BANK KREISS Vs. ASHOK K CHAUHAN

JUDGEMENT

(1.) This is an application under Order 6 Rule 17 of Code of Civil Procedure seeking amendment in respect of paras 6A and 17 of the plaint. Relevant facts lie in moderate compass.

(2.) The plaintiff is a body incorporated under the laws of Germany and its registered office is situated at Mainzer Landstrasse 46, 60325 Frankfurt. In the course of its business transactions the plaintiff granted a credit line facility based on the financial state of the said company. The credit line extended to the aforesaid company, the plaintiff accepted a surety-ship Bond up to an amount of DM 12,3030. The surety - ship bond was executed by defendant No.1 in early 1994. The said company projected a loss of DM 53,500,000.00 instead of surplus. As a result, the plaintiff was forced to face consequences with the said company and took recourse to the guarantee executed by defendant No.1 by instituting a legal action in the nature of civil suit for the recovery of money. Recourse to the aforesaid guarantee was first invoked on 13th July, 1994 and subsequently by instituting civil suit for recovery of money against defendant No.1 on 23rd September, 1994 in the said Frankfurt Court, a foreign Court.

(3.) The suit was decreed vide judgment dated 17.1.1995 by holding that the total liability of defendant No.1 on the date of judgment was to the tune of DM 4,450,110.77 and US dollar 3,276,49859.00. Since defendant No.1 did not discharge its liability, the interest amount continued mounting. Plaintiff has filed the instant suit with the prayer that plaintiff is entitled to a decree for recovery of money for the claimed amount from this Court on the basis of foreign decree-cum- judgment passed by the said court of Frankfurt. As it was alleged by the plaintiff that defendant No.1 in order to defraud his creditors including the plaintiff transmitted a huge amount of its assets to India, the details of which were provided in the list annexed with the suit. It was also alleged that in order to defraud the creditors, defendant No.1 constituted certain trusts namely defendants 5 to 8 which own huge property in India and these properties were procured by the assets transferred to India by defendant No.1. Since decree remained un-satisfied, the plaintiff's suit was in substance in the nature for implementation of a foreign decree in view of the fact that there is no reciprocal arrangement for execution of decree in India in view of the provisions of 44 of CPC. Thus, according to the plaintiff, these proceedings are de facto in the nature of execution proceedings. The plaintiff also took the plea that it is entitled to a decree of recovery of money for the claimed amount from this Court on the basis of the decree- cum- judgment passed by the said court of Frankfurt and also reserved its right to claim the remaining amount at the subsequent stage for which leave was prayed.