Bombay High Court
Wesley International Ltd vs Rakesh Malhotra on 19 January, 2023
Bench: R. I. Chagla
Digitally signed
JITENDRA by JITENDRA
SHANKAR
SHANKAR NIJASURE
NIJASURE 15:10:22
Date: 2023.01.21
+0530
22-ial-30167-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO.30167 OF 2022
IN
COMMERCIAL EXECUTION APPLICATION (L) NO.30021 OF 2022
Wesley International Ltd. ...Applicant /
Decree Holder
Versus
Mr. Rakesh Malhotra ...Respondent /
Judg. Debtor
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Mr. Ashish Kamat with Mr. Akshay Doctor and Ms. Henna Daulat i/b.
M/s. Desai and Diwanji for the Applicant.
Siddhesh Bhole with Yakshay Chheda i/b. SSB Legal and Advisory for
the Respondent.
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CORAM : R.I. CHAGLA J
DATE : 19 January 2023
ORDER :
1. Mr. Ashish Kamat learned Counsel for the Applicant
seeks leave to file Affidavit of Service in the Registry. He has
submitted that service had been attempted on the Respondent /
Judgment Debtor who has refused service and thus deemed to be
good service. The Affidavit of Service shall be filed in the Registry by
22-ial-30167-2022.doc
24th January, 2023.
2. This Interim Application has been taken out in the
Commercial Execution Application. Various relief have been sought
for including deposit of a sum of INR 53,98,92,832.01 by the
Respondent / Judgment Debtor in this Court which is payable under
the judgment and decree of the Department of Justice Dubai - Courts
dated 26th September, 2004.
3. Mr. Ashish Kamat has referred to the judgment passed by
the Department of Justice Dubai - Courts dated 26th September,
2004 as well as the Certificate issued by Dubai Courts on 17th
February, 2021 wherein the Dubai - Courts has certified that the
Execution was filed by the Execution Applicant / Wesley
International Ltd on 15th January, 2019 against the Judgment Debtor
seeking for the Judgment Debtor to be ordered to pay an amount of
AED 26287092 under the said Judgment. However, to date no
amounts have been obtained in the execution file. It is a matter of
record that the judgment passed by the Department of Justice Dubai -
Courts had been appealed from which Appeal was dismissed. The
present Execution Application is taken out in view of the certificate
22-ial-30167-2022.doc
issued by the Dubai - Courts that no amounts have been obtained in
the execution file.
4. Mr. Ashish Kamat has submitted that the Respondent /
Judgment Debtor is having assets within the jurisdiction of this Court
and that in view of the said judgment passed by the Dubai - Courts of
which execution has been sought, disclosure of his assets are required
to be made by the Respondent / Judgment Debtor and pending such
disclosure, the Respondent / Judgment Debtor be restrained from
alienating his assets.
5. Mr. Ashish Kamat has referred to different proceedings in
which the Respondent / Judgment Debtor was a party and where this
Court had come down heavily on the Respondent / Judgment Debtor.
He has submitted that the Respondent / Judgment Debtor is a
habitual offendor and accordingly necessary orders be passed in
execution restraining the Respondent / Judgment Debtor from
alienating his assets.
6. Mr. Bhole, the learned Counsel for the Respondent /
Judgment Debtor has opposed any relief being granted. He has
22-ial-30167-2022.doc
submitted that the present Interim Application has not been served
on the Respondent / Judgment Debtor and he has sought time to file
Affidavit in Reply to the Interim Application. He has raised an
objection on the ground of jurisdiction of this Court to entertain the
Execution Application, given that the judgment was passed by the
Dubai - Courts on 26th September, 2004 and therefore the period of
12 years for filing execution against a decree has expired. He has
sought to rely upon relevant provisions of Code of Civil Procedure,
1908 on this ground.
7. I have noted that the Respondent / Judgment Debtor
seeks time to file Affidavit in Reply. However, at the same time it
must be noted that there is a judgment passed by the Dubai - Courts,
wherein there is monetary decree passed against the Respondent /
Judgment Debtor and certificate issued by the Dubai - Courts on 17 th
February, 2021 certifying that to date no amounts have been obtained
in the execution file. This has resulted in the present Execution
Application filed. The Dubai - Courts in passing the monetary decree
held that the Respondent / Judgment Debtor had made part payment
of the amounts owed to the Applicant / Judgment Debtor pursuant to
the Commercial transaction entered into between the parties and
22-ial-30167-2022.doc
there is a failure to make balance payment. There is a finding of
judicial admission made by the Respondent / Judgment Debtor with
regard to monies due to the Applicant / Judgment Debtor. In view
thereof, without prejudice to the rights and contentions of the
Respondent / Judgment Debtor, including on the preliminary issue of
jurisdiction of this Court to entertain the present Execution
Application, the Respondent / Judgment Debtor is required to make
disclosure in sealed cover.
8. The Respondent / Judgment Debtor shall make
disclosure in terms of the prayer clause (b) of the Interim
Application, which read thus:-
(b) that this Hon'ble Court be pleased to order the
Respondent, by himself, servants, agents, or any
persons claiming through or under him, to
disclose on oath along with supporting documents
all his assets / properties, movable or immovable,
tangible or intangible, including shares (in
physical and DEMAT forms), bank accounts,
jewellery, cash at hand, FDRs, insurance policies,
trademarks, intellectual property, etc., and also his
financial statements, Balance Sheets and Income
Tax Returns with effect from the year 2015
onwards and till date".
9. The Respondent / Judgment Debtor shall file his
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Affidavit in Reply to the Interim Application within a period of four
weeks from the date of this Order. Further, the disclosure shall be
made in terms of prayer clause (b) within a period of four weeks
from the date of this Order in sealed cover and filed in the Registry.
10. Place the Interim Application on 23rd February, 2023
under caption for ad-interim, high on board.
[R.I. CHAGLA J.]
