far been annulled.
12. Defendant Nos. 1 to 5 are set ex parte. Defendant No.6 died after filing written statement and his legal representatives are added as defendant Nos.22 and 23 and they have not filed Vakalat and written statement. Defendant Nos.7 to 10 filed written statement, defendant No.9 also filed additional written statement and adoption memo filed by defendant Nos.6 to 8 and
10. The defendant Nos.11, 14, 15 and 16 filed written statement and the same is adopted by defendant Nos. 12 and 13. The defendant Nos.17 to 21 have not filed written statement. The defendant No.24 (tenant) has not filed written statement. Thus, the contesting defendants are defendant Nos.6 to 10 and 11 to 21 in the suit.
13. Defendant No.6 filed written statement denying the averments made in the plaint inter alia contending that the suit is not maintainable which is filed basing on Section 13 of the C.P.C as alleged sale certificate/auction letters and all other proceedings cannot be in respect of an immovable property situated in India. The alleged orders or proceedings are not passed by competent Court and not on merits, obtained by 21 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 fraud and they are not in accordance with Transfer of Property Act. The disputes and transfer to be adjudicated only by Indian Courts and no Foreign Court has jurisdiction to do so. As such, Section 13 of C.P.C. is not applicable to the present suit. 13.1. He further contended that the plaintiff is not an Indian National and she cannot acquire any immovable property in India without obtaining permission from the Reserve Bank of India and Union Govt. of India. Further, the Plaintiff No.1 is a divorcee; she ought to have mentioned her father's name and is not proper person for adjudication of the case. The alleged G.P.A. has no right to file the above suit and she is not an Indian citizen and being a foreigner without disclosing his identity and other particulars as well as the alleged G.P.A. is not a resident of India for any purpose. The alleged G.P.A. holder be directed to produce his identity and residential proof in connection with his false statement of being a permanent resident H.No.3-5-855, Hyderguda, Hyderabad - 500 029 A.P., as shown in the cause title.
13.2. The alleged G.P.A. holder of the plaintiff No.1 is none other than the son of Uterine sister of the defendants Nos.6 to
10. The plaintiff filed suit O.S.No. 361 of 1994 on the file of I 22 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 Senior Civil Judge, CCC, Hyderabad for recovery of Rs.50,00,000/- against the defendant No.10 since they had business relations and contract of construction i.e. development of plot of land No.767situated at rue du Lanco, 15e, in the Commune of Renens, Switzerland. They had differences and in pursuance of the said transaction the plaintiff filed suit in O.S. No.361 of 1994. In the said suit the plaintiff filed a false affidavit vide I.A.No.500 of 1994 and obtained an attachment before judgment in respect of the properties as shown below:
a) Undivided half share of the commercial complex consisting of three stories building with Mulgies, constructed on a premises admeasuring 1800 sq. yards being Municipal No.5-9-183 (later corrected 5-9-
186), situated at Gunfoundry, beside S.B.H. Head Office, Hyderabad.
b) Undivided 1/5th share of the Double storied building located on a premises admeasuring 3000 sq. yards bearing Municipal No.3-6-19, situated at Himayathnagar, Hyderabad.
14. Defendant Nos.7 to 9 filed common written statement which is similar to that of written statement filed by defendant No.6.
