Ramesh Vangal vs Barclays Bank Plc
2021 Latest Caselaw 16070 Bom

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         ORDINARY ORIGINAL CIVIL JURISDICTION


                                       INTERIM APPLICATION (L) NO. 4886 OF 2020
                                                          IN
                                        EXECUTION APPLICATION NO.2103 OF 2019
                                                          IN
                                       COMMERCIAL SUMMARY SUIT NO.261 OF 2018


                     Ramesh Vangal                                      .. Applicant
                     In the matter between
                     Barclays Bank Plc                                  .. Plaintiff
                              v/s.
                     Ramesh Vangal                                      .. Defendant



                     Dr. Abhinav Chandrachud i/b. Shailendra Singh for the applicant.


                     Mr. Pradnyesh Sabnis a/w Ms. Krina Gandhi i/b. Wadia Ghandy & Co.
                     for the petitioner-decree holder.

                                                      CORAM : A. K. MENON, J.

DATED : 22ND NOVEMBER, 2021 P.C. :

1. The applicant is the original defendant in the suit. This is an

interim application filed by the defendant seeking recall of an

order dated 14th October, 2020 passed by this court in IA no.1 of

2019 (as numbered after filing via email) and to take appropriate

Digitally steps against the plaintiff and its officers of obtaining the signed by SANDHYA SANDHYA BHAGU BHAGU WADHWA

WADHWA Date:

2021.11.24 17:39:01 +0530

IAL-4886-20.doc wadhwa aforesaid order allegedly by practicing a fraud upon this court

and to excuse the defendant from compliance with the order.

2. I find that the applicant is a judgment debtor facing a decree

dated 22nd October, 2018. According to the defendant in an

attempt to secure the order dated 14 th October, 2020, the

plaintiff's Advocates had sent an email on 13 th October, 2020

informing the defendant that application would be taken up on

14th October, 2020 and was listed at serial no.32. The matters

were then being heard via video conference since the pandemic

driven lock-down was in force.

3. According to the defendant he is a citizen of Singapore to the

knowledge of the plaintiff and the email reached him around 9.15

p.m. It is contended that the defendant as a lay man and "non-

lawyer", was unaware of the procedure for logging into the Video

Conference. According to him, the plaintiff fraudulently did not

send a copy of the cause list of 14 th October, 2021 and the

instructions log in was available only on the cause list. The

defendant allegedly obtained a copy of the cause list several days

later after he engaged counsel in the matter. From item no.4 of the

instructions he learnt that while logging in, the serial number of

IAL-4886-20.doc wadhwa the matter was required to be mentioned. According to the

defendant, the plaintiffs suppressed this information from the

defendant who is said to have authorized the deponent of the IA

the Constituted Attorney and also a lay person and unfamiliar

how the Video Conference works in this court.

4. The Constituted Attorney is said to have logged in and was in the

lobby for the entire day. The contention is that even the said

Constituted Attorney one Anand Subramanian did not know of

the requirement of entering the serial number. Reliance is placed

on a screenshot which shows that he had logged in into the lobby

and was awaiting the matter being called. Later, on 14 th October,

2020 he was informed by an Advocate who happened to be in

the Virtual court room for a different matter, that an order had

been passed. Thereafter on 15 th October, 2020 through his

Advocates the defendant tried to mention the matter.

5. The contention is that being unable to remain present during the

hearing, no submissions could be made to oppose the application.

Dr. Chandrachud appearing in support contended that this is a

fraud perpetrated by the plaintiff not only upon the defendant but

also upon the court. In the absence of the cause list, the defendant

IAL-4886-20.doc wadhwa did not know that he was required to enter the serial number

while logging in. Thus, when the matter was called, he was not

admitted in the virtual hearing. No representative of defendant

being present, an exparte order came to be passed. He has

submitted that even otherwise, there are valid defences to the

application for execution.

