BANK OF BARODA Vs. ING VYSYA BANK LTD.

JUDGEMENT

(1.) The revision is filed by the Bank of Baroda having its head office at Baroda and corporate office at Mumbai challenging the order passed by the 19th Addl. City Civil & Sessions Judge, Bangalore in Ex.No.1576/2009 dismissing the execution petition as barred by limitation.

(2.) The decree holder is represented by the General Manager, Bank of Baroda. The Court of Justice Queens Bench of London passed a decree on 20th February, 1995 in favour of the decree holder bank against the respondent Bank for recovery of amount of about 12,78,909.26 US $ and cost of 1,80,867.15 pounds with interest at 8% per annum from the decree holder by the judgment debtor on account of the negotiation and discount by the decree holder of the letter of credit issued by the judgment debtor. After service of summons on the respondent, it has duly submitted to the jurisdiction of the learned court. Respondent judgment debtor failed to honour the decree and make payment due to the decree holder on account of the negotiation and discount by the decree holder of the letter of credit issued by the judgment debtor. The respondent failed to honour the decree and make payment due to the decree holder. After the judgment was pronounced, respondent judgment debtor placed an inter bank deposit of 1,40,000 US $ with the decree holder and requested not to put up the judgment into execution. After lapse of eight years, going back on the promises, the judgment debtor bank claimed the deposit back and filed an application for its recovery before the Debt Recovery Tribunal in OA 111/2003. The decree holder has raised the basic plea of jurisdiction on maintainability of such an action which is pending consideration in appeal before the Debt Recovery Appellate Tribunal, Chennai because the Debt Recovery Tribunal having denied to decide it as a preliminary issue and refusing the decree holders plea to amend the written statement, it is necessary that the decree should be executed against the judgment debtor by attaching the properties for recovery of the amount due to the decree holder. It is contended that the execution petition is filed within the period of limitation as limitation commences from the date of submission of the certified copy of the decree in the District Court. In support of his contention, counsel for the revision petitioner has referred to the Full Bench decision of the Madras High Court in the case of Sheik Ali Vs Sheik Mohammed, 1967 AIR(Mad) 45 wherein it is held that Limitation Act will apply in respect of execution of a decree passed by the foreign court from the date of deposit of the certified copy of the decree with the local district court under S.44 A of the CPC r/w O 21 R 3, CPC. The execution petition filed by the decree holder is for the recovery of amount of Rs.16,43,88,187.86 and also attachment of movables including inter bank deposit of US $ 14,00,000/- made by the judgment debtor with the decree holder from Mumbai Main Office. The Execution Petition filed on 5.8.2009 was assigned to the 19th Addl. City Civil Judge on 31.8.2009. The judgment debtor filed a counter to the Execution Petition 1576/2009 dated 11.10.2010. Execution Petition was dismissed by the Executing Court on the point of limitation on 20.7.2013.

(3.) As per the respondent's counsel, there was no opportunity to the judgment debtor to appear before the Queens Bench Division, Court of London. The order was passed behind the back. The judgment is passed by the Queens Bench on 20.2.1995 whereas OS 358/1992 was disposed of by the III Addl. Civil Judge (Sr.Dvn.), Secunderabad on 31.12.2007 and this judgment was delivered subsequent to the judgment of the Queens Bench. Therefore, question of bringing it to the notice of the Queens Bench of the judgment in OS 358/1992 does not arise at all. The decree holder has not pleaded the filing of OS 358/1992 and its disposal by the Civil Judge (Sr.Dvn.), Secunderabad on 31.12.2007. The judgment delivered by the Queens Bench was the subject matter in OS 358/1992. As could be seen, the Letter of Credit bearing No. HYD/FLC/25/92 was the subject matter in OS 358/1992 wherein an order of temporary injunction is passed restraining defendants 1 and 3 ING Vysya Bank and Bank of Baroda from making any payment to the 2nd defendant M/s Granada Worldwide Investments Ltd. The said order of the Civil Judge (Sr.Dvn.) amounts to resjudicata since the Letter of Credit was already decided by the Queens Bench. The decree holder is not the holder in due course. The order if any, passed by the Queens Bench is in breach of Indian law and it is not conclusive as per S.13, CPC.