MASHREQ BANK Vs. NAVIN KHILNANI

JUDGEMENT

(1.) Decree Holder Mashreq Bank psc has filed this execution along with an application under O. XXI Rule 22 CPC seeking permission to execute the judgment dated 13.11.98 and decree order dated 23.11.98 passed by the Queen's Bench Division of High Court of United Kingdom in case No. 1997 M. No. 1548.

(2.) Briefly narrated, the facts leading to this execution application are that Decree Holder Bank had filed a suit for recovery of a sum of pound 5470212 along with interest thereon against the Judgment Debtor. The amount claimed was due to the Bank from Munradtech Industrial Generators Limited (for short 'MIG') of which the Judgment Debtor/ objector was a Director and had executed a guarantee dated 4.2.1993 ensuring the payment of the Bank dues. The suit was filed under the provisions of O. 14 RSC which prescribed a summary procedure in such matters. It appears from the judgment dated 13.11.98 of which a duly authenticated copy has been placed on the record that the defendant had engaged some attorneys and had also filed an application for leave to defend setting out his defence therein but did not file any affidavit in support thereof nor anybody participated in the proceedings on behalf of the defendant after initial stage. It may be pointed out here that in the defendant did not dispute the amounts due as claimed by the Bank nor denied the execution of guarantee deed. The only defence raised was that he along with his brother Deepak Khilnani were running a group of companies. The business of the company in the UK and other European countries was being run and managed by his brother Deepak Khilnani whereas other group of companies in the Middle East Countries were being run by the defendant himself. According to the defendant, his brother Deepak Khilnani did not disclose the true position regarding financial conditions of European companies to him and persuaded him to execute the guarantee deed by misrepresenting that it was only a formality to obtain further facilities from the Bank. Thus according to the defendant he has been a victim of undue influence and fraud practiced upon him by his brother of which the Decree Holder Bank had constructive notice and as such surety is entitled to wriggle out of the liability under the guarantee deed. Although there was no appearance on behalf of the Judgment Objector yet the Hon'ble Judge minutely examined this plea in the light of material on record and held that defendant's plea of having been defrauded by his brother Deepak Khilnani or exercising undue influence by misusing ostensible trust and confidence holds no water. While coming to this conclusion learned Judge took note of various factors namely that defendant himself was an experienced businessman holding MBA decree and had been representing group of companies in the Bank. Eventually the Bank's claim for the amount due along with interest thereon was upheld and the decree passed accordingly. Admittedly no appeal/ revision has been preferred against the said decision which has therefore become final. The Decree holder has filed the certificate dated 29.3.1999 from the superior court being Supreme Court of England and Wales under Section 10 of the Foreign Judgment (Reciprocal Enforcement) Act 1933 and also the original certificate dated 26.4.99 from the Supreme Court of England and Wales certifying that the judgment and decree remains wholly unsatisfied. Along with the execution, an application under O. XXI Rule 22 CPC being EA No. 177/2000 has also been filed seeking permission to execute the decree. On notice of the application being served the Judgment Debtor Navin Khilnani has filed objections under Section 47 read with O. 21 Rule 22 CPC. Main objection raised by the Judgment Debtor is that the judgment in question has not been given on merits of the case and therefore the same is not conclusive and un- executable in view of Section 13 (b) CPC. The other objection is that the decree can not be executed for want of permission of RBI under FERA. The Decree Holder has contested these objections by filing a detailed reply.

(3.) I have heard learned counsel for the parties and perused the record.