6. It is contended that this court has no jurisdiction to entertain the

application under Order XXI Rule 41 firstly for the reason that

the Execution Application had disclosed some assets of the

defendant which are situated outside Mumbai. The various

companies in which the defendant held shares had their

registered offices outside Mumbai, beyond the jurisdiction of this

court and the situs of these shares were at the places where the

registered office(s) were situated. The executing court(s) would

therefore be the court within whose jurisdiction the shares are

located viz at the place(s) at which is the companies had

registered office(s). Accordingly, this court had no jurisdiction to

entertain the Execution Application or the application under Rule

21. Counsel relied upon the judgment of the Supreme Court in

Mohit Bhargava v/s Bharat Bhushan Bhargava & Ors .1 in this

1 (2007) 4 SCC 795

IAL-4886-20.doc wadhwa behalf and that of Vodafone International Holdings BV v/s. Union

of India & Anr.2

7. Dr. Chandrachud also placed reliance on Practice Note no.6 and

14 issued by the Prothonotary and Senior Master of this court on

19th February, 1997 and 22nd September, 2003. In the first

Practice Note no.6, he invites my attention to the fact that the

Bombay High Court had directed that as and when the Advocates

and the parties appearing in person move an urgent application

and/or exparte application for ad-interim relief or interim relief

they should, before moving an application, give 48 hours written

notice to the opposite side. Likewise, in Practice Note no.14, the

Advocates are required to give 48 hours written notice to the

other side. If the other side is not resident in Mumbai, four days

written notice required to be given by speed post, telegram or

registered post. He submitted that in the present case, the

plaintiffs were aware that the defendant was a citizen of

Singapore and resides in Singapore but deliberately did not give

48 hours' notice let alone 4 days' notice.

8. Dr. Chandrachud also placed reliance on an order dated 7 th

2 (2012) 6 SCC 613

IAL-4886-20.doc wadhwa February, 2018 passed by the Single Judge of this Court in Notice

of Motion no.636 of 2017 in Suit no.716 of 2017 in which the

Court directed the Prothonotary and Senior Master to issue a

notice stating that no circulation will be allowed before that court

unless 24 hours clear notice is given to the other side or to the

party in case there is no Advocate. On a query from the court as

to whether on the aspect of fraud he wishes to support the

application for recall, Dr. Chandrachud fairly submits that the

fraud is legal fraud and inasmuch as given the procedure of this

court and which is ought to be known to the plaintiff, no proper

notice has been given, shares are not even located within

jurisdiction of this court. The plaintiff being aware of the location

of some of the assets should have moved the court where the

known properties were situated and not this court where

admittedly none of the properties are situated. This conduct

amounts to a fraud in law and if the plaintiff was aware of assets

in other jurisdictions he should not have approached this court at

all. It is further contended that there is no denial of the fact that

the defendant is a resident of Singapore.

9. My attention is also drawn to a judgment of this court of

M.C.Chagla,J. as he then was, in the case of Bachubhai Manjrekar

IAL-4886-20.doc wadhwa and others v/s. Raghunath Ghanshyam Manjrekar 3 in which the

court directs that an order under Rule 41 of Order XXI may be

granted without notice to the party against whom the order is

directed only in exceptional circumstances. Dr. Chandrachud

therefore submitted that this is a fit case for recall of the order. If

the defendant would have been given a fair opportunity to attend

the hearing, he would have been able to seek time or address the

court through his constituted attorney.

10. The application is opposed on behalf of the original plaintiff

by Mr. Sabnis who points out that there is no substance in the

attempt to seek recall. There are false allegations made in the

affidavit against the plaintiffs and its Advocates which are false,

unfounded and motivated. The contention that the authorized

representative was unfamiliar with how Video Conferencing

works is also a false statement since he was already logged in to

the call. False and untenable statements have been made and the

deponent is also liable to be proceeded against for perjury. The

application was served upon the defendant as early as November

2019. Earlier the parties were heard at this stage in Summons for

Judgment. The defendant was well aware of the decree passed

3 (1942) ILR 128

IAL-4886-20.doc wadhwa against him and notice of proposed circulation was given to him

on 18th November, 2019. This is not denied by the defendant.