15. Defendant No.10 filed written statement contending that the suit filed based on the Section 13 of the C.P.C. is not maintainable, as it is hit by almost all the sub-clauses of the 23 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 said Section. As the alleged sale certificate, auction letter and all other proceedings cannot be in respect of an immovable property situated in India, therefore, the alleged orders or proceedings are not passed by a competent Court, not on merits, obtained by fraud and they are not in accordance with Transfer of Property Act, which is the only law which governs the transfer of all immovable properties in India and the disputes and transfer to be adjudicated only by Indian Courts and no Foreign Court has jurisdiction to do so. As such, Section 13 of C.P.C. is not applicable to the present suit. 15.1. He submits that he filed written statement in O.S. No.361 of 1994 that he is a joint owner of the item No.1 of the schedule of the said I.A. and the other defendant Nos. 7 to 9 have nothing to do with the said property and he has also stated that the Item No.2 property bearing House No.3-6-19, situated at Himayatnagar, Hyderabad is neither owner nor possessed by him. The property is owned and possessed by defendant Nos.8 & 9 in the present suit. The plaintiff has taken the ex parte orders and filed in the Swiss Courts stating that the said properties are under attachment. Having come to know the same from the proceedings in Switzerland that the defendant No.9 filed proceedings in the Swizz Court to claim his property 24 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 seeking release of the same and the same is contested by plaintiff and the claim of the defendant No.9 was rejected. In the appeal filed defendant No.9 was directed to approach Indian Courts to get the orders dated 05.04.1994 nullified or modified by the same Court to protect his property at Himayatnagar, Hyderabad. The defendant No.9 filed a claim petition I.A. No.168 of 1999 in O.S. No.361 of 1994 for release of Item No.2 of the attached property. Another application was filed by D-8 for the half share vide I.A. No.949 of 1999 in O.S. No.361 of 1994. Both the applications were allowed after due contest. There was no appeal or revision preferred. Finally, by the orders in I.A.No.1189 of 2002 in O.S. No.361 of 1994 the property bearing House No.3-6-19 is released and the modified order of attachment is issued. The defendant No.9 has filed suit O.S. No.390 of 2004 for Rs.25,00,000/- as damages in respect of the false and defamatory statements and illegal attachments based on the false and baseless affidavits filed in O.S. No.361 of 1994. The defendant No.10 had a contractual relationship with the plaintiff in respect of the development of immovable property in Switzerland by obtaining bank loan in Switzerland. The plaintiff herein as a joint owner and partner of the said agreement has claimed certain amounts and in pursuance of 25 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 the same several properties of the said defendant have been sold in Switzerland including the building constructed under the said development agreement. The defendant had a money claim in the form of attachment against D-10 in O.S. No.361 of 1994 and the same attachment is still in force and the suit is still pending adjudication.
15.2. He further contended that the suit based on sale certificate issued by Switzerland authority is illegal, invalid and not enforceable. The alleged attachment of Switzerland Courts or the sale by the party is illegal and non est. Section 13 of C.P.C is in respect of judgment of foreign Courts and its validity. As the suit is based on the sale certificate issued by Switzerland Courts, it was illegal and unenforceable under law.
16. Basing on the above said pleadings, the Court below framed the following issues.
(1) Whether the sale certificate issued in favour of the plaintiff dated 27.07.2004 by the Swiss Court valid, binding on the defendants?
(2) Whether the plaintiff is entitled to 22.5% share from the suit schedule property?
(3) To what relief?
26
PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021
17. The Court below framed common issue in both the suits i.e.
(1). whether the sale certificate issued in favour of the plaintiff dated 27.07.2004 by the Swiss Court valid, binding on the defendants?
18. The Court below clubbed both the suits, O.S. No.164 of 2005 and O.S. No.64 of 2009 as per the orders in I.A. No.1182 of 2019, dated 23.04.2019, but on the date of clubbing of the suits in O.S. No.164 of 2005 trial was completed, suit was coming for arguments. Therefore, the Court below recorded evidence in OS No.64 of 2009 separately and documents were also marked separately.
19. In O.S. No.64 of 2009 on behalf of plaintiffs, P.W.1 was examined and Exs.A.1 to A.58 documents were marked. On behalf of defendants, D.W.1 was examined and Exs.B.1 to B.8 documents were marked.
20. In O.S. No.164 of 2005 on behalf of plaintiffs, P.Ws. 1 and 2 are examined and Exs.A.1 to A.54 documents were marked. On behalf of defendants, DWs.1 and 2 are examined and Exs.B.1 to B.15 were marked.
27
PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021
21. The Court below after considering the contentions of the respective parties, oral and documentary evidence on record and after hearing the parties decreed the suits by its common judgment and decree dated 10.03.2021.
21.1 In O.S. No.64 of 2009 the Court below granted preliminary decree for partition of the suit schedule property into five shares and allotting one such share to the defendant No.5 by metes and bounds and further held that the 1/5th share of the defendant No.5 is allotted to the 2nd plaintiff, the assignee of the 1st plaintiff. The Court below further held that the suit of the plaintiff is decreed for future mesne profits from the date of Ex.A.1 dated 27.09.2004 till the date of realisation by filing separate application under Order 20 Rule 12 of CPC. The claim made by the plaintiff for rents is refused. The Court below while decreeing the suit has given specific finding that in respect of each issue holding that the plaintiffs have mentioned that they are entitled to passing of preliminary decree for partition and defendant Nos. 1 to 5 are entitled to 1/5th share in the suit schedule property. The Court below further held that the sale certificate Ex.A.1 is binding on the Court as per Sections 13 and 14 of Civil Procedure Code. The plaintiffs are claiming the share from the suit schedule property as per sale certificate Ex.A.1 as 28 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 the plaintiff No.1 acquired the rights from the suit schedule property pursuant to the sale certificate (Ex.A.1) as he purchased the property through auction. Thereafter, the plaintiff No.1 executed assignment deed in favour of plaintiff No.2 assigning share for 22.5%.
