Telangana High Court
Mahmood Hussain Khan vs Madame Canisia Ceizar And 7 Others on 24 March, 2023
Bench: P Naveen Rao, J Sreenivas Rao
1
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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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
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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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
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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
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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
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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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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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CCCA.No.47of 2021 and
CCCA No.48 of 2021
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.
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CCCA.No.47of 2021 and
CCCA No.48 of 2021
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
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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
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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.
PNR, J & JSR, J
CCCA.No.47of 2021 and
CCCA No.48 of 2021
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
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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
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.
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.
PNR, J & JSR, J
CCCA.No.47of 2021 and
CCCA No.48 of 2021