11. The plaintiff's Advocates thereafter vide its email dated 16 th

September, 2020 notified the defendant that circulation had been

sought. This was sent to the email address at "ramesh @katra.biz"

a soft copy was thus served upon him by email. This is the email

which is used by the defendant and he has not denied receipt of

the same. He had a sufficient opportunity to engage Advocates

and attend the matter which he has deliberately not done. The

contention that he is a lay person and hence unaware of the Video

Conferencing and the methods followed by this court, have no

substance because the defendant admits that he engaged the

counsel almost immediately after the order was passed, this is

falsified by the record itself.

12. Mr. Sabnis invited my attention to the affidavit of one Sneha

Korde, on behalf of the plaintiffs in which the contentions of the

defendant have been denied. It inter alia sets out the fact that the

defendant has always described his place of residence as 1134,

first floor, 100 Feet Road, HAL, 2nd Stage, Indiranagar, Bangalore,

including in his affidavit in reply to the Summons for Judgment

IAL-4886-20.doc wadhwa which was sworn on 6th August, 2018. I find that the affidavit

was sworn not Singapore or Bangalore or Mumbai but strangely

before a notary public in Thane, Maharashtra. Mr.Sabnis states

that the defendant has not disclosed his Singapore address in

pleadings before this court. It is contended that there is no

explanation as to why the defendant did not engage an Advocate

between November 2019 till 14 th October, 2020. On the other

hand on October 14 2020 itself at 7.49 p.m. 3 hours after the

order was passed, the defendants' constituted attorney addressed

an email along with praecipe to the registry of this court.

Reliance is placed on a copy of that email and it is urged by Mr.

Sabnis that the defendant had been aware of the matter and had

engaged attorneys and counsel, kept them informed but did not

instruct them to appear. This is indicative of a conscious attempt

to delay execution of the decree.

13. Mr. Sabnis states and in my view justifiably that there was

no obligation on the plaintiff or their Advocates to provide tutorial

services to the defendant on hearings via Video Conferencing

since the Standard Operating Procedure for VC hearings was

already published on the website of the court. He has relied upon

the instruction no.14 of the said procedure in support of his

IAL-4886-20.doc wadhwa contention and he urged the court to disbelieve the version of the

defendant that there was no access of these instructions.

14. Mr. Sabnis relied upon a decisions of this court in Vistra

ITCL (India) Limited and Ors. v/s. Sanjay D. Kakade and Ors .4,

which extensively considers powers of the court in execution and

the decision in Budhia Swain and Ors. v/s. Gopinath Deb & Ors .5

inter alia dealing with the power to recall and order in support of

the contention that there was no occasion to recall the order. Mr.

Sabnis relied upon a decision of this court in Writ petition

no.9999 of 2013 dated 28th October, 2013 which inter alia held

that only the power of review can be exercised and that the

matter cannot be reheard in the absence of the specific provisions.

15. It is noticed that the constituted attorney had addressed an

email on 14th October, 2020 itself at 7.49 p.m. presumably Indian

standard time to the registry with certain attachments. Copy of

this was also sent to the Advocate in the matter who were already

engaged.

16. Furthermore, Mr. Sabnis had drawn my attention to the

4 MANU/MH/3665/2018 5 (1999) 4 SCC 396

IAL-4886-20.doc wadhwa email dated 16th September, 2020 addressed by the Advocates for

the plaintiff to the defendant at 6.38 p.m. informing him of the

fact that they would be seeking circulation of the IA seeking relief

against him on 21st September, 2020 before this court and they

would share the link once it was received from the registry of the

High Court. This email reiterates that the proceedings have

already been served on the defendant on 11 th November, 2019

but once again forwarded the Interim Application and Execution

Application by way of attachments in that email. There is no

reply to this email

17. In rejoinder Dr. Chandrachud has relied upon an affidavit

of the constituted attorney of the defendant dated 24 th October,

2020 reiterating the contents of IA and in the context of the

plaintiffs' Advocates having sent the email dated 16 th September

2020, the rejoinder seeks to set up the defendant's case that

defendant uses the iCloud application and due to some technical

problems the defendant did not receive the email dated 16th

September, 2020. He claims that he has asked his IT Manager to

investigate whether the email had been received and the IT

Manager apparently responded in the negative and found that the

mails between 3rd September to 17th September i.e. following the

IAL-4886-20.doc wadhwa date of the email transmission to the defendant were missing and

that he had no idea what happened in between those two dates.