22. Similarly, in OS No.164 of 2005 the Court below passed the preliminary decree as follows:
a) The suit of plaintiffs is preliminarily decreed for partition of the suit schedule property into 2 equal shares in 45% share of owners (D.6 & D.10) and for separate possession by metes and bounds.
b) The 22.5% share of defendant No.10 i.e. Altaf Hussain Khan out of 45% share of the owners i.e. defendant Nos.6 & 10, is allotted to plaintiff No.2, the assignee of the plaintiff No.1.
c) The suit is decreed for determination of the future mesne profits from the date of Ex.A.1 till the date of realisation on filing separate application under Order 20 Rule of 12 CPC at the time of Final Decree proceedings on appointing an advocate-Commissioner.
d) The claim of rents is refused.
23. Sri A. Prabhakar Rao, learned counsel for the appellant vehemently contended that the Court below without properly considering the contentions of the defendant No.4 and defendant No.10, oral and documentary evidence on record erroneously passed the preliminary decrees. He further 29 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 contended that the suit filed by the plaintiff for seeking partition of the suit schedule property into five shares and for separate possession and allotment of one share to 5thdefendant and further allotment of 1/5th share of defendant No.5 is allotted to plaintiff No.2, the assignee of plaintiff No.1 is not maintainable under law. The sale certificate/Ex.A.1does not come within the definition of 'decree' and basing on the same, the plaintiff is not entitled to seek any relief much less the relief sought in the suit. 23.1. He further contended that the Switzerland Court is not having any jurisdiction or competency to grant partition of the suit schedule property and allotment of respective shares in favour of the plaintiffs pursuant to the sale certificate/Ex.A.1 and is not permissible under law. He further contended that the plaintiff has not filed any suit and obtained the decree and judgment in Switzerland Court and the sale certificate/Ex.A.1 issued by the Switzerland Court is not a decree as defined under Section 2 (2) of CPC. He further contended that the Switzerland Court has not passed any order or decree in favour of plaintiff and Ex.A.1 is only sale certificate and the same cannot be treated as judgment and basing on the same, the plaintiff is not entitled to institute the suit and the suit filed by the plaintiff is not maintainable especially as per the provisions 30 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 of Section 13 of C.P.C. The sale certificate issued by the Switzerland Court does not come within the definition of foreign judgment as defined as judgment under Section 13 of C.P.C. 23.2. He further contended that the plaintiff No.1 filed the suit for seeking partition, separate possession and allotment of 1/5th share in favour of 5th defendant and the said share is allotted to plaintiff No.2, the assignee of plaintiff No.1. The plaintiff No.2 is only a G.P.A holder and the plaintiff No.1 was not entered into witness box to establish her claim as required under law. The plaintiff No.2, a G.P.A. holder of plaintiff No.1 entered into witness box and basing on his evidence the Court below decreed the suit and the same is not permissible under law. Unless and until the plaintiff No.1 enters into the witness box the evidence of G.P.A holder cannot be taken into consideration. He further contended that the plaintiff is claiming the relief basing on the assignment deed and the said document is not unstamped and unregistered and the same cannot be admissible into evidence as per the provisions of Section 35 of Indian Stamp Act, 1899 and Section 17 of Indian Registration Act, 1908. The said document is compulsory required stamp duty and registration. The Court below without considering the contentions raised by the defendant No.4, decreed the suit basing on the said 31 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 unstamped and unregistered assignment deed. He further contended that the Switzerland Court issued the Sale Certificate/Ex.A.1 in Insolvency Proceedings, wherein the defendant is not a party to the said proceedings and the said sale certificate issued by the Switzerland Court in insolvency proceedings is not binding upon the defendant. In such circumstances, the plaintiff is not entitled to claim any share in the suit schedule property.
