MESSER GRIESHEIM GmbH vs GOYAL MG GASES PVT. LTD.

MESSER GRIESHEIM GmbH vs GOYAL MG GASES PVT. LTD. - Supreme Court Case 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 521 OF 2022

(Arising out of SLP(Civil) No(s). 22539 of 2014)

MESSER GRIESHEIM GmbH

(NOW CALLED AIR LIQUIDE

DEUTSCHLAND GmbH) …APPELLANT(S)

VERSUS

GOYAL MG GASES PVT. LTD. …RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. The appellant/decree holder has challenged the judgment of

the Division Bench of the High Court of Delhi dated 1st July, 2014

relegating to file a petition for execution of a money decree dated 7th

February, 2006(in excess of Rs. 20 lakhs) of a foreign Court

indisputedly notified as a superior Court of a reciprocating territory

before the District Court in view of Section 44A of the Code of Civil

Procedure, 1908(hereinafter being referred to as the “Code”).

3. It is an old saying that the difficulties of the litigant in India

begin when he has obtained a decree. The evil was noticed as far

back in 1872 by the Privy Council in relation to the difficulties faced

by the decree holder in execution of the decree (MIA p.612)1

. After

more than a century, there has been no improvement and still the

decree holder faces the same problem what was being faced in the

past. A litigant coming to Court seeking relief is not interested in

receiving a paper decree when he succeeds in establishing his case.

What he primarily wants from the Court of Justice is the relief and

if it is a money decree, he wants that money what he is entitled for

in terms of the decree, must be satisfied by the judgment debtor at

the earliest possible without fail keeping in view the reasonable

restrictions/rights which are available to the judgment debtor

under the provisions of the statute or the code, as the case may be.

1 General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 :

20 ER 912

4. Instant case is the live illustration before us where the decree

holder was able to get a money decree of a foreign Court which is

notified as a superior Court of a reciprocating territory way back on

th February, 2006 and after 16 years have been rolled by, still the

screen is smokey and not clear as to which is the forum where he

could approach for execution of a decree.

5. The brief facts culled out from the record are that the

appellant initiated proceedings before the High Court of Justice,

Queen’s Bench Division, Commercial Court, United

Kingdom(“English Court”) which is a superior Court of a

reciprocating territory(namely, United Kingdom of Great Britain and

Northern Island) notified under Section 44A of the Code vide

Notification No. SRO 399 dated 1st March, 1953 issued by the

Ministry of Law as amended by GSR 201 dated 13th March, 1958.

6. Earlier, a default decree was passed due to nonappearance of

the respondent/judgment debtor in UK Court on 6th February,

2003. The appellant issued a winding up notice to the respondent,

who objected the same as the judgment dated 6th February, 2003

was a default decree. To meet the objection raised by the

respondent, the appellant approached the English Court and

sought setting aside of the default decree and prayed for passing a

decree on merits of the case. At this juncture, the respondent

entered appearance and the English Court by a judgment and

decree dated 7th February, 2006 granted a money decree for a

principal sum of US $ 5,824,564.74.

7. It is pertinent to note that the respondent did not file any

appeal against the judgment and decree dated 7th February 2006

and that has attained finality.

8. The total decretal amount indisputedly on the date of filing of

the execution petition before the Delhi High Court on 27th April,

2006 was exceeding Rs. 20 lakhs which was the pecuniary limits of

the Delhi High Court in terms of Section 5(2) of the Delhi High

Court Act, 1966(hereinafter being referred to as “Act 1966”) which

was later enhanced to Rs.2 crores in the year 2015, to entertain the

execution petition as the principal Court of original jurisdiction.

9. It has been alleged by the appellant that the decretal amount,

if it is taken at the face value as on 20th January, 2022, may come

to approximately Rs. 99 crores.

10. The appellant filed a petition for execution of money decree in

the High Court of Delhi on 27th April, 2006. A reply to the

execution petition was filed by the respondent on 17th January

2007, raising several objections which are available at its command

as envisaged under Section 13 of the Code. Later a further

objection was raised that the High Court of Delhi has no

jurisdiction to entertain the execution petition in view of Section

44A of the Code.

11. Learned Single Judge of the High Court overruled the

preliminary objections and held that taking value of the execution

of the money decree dated 7th February, 2006 of the English Court

exceeding Rs. 20 lakhs, at given point of time, i.e., 27th April,

2006(the day on which the execution petition was filed), High Court

of Delhi holds the exclusive jurisdiction of ordinary original civil

jurisdiction and after meeting out other objections on merits

decided the execution petition by a judgment dated 29th November,

2013. The operative part of the judgment are as under:

E.A. No. 653 of 2009

69. This is an application by the DH for a direction to the JD to

deposit the original title deeds of Sahibabad property.