18. This is an explanation that I find difficult to accept and is

far from satisfactory. I queried Dr. Chandrachud as to whether

the email logs of the service provider used by the defendant at

domain katra.biz were relied upon in support to which counsel

answered that he would have to seek instructions. It is in my view

an afterthought and probably an attempt to suppress receipt of

the email dated 16th September 2020 since the deponent does not

deny receipt of the email. To suggest that the emails for these

dates had disappeared without relying on any of the logs is in my

view once more attempt to obfuscate. So are the contentions

advanced by the defendant as to non-receipt of instructions for

logging in.

19. It is common knowledge to all practitioners in this court

that Practice Notes no.6 and 14, are not binding upon the court

and relief could be granted and Practice Notes themselves clarify

that the procedure parties are expected to follow does not

preclude the court from granting relief in the appropriate cases

and in the instant case an order of disclosure has been passed

IAL-4886-20.doc wadhwa since there was absolutely no reason to deny, such an order of

disclosure. The fact that the defendant and his constituted

attorney relies upon these Practice Notes indicate that they had

access to the website of this court which also had information of

the cause lists and VC instructions. I therefore find the

contentions of the defendant devoid of merit.

20. The fact that application under Order XXI Rule 41 is

maintainable in this court cannot be doubted and the contention

that such an application ought to have been made in one of the

courts wherein the shares are said to be located must be rejected.

It is well established that the executing court may pass such

orders for ad-interim relief in execution as may be found

necessary. This court has in United Phosphorous Ltd. v/s. A. K.

Kanoria6 held that an application under Order XXI Rule 41 is not

an application for execution of the decree but merely an aid to the

decree holder to enable him to obtain information which is

within the special knowledge of the judgment debtor. Although

ordinarily such an application would precede the filing of an

execution petition, such application could also be filed in a

pending execution petition. Thus, the court has clearly recognized

6 2002 (4) Mh.L.J. 358

IAL-4886-20.doc wadhwa the need for collecting information in order to enable to the

judgment creditor to proceed in execution. It is this that the

plaintiff sought to achieve by filing the IA in which the order now

sought to be recalled was passed.

21. Dr. Chandrachud had relied upon the decision of the

Supreme Court in Meghmala and Ors. v/s. G. Narsimha Reddy

and Ors.7 and the observation in para 36 that in judicial

proceedings, once the fraud is proved, all advantages gained by

playing fraud can be taken away and suppression of any material

fact or document amounts to a fraud on the court and every

court had inherent power to recall its own order obtained by the

fraud and the order so obtained is non-est. It will be apposite to

refer to the judgment of the Supreme Court in Rahul S.Shah V/s.

Jinendra Kumar Gandhi & Ors.8 in which the Apex Court has

considered the long delays that judgment creditors had to put up

with on account of delay in tactics employed by judgment debtors

and the Supreme Court has this to say in paragraph 25 about the

conduct of judgment debtors.

"25. These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree.

7 (2010) 8 SCC 383 8 2021 SCC OnLine SC 341

IAL-4886-20.doc wadhwa However, there is steady rise of proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to."