23.3. He further contended that the Insolvency Court at Switzerland issued the sale certificate in favour of the plaintiff to the extent of creating litigious rights sold in respect of Himayathnagar property of defendant No.1. Basing on the same, the plaintiff ought to have filed independent suit for establishing their claim in the suit schedule property. On the other hand, the plaintiff filed suit for seeking partition and allotment of respective shares straight away in the absence of any judgment and decree passed by the Switzerland Court as required under Section 13 of Civil Procedure Code, 1908. Hence, the judgment and decree passed by the Court below is contrary to the law and the same is liable to be set aside. 32
PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021
24. Per contra, the party-in-person contended that the Court below after considering the oral and documentary evidence on record and after hearing both the parties decreed the suit by giving cogent findings in respect of each issue and there is no illegality and irregularity in the impugned judgment passed by the Court below. He further contended that the Insolvency Court at Switzerland after following due procedure passed the order against the defendant No.5 who contested the proceedings at Switzerland Court and the defendant No.5 has not questioned the orders passed by the Insolvency Court and the same is binding upon him. He further contended that pursuant to the Insolvency Court judgment only, Ex.A.1/sale certificate was issued in favour of the plaintiffs. He further contended that the plaintiff is an auction purchaser and he purchased the rights over the suit schedule property in respect of share of defendant No.5. The sale certificate/Ex.A.1 issued by the competent Court at Switzerland comes within the definition of Section 2(2) of C.P.C and also comes within the definition of Section 13 foreign judgment of C.P.C. He further contended that pursuant to the sale certificate and assignment deed, the plaintiffs rightly filed the suit for seeking partition of the suit schedule property and allotment of 1/5th share in favour of defendant No.5 and the 33 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 same to be allotted in favour of plaintiffs on the ground that as on the date of issuance of sale certificate by the Insolvency Court at Switzerland, the defendant No.5 pleaded that the suit schedule property is under joint family custody and the defendant No.5 is not having exclusive possession. In such circumstances, the Court below rightly passed the preliminary decree after adjudicating all the issues by giving cogent findings holding that the defendant No.5 is entitled 1/5th share in the suit schedule property and further held that the plaintiffs have rightly purchased the litigious property through assignment deed, sale certificate/Ex.A.1 issued by competent Court at Switzerland. Hence, the decree and judgment passed by the Court below granting preliminary decree is valid under law and there is no illegality, irregularity in the impugned judgment and the appeals filed by the defendant No.4 and defendant No.10 are not maintainable under law and the same are liable to be dismissed.
25. Sri Kowturu Pavan Kumar, learned amicus curiae submitted that the creditor/plaintiff obtained an order before the Insolvency Proceedings on 17.06.1997 and 04.08.1997. Thereafter attachment order was passed on 05.11.1997 by the Switzerland Court. Finally the Switzerland Court conducted 34 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 sale by way of auction on 10.09.2004. Plaintiffs have purchased the property through auction. Later Switzerland Court issued sale certificate/Ex.A.1 in favour of the plaintiffs in sale proceedings. The plaintiffs filed suit for partition and allotment of 1/5th share of defendant No.5 in favour of the plaintiffs basing upon the Ex.A.1/sale certificate only. Hence, the sale certificate issued by the foreign Court comes within the ambit of Section 2(2) of CPC as well as Section 13 of CPC and the suit filed by the plaintiffs is very much maintainable under law. He further submitted that the oral and documentary evidence on record shows that the properties were seized by the Switzerland Authorities under the Swiss Law when the same were already attached by the Court of I Addl. Senior Civil Judge, City Civil Court in O.S. No.164 of 1994 and were released by the said Court from attachment on 12.03.1999. As on the date of sale, auction on 10.09.2004 in Switzerland there were no attachments in respect of the said properties by any independent Courts. So, the allegations made by the appellant/D-4 in the appeal that when the attachment order was passed in O.S. No.361/1994 is continuing the Switzerland Court is not having jurisdiction, power or Authority to pass 35 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 orders and issuance of sale certificate/Ex.A.1 is contrary to the evidence on record.
26. In support of his submissions, the learned amicus curiae relied upon the reported judgment in Alcon Electronics Private Limited Vs. Celem S.A. of FOS 34320 Roujan, France and Another1.
27. The principles evolved in Alcon Electronics Private Limited concerning immovable properties, particularly Lexsitus and personal jurisdiction, the application of principles of comity in the enforcement of foreign judgment/decision, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 of CPC.
28. Having considered the submissions of the respective parties and taking into consideration the pleadings, material evidence on record, the following points arise for consideration:
1. Whether the suit filed by the plaintiffs for seeking partition of the suit schedule property into 5 shares and for separate possession and allotting one such share to defendant No.5 by metes and bounds, the 1/5th share of defendant No.5 is allotted to plaintiff No.2 the assignee of (2017) 2 SCC 253 : (2017)1 SCC (Civ) 618: 2016 SCC OnLine SC 1444. 1 36
PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 plaintiff No.1 basing on Ex.A.5/sale certificate dated 27.09.2004 is maintainable under law?
2. Whether the plaintiff is entitled for seeking partition of the suit schedule property into two equal shares in 45% share of owners and separate possession and allotment of 22.5% share of defendant No.10 in favour of plaintiff No.2, who is assignee of plaintiff No.1 is maintainable?