70. For the reasons stated therein, the application is allowed and

a direction is issued to the JD to deposit the original title deeds of

the property, land measuring 18774 sq. yds. At 8/7, SiteIV,

Sahibabad, Industrial Area, Sahibabad, District Ghaziabad in the

Court within two weeks, and when so deposited, it shall be kept in

a sealed cover by the Court. At the time of filing the original title

deeds, the JD will deliver to the learned counsel for the DH a

photocopy thereof.

EA No. 654 of 2009

71. By this application, the DH seeks a clarification that the

order dated 3rd November, 2009 passed by the Court releasing the

lien on the property at Ghaziabad, Uttar Pradesh should be made

conditional upon the Managing Director (MD) or any other

competent director of the JD furnishing a written undertaking that

the Ghaziabad property is free from all encumbrances and further

than no written consent from the State Bank of India (‘SBI’) under

Clause 11 of the agreement for hypothecation of goods and assets

dated 24th November, 2008 is required.

72. Despite notice having been served in both these applications

way back on 20th November 2009, no reply has been filed to this

application.

73. Consequently, the application is allowed and a direction is

issued to the MD/authorized Director of the JD to file an affidavit

in this Court within two weeks clarifying (a) that the property at

Sahibabad, Ghaziabad is free from all encumbrances or charge as

on the date of the order dated 3rd November, 2009; (b) that no

written consent from the SBI under Clause 11 of the Agreement for

hypothecation of the goods and assets dated 24th November, 2008

is required for enforcing the said order visàvis the said Sahibabad

property in terms of the statement made by the JD to the Court on

27th April, 2006 and (c ) that, as on date, there is no lien/charge

etc. created on the Sahibabad property.

74. The application is disposed of.”

12. The judgment of the learned Single Judge of the High Court of

Delhi dated 29th November, 2013 was assailed by the respondentjudgment debtor before the Division Bench of the High Court.

13. The Division Bench of the High Court, in the facts and

circumstances, considered it appropriate to examine the singular

issue confining it to the jurisdiction of the High Court of Delhi in

executing the money decree dated 7th February, 2006 of the English

Court, in exercise of its original jurisdiction in terms of Section 44A

of the Code and after the parties being heard, arrived at the

conclusion that Section 44A is an independent right conferred on a

foreign decree holder for enforcement of its decree in India. It is a

fresh cause of action and has no corelation with jurisdictional

issues. The scheme of Section 44A of the Code is alien to the

scheme of domestic execution as provided under Section 39(3) of

the Code and finally held that the High Court of Delhi, not being a

District Court, in terms of Section 44A of the Code, is not vested

with the jurisdiction to entertain execution petition and directed to

be transferred to the Court of District Judge within whose

jurisdiction the property sought to be attached is situated for being

dealt with in accordance with law, which is a subject matter of

challenge in appeal before us.

14. Dr. Abhishek Manu Singhvi, learned senior counsel appearing

for the appellant submits that the jurisdiction for execution of a

foreign Court’s decree of a reciprocating territory vests with the

High Court of Delhi, provided the value of the money decree exceeds

the pecuniary limits as notified under Section 5(2) of the Act 1966.

15. Learned counsel further submits that it is not in dispute that

the judgment and decree dated 7th February, 2006 has been passed

by a notified superior Court of the reciprocating territory, namely,

United Kingdom of Great Britain and Northern Ireland within the

meaning of Section 44A of the Code in terms of a notification dated

st March 1953 issued by the Ministry of Law. The High Court of

Delhi also vests with the ordinary original civil jurisdiction, subject

to the pecuniary limits as being notified under Section 5(2) of the

Act 1966 and it would be impossible to read into Section 44A that

even though the pecuniary jurisdiction of a civil Court(which lacks

the pecuniary jurisdiction) is restricted, only for the purpose of

execution of a foreign decree, it becomes a District Court in respect

of the matters which fall within the ordinary civil jurisdiction of the

High Court and when there is a split jurisdiction in the cities like

Delhi, Kolkata, Chennai and Mumbai, the High Court would have to

be considered to be included as “a principal civil Court of original

jurisdiction” where it exceeds its pecuniary jurisdiction as being

contemplated in the respective statutes alike Section 5(2) of the Act

1966 in the instant case.

16. Learned counsel further submits that there can be two or

more Courts which are concurrently a principal civil Court of

original jurisdiction subject to their pecuniary limits as being

envisaged under Section