22. In my view the present application is an attempt to delay to

process of execution. This is evident from the fact that no appeal

has been filed against the decree which today holds the fort, at

least the pendency of appeal has been brought to the attention of

this court and I am inclined to hold that the present application

seeking recall is an abuse of process. In this context, paragraph

40 of the judgment in Rahul Shah (supra) is also relevant and is

reproduced below;

"40. In Ghan Shyam Das Gupta v/s. Anant Kumar Sinha, this Court had observed that the provisions of the Code as regards execution are of superior judicial quality than what is generally available under the other statutes and the Judge, being entrusted exclusively with administration of justice, is expected to do better. With pragmatic approach and judicial interpretations, the Court must not allow the judgment debtor or any person instigated or raising frivolous claim to delay the execution of the decree. For example, in suits

IAL-4886-20.doc wadhwa relating to money claim, the Court, may on the application of the plaintiff or on its own motion using the inherent powers under Section 151, under the circumstances, direct the defendant to provide security before further progress of the suit. The consequences of non-compliance of any of these directions may be found in Order XVII Rule 3."

23. In fact in paragraph 42, sub-para 8 sets out that the court

in a money decree must invariably resort to a decree for a

payment of money on oral application. This judgment highlights

the persisting problems in the path of administration of justice at

the final stage of execution. I do not find any element of fraud in

the present case. The contention that the legal fraud has been

perpetrated is frivolous. The order was passed on an application

in aid of execution and to that end an appropriate relief was

granted.

24. I may observe here that all along several attempts have been

made to urge this application has been listed on several occasions

and on each occasion the counsel for defendant has submitted

that the disclosure affidavit is kept ready and will be filed if the

order is not recalled. An attempt therefore is to resist execution

on ground which I find frivolous including the ground he

contended that the constituted attorney was logged in and was

IAL-4886-20.doc wadhwa unaware of how to enter the Video conferencing. All along, he

had option of seeking legal advice soon after the papers were

served on him on 18 th November, 2019. The defendants

contention that his iCloud account does not reflect the email as

having been received is again difficult to accept as a bonafide

ground. The defendant also deliberately omitted to disclose the

logs of his email account. Even otherwise the defendant has

sufficient opportunities to seek legal advice and entering

appearance after the papers were served upon him in November

2019 but did not. Thus, on merits the contention of the defendant

that he was completely unaware of the procedures of joining a

virtual hearing is difficult to accept and borders on dishonesty.

25. Thus, an order of aid of execution is the least the court

passing a decree must grant pending execution. The contention

of the defendant that having disclosed the existence of certain

properties which are located outside the jurisdiction of the court,

the application in execution ought to have been made in that

court has no merit. Assets that have been identified has been

located in the jurisdiction of some other court can obviously

proceeded against resorting to Order XXI Rule 41. The very

IAL-4886-20.doc wadhwa purpose of incorporating Rule 41 is to ascertain the property of

the judgment debtor and the means of satisfying the decree. The

law does not mandate that the judgment creditor is obliged to first

proceed against the property already disclosed in some other

jurisdiction. If the judgment creditor is desirous of obtaining

information of other assets and other property within jurisdiction

of this court, he is entitled to do so under Rule 41. Besides the

language of Rule 41 empowers the judgment debtor to be orally

examined "as to whether any or what debts are owing to the

judgment debtor and whether the judgment debtor has any and

what other property or means of satisfying the decree." This right

to seek such disclosure is also reiterated in Rule 41(2) which

states that if the decree for payment of money has remained

unsatisfied for 30 days, the court may without prejudice to power

under Sub-Rule (1) of aforesaid, direct the judgment debtor to

make an affidavit stating the particulars of the assets of the

judgment debtor. Non-disclosure pursuant to such orders has

serious consequences. Thus, the order dated 14 th October, 2020 is

not an order in execution but only an aid in the process of

execution. It is the satisfaction of the court which is material there

is precious little that the defendant an urge against such

IAL-4886-20.doc wadhwa disclosure and in the facts at hand, I am of the view that the

current application seeking recall is frivolous.

26. In these circumstances, I find no merit in this application

and I therefore pass the following order;

    (a)      Interim Application is dismissed

    (b)      The defendant shall pay to the plaintiff costs quantified at

             Rs.50,000/- within two weeks.




                                                             (A. K. MENON, J.)





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