3. Whether the sale certificate/Ex.A.1 can be treated as Decree as envisaged under Section 2 (2) of CPC?
4. Whether the sale certificate/Ex.A.1 can be treated as foreign judgment and basing on the same the plaintiff is entitled to file suit as per the provisions of Section 13 of CPC.
5. Whether the assignment deed/Ex.A.34 is required stamp duty and registration as per the provisions of Section 35 of Indian Stamp Duty and Section 17 of Registration Act?
6. Whether the preliminary decree and judgment passed by the Court below is sustainable under law.
7. To what relief?
POINT NOS. 1 TO 7 :
29. Having considered the rival submissions and after going through the material evidence on record, it clearly shows that the plaintiffs have filed two suits viz., O.S. No. 64 of 2009 for seeking partition of the suit schedule property i.e. House bearing Municipal No.3-6-19, admeasuring 3000 square yards, situated at Himyatnagar, Hyderabad into five shares and allot one such share to the plaintiffs and also future mesne profits and O.S. No.164 of 2005 for seeking partition of the suit 37 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 schedule property i.e. House bearing No.5-9-186, Chapel Road, Hyderabad, admeasuring 1187 Square yards into five shares and allot 22.5% share of the same along with a decree for recovery of rents that have accrued from 05.11.1997 with interest and future mesne profits. The Court below after considering the evidence of P.W.1 & P.W.2 and Exs.A.1 to A.54, D.Ws.1 & 2, Exs.B.1 to B.15 in O.S. No. 164 of 2005 and evidence of P.W.1, Exs.A.1 to A.58 and evidence of Exs.B.1 to B.8 passed common judgment and decreed the suit granting preliminary decree by giving cogent findings.
30. The evidence on record further reveals that the Insolvency Court at Switzerland after following the due procedure passed the order against the defendant No.5 who contested the proceedings at Switzerland Court has not questioned the orders passed by the Insolvency Court and the same is binding upon him. Pursuant to the Insolvency Court judgment only, Ex.A.1/Sale Certificate was issued in favour of the plaintiffs. The plaintiff is an auction purchaser and he purchased the rights over the suit schedule property in respect of share of defendant No.5. The sale certificate/Ex.A.1 issued by the competent Court at Switzerland comes within the definition of Section 2(2) of C.P.C. Pursuant to the sale certificate and 38 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 assignment deed only, the plaintiffs have filed the suit for seeking partition of the suit schedule property and allotment of 1/5th share in favour of defendant No.5 and the same to be allotted in favour of plaintiffs on the ground that as on the date of issuance of sale certificate/Ex.A.1 by the Insolvency Court at Switzerland, the defendant No.5 pleaded that the suit schedule property was under the joint family possession and the defendant No.5 is not having exclusive rights over the property. In view of the same, the Court below rightly passed the preliminary decree in favour of plaintiffs holding that the plaintiffs have rightly purchased the litigious property through assignment deed, sale certificate/Ex.A.1 issued by competent Court at Switzerland.
31. The contentions raised by the learned counsel for the appellant are that the suit filed by the plaintiff for seeking partition of the suit schedule property into five shares and for separate possession and allotment of one share to 5th defendant and further allotment of 1/5th share of defendant No.5 is allotted to plaintiff No.2, the assignee of plaintiff No.1 is not maintainable under law. The sale certificate/Ex.A.1 does not come within the definition of 'decree' as defined under Section 2 (2) of CPC. and basing on the same, the Switzerland Court is 39 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 not having any jurisdiction or competency to deal with the properties situated in India especially, when the plaintiff has not filed any suit or obtained the decree and judgment in Switzerland Court. The other contention raised by the learned counsel for the appellant is that the plaintiff No.2 is only a G.P.A. holder and the plaintiff No.1 did not enter into witness box to prove her entire claim as required under law. The Court below erred in decreeing the suit basing on evidence of GPA holder. Similarly, the other ground raised by the learned counsel for the appellant is that the plaintiff is claiming the relief basing on the assignment deed which is unstamped and unregistered document and the same is inadmissible in evidence as per the provisions of Section 35 of Indian Stamp Act, 1899 and Section 17 of Indian Registration Act, 1908. The other ground raised by the appellant is that the Switzerland Court issued the Sale Certificate/Ex.A.1 in Insolvency Proceedings, wherein the defendant No.4 and defendant No.10 in both the appeals are not parties to the said proceedings and the said sale certificate issued by the Switzerland Court in Insolvency Proceedings is not binding upon the appellant. 40
PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 31.1 The last ground raised by the learned counsel for the appellant is that the Insolvency Court at Switzerland issued the sale certificate in favour of the plaintiff to the extent of creating litigious rights sold in respect of Himayathnagar property of defendant No.1. Basing on the same, the plaintiff ought to have filed independent suit for establishing their claim in the suit schedule property. On the other hand, the plaintiff filed suit for seeking partition and allotment of respective shares straight away in the absence of any judgment and decree passed by the Switzerland Court as required under Section 13 of Civil Procedure Code, 1908.
32. The party-in-person rightly contended that the creditor/plaintiff obtained an order in the Insolvency Proceedings on 17.06.1997 and 04.08.1997, thereafter attachment order was passed on 05.11.1997 by the Switzerland Court. Finally the Switzerland Court conducted sale by way of auction on 10.09.2004. Plaintiffs have purchased the property through auction. Later Switzerland Court issued sale certificate/Ex.A.1 in favour of the plaintiffs in sale proceedings. The plaintiffs filed suit for partition and allotment of 1/5th share of defendant No.5 in favour of the plaintiffs basing upon the Ex.A.1/sale certificate only. Hence, the sale certificate issued 41 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 by the foreign Court comes within the ambit of Section 2 (2) of CPC as well as Section 13 of C.P.C. and the suit filed by the plaintiffs is very much maintainable under law. He further submits that the oral and documentary evidence on record shows that the properties were seized by the Switzerland Authorities under the Swiss Law when the same were already attached by the Court of I Addl. Senior Civil Judge, City Civil Court in OS No.164 of 1994 and were released by the said Court from attachment on 12.03.1999. As on the date of auction on 10.09.2004 in Switzerland there were no attachments in respect of the said properties by any independent Courts.
33. The grounds raised by the learned counsel for the appellant are contrary to the settled principles of law. The defendant No.5 was declared as insolvent in the Insolvency Proceedings before Switzerland Court and the said Court conducted public auction in respect of share of the defendant No.5 property after following the due procedure as contemplated under law. In the said auction the plaintiff No.1 had purchased the rights over the properties of D-5. The said Switzerland Court had issued sale certificate. After issuance of the sale certificate the plaintiffs have filed suit for partition for allotment of defendant No.5 share in their favour as the properties covered 42 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 under Ex.A.1/sale certificate is in joint possession of defendant No.5 family. In view of the same, the suit filed by the plaintiffs for seeking partition and allotment of 1/5th share to the defendant No.5 is very much maintainable under law.
34. Insofar as the contention raised by the learned counsel for the appellant that the Ex.A.1/sale certificate as well as assignment deed executed by plaintiff No.1 in favour of plaintiff No.2 are required stamp duty and registration, it is to be noted that the Insolvency Court issued sale certificate/Ex.A.1 in favour of the plaintiff granting rights over the properties of D-5 and the said document is not required registration and stamp duty. Similarly, by the assignment deed executed by plaintiff No.1, who is none other than the mother of the plaintiff No.2, only assigned her rights in favour of plaintiff No.2 and the same is not required registration. Further, the plaintiffs are required to file suit for seeking partition of the suit schedule property and allotment of respective share is also not tenable.
35. With respect to the validity of the auction sale certificate, the Indian Civil Procedure Code also permits an auction sale and purchase by the creditor in Enforcement/Execution Proceedings pursuant to debt recovery auction. It has been 43 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 settled by the Hon'ble Supreme Court in various decisions that sale by auction and sale certificate issued by the authorities including confirmation of sale, which are outcome of the auction proceedings conducted in terms of Court orders need not be compulsorily registrable under Section 17 of the Registration Act.
36. It is pertinent to mention here that in the present case, the properties have been seized and realized by auction sale by the Swiss Authorities in Enforcement Proceedings pursuant to default in payment of debt which is an in personam action. The debtor submitted to the personal jurisdiction before the Swiss Courts and Authorities and surrendered his properties including in India in seizure proceedings. The debtor exhausted all his legal remedies under Swiss Law, as a result of which the properties were subject to auction sale.
37. In Morguard Investments Ltd. v. De Savoye (1990), 76 D.L.R. (4th) 256 (S.C.C.)., regardless of where the defendant was located when the action was commenced and of whether the defendant submitted to its jurisdiction in any way, the Court held that the judgment of one Canadian province should be recognized in other Canadian provinces if the recognizing Court found that there had been a real and substantial connection 44 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 between the action and the originating province. The theoretical or principled justification for this new generosity was the concept of comity and its special manifestation in Canada, the federal principle. Morguard also spoke of larger principles governing private international law generally:
38. In the case of B. Arvind Kumar v. Government of India2, the above viewpoint was reiterated as follows, "12. ...When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non-testamentary documents which require registration under sub-section (b) and (c) of section17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer."
39. In a recent case of the Delhi High Court in Toshiaki Aiba as Bankruptcy Trustee v. Vipan Kumar Sharma, 2022 SCC OnLine Del 1260, the High Court has considered India's Jurisdiction to enforce foreign bankruptcy and insolvency (2007) 5 SCC 745 2 45 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 orders. In this case a Bank of Tokyo Mitsubishi UBJ had executed a loan agreement with the shipping company. One Vipan Kumar Sharma acted as the guarantor of the shipping company. When the company defaulted in the repayment of the loan, and when the guarantor also faulted in paying the loan, the Bank declared the guarantor as bankrupt and initiated insolvency proceedings against the same. The bank then appointed a bankruptcy trustee to administer and investigate the Guarantors' estates in India to recuperate the losses. The Guarantor anticipating seizure of the properties situated in India transferred them to his relatives. The Bankruptcy moved to Delhi High Court claiming the said transfer to be fraudulent and invalid. The Delhi High Court in this context held as under:
"17. Next, it is contended on behalf of the defendants that Japan is not a reciprocating territory in respect of Section 44A of the CPC, so there cannot be any proceedings for execution of the decree of a Japanese Court.
18.In the opinion of this Court and as stated above, by the way of the present suit, the plaintiff is not seeking execution of the decree of the Japanese Court. The suit has been filed to administer the suit properties of the bankrupt defendant no. 1 towards realization of monies. Therefore, Section 44A of the CPC would have no application.
19. It is further contended on behalf of the defendants that the order dated 4th January, 2016 passed by the Tokyo District Court has no evidentiary value in India, as it is passed by the court of a non-reciprocating territory.46
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20. In this regard, reference may be made to Sections 13 and 14 of the CPC, which deal with foreign judgments. The same are set out below:
"13.Whenforeign 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 1[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 1[India].
14.Presumption as to foreign judgments. --The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction."
40. In Alcon Electronics Private Limited (supra) while analysing the aforesaid provisions, the Supreme Court has observed 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.47
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15.A glance on the enforcement of the foreign judgment, the position at 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 limited grounds enunciated 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. Further, under Section 14 CPC there is a presumption that the foreign court which passed the order is a court of competent jurisdiction which of course is a rebuttable presumption. In the present case, the appellant does not dispute the jurisdiction of the English Court but its grievance is, it is not executable on other grounds which are canvassed before us."
23. Applying the aforesaid principles to the facts of the present case, it cannot be said that judgment dated 17th June, 2016 of the Tokyo High Court, dismissing the appeal filed on behalf of the defendant no. 1, falls under any of the exceptions provided in Section 13 above. On the face of it, the aforesaid judgment fulfils the requirement of due process and was passed after noting the various contentions raised on behalf of the defendant no. 1. Therefore, the aforesaid judgment would be conclusive as to the defendant no. 1 being declared bankrupt in Japan and the plaintiff being appointed as the bankruptcy trustee to administer the estate of the defendant no. 1, even outside Japan. The plaintiff, who is the bankruptcy trustee, in the present proceedings is not seeking to execute the aforesaid judgment in terms of Section 44A of the CPC, but is acting in furtherance of the said judgment so as to administer the estate of the defendant no. 1, who has been adjudicated as being bankrupt in Japan. There is no bar under the provisions of the IBC against filing such a suit. Therefore, there is no merit in the contention that the plaintiff does not have the locus standi to file the present suit. "19.The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC. Hence, we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 CPC and it is a conclusive one. The contention of the appellant that the order is the one not on merits deserves no consideration and therefore liable to be rejected. Accordingly, Issue (i) is answered. XXX XXXXXX
37. It is to the reciprocal advantage of the courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the court. When substantive rights 48 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount. The right to 8% interest as per the Judgments Act, 1838 of UK can be recognised and as well as implemented in India."
25. In this regard, reference may also be made to the observations of the Division Bench of this Court in SRM Exploration Pvt. Ltd. v. N & S & N Consultants S.R.O., 2012 SCC OnLine Del 1714. The observations are as under:
"13. ...The world is a shrinking place today and commercial transactions spanning across borders abound. We have wondered whether we should be dissuaded for the reason of the transaction for which the appellant Company had stood surety/guarantee being between foreign companies. We are of the opinion that if we do so, we 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."
26. Applying the aforesaid principles, the judgments passed by the foreign courts have to be respected by the Indian Courts, unless the same are shown to be falling under the limited exceptions provided in Section 13 of the CPC. The Plaintiff, being the Bankruptcy Trustee appointed by the Japanese court, is seeking the assistance of the courts in India, to administer assets of defendant no. 1 in India. There is no reason why a person who has been declared bankrupt by a foreign court in terms of the law applicable to that jurisdiction, should be afforded protection by the Indian Courts on technical objections being raised with regard to the validity of the foreign judgment. In the modern times of globalization, foreign creditors cannot be treated differently from domestic creditors.
41. In Enercon (India) Ltd. v. Enercon Gmbh3the Hon'ble Supreme Court observed:
"137.The kind of difficulties that can be caused by Courts in two countries exercising concurrent jurisdiction over the same subject matter have been very succinctly set down by Lord Brandon in Abdin Vs. Daveu (supra)- as follows:
(2014) 5 SCC 1 3 49 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 "In this connection it is right to point out that, if concurrent actions in respect of the same subject matter proceed together in two different countries, as seems likely if a stay is refused in the present case, one or other of the two undesirable consequences may follow: first, there may be two conflicting judgments of the two courts concerned; or secondly, there may be an ugly rush to get one action decided ahead of the other in order to create a situation of res judicata or issue estoppel in the latter." Lord Diplock said in the same case: "Comity demands that such a situation should not be permitted to occur as between courts of two civilised and friendly states"; it would be, he said, "a recipe for confusion and injustice". As Bingham LJ said in Dupont No 1 the policy of the law must be to favour the litigation of issues only once in the most appropriate forum. The interests of justice require that one should take into account as a factor the risks of injustice and oppression that arise from concurrent proceedings in different jurisdictions in relation to the same subject matter."
42. In the instant case, the auction purchaser has obtained the sale certificate with respect to scheduled properties by following the due process of law, through the Insolvency Proceedings in Switzerland. On perusal of the documentary evidence and the legal history of the Insolvency Proceedings in the Courts of Switzerland, it can be seen that the auction sale certificate has been issued by a Court of a competent jurisdiction and thus passes the test of Section 13 of C.P.C. The auction purchaser, who has obtained the auction sale certificate, has been subjected to the strain of litigation since the last twenty years, and has been denied to enjoy the fruits of the same.
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43. Moreover, in line with Delhi High Court Judgement of Toshiaki Aiba as Bankruptcy Trustee (Supra), a case with similar facts and circumstances which held that when a person who has been declared bankrupt by foreign jurisdiction, there is no reason where Indian courts should grant them protection; there should not be any discrimination between foreign creditors and domestic creditors in cross border insolvency proceedings. Today, owing to globalisation, the world is a shrinking place, and the principle of comity of nations which has been upheld in various Indian and International courts has to be applied while facing with a situation like this.
44. The other contention raised by the learned counsel for the appellant that the plaintiff No.1 has not entered into the witness box and plaintiff No.2, who is a G.P.A. holder, alone has given evidence and basing on his evidence the Court below decreed the suit and the same is contrary to law also not tenable on the ground that the plaintiff No.1 had participated in public auction and purchased the properties of defendant No.5 and the competent Court issued sale certificate in her favour. The plaintiff No.1 and plaintiff No.2 who are mother and son jointly filed the suit for partition and allotment of respective shares of D-5 and the plaintiff No.2, who is G.P.A. holder of plaintiff No.1 51 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 entered into the witness box and gave deposition on her behalf and also entered into witness box as an independent witness as P.W.2. P.W.1 and P.W.2 proved the suit claim by producing documentary evidence also. What was deposed by plaintiff No.2 is what transpired in Switzerland Courts only and there was nothing personally known to plaintiff No.1 which could not have been deposed by plaintiff No.2.
45. Point Nos.1 to 7 are answered accordingly.
46. In view of the foregoing reasons, we are of the considered opinion that the Court below rightly passed preliminary decree in favour of the plaintiffs. Thus, viewed from any angle, there are no merits in the appeals and the same are liable to be dismissed, confirming the common judgment and decree of the Court below passed in O.S. No.164 of 2005 and O.S. No.64 of 2009 dated 10.03.2021.
47. Accordingly, the appeals are dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications if any, pending shall stand disposed of.
___________________________ JUSTICE P. NAVEEN RAO ______________________________ JUSTICE J. SREENIVAS RAO 52 PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 24-03-2023 Skj Note : L.R. Copy to be marked.
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PNR, J & JSR, J CCCA.No.47of 2021 and CCCA No.48 of 2021 HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO CCCA No.47 of 2021 and CCCA No.48 of 2021 Date : 24-03-2023.
Note : L.R. Copy to be marked.
B/o.
Skj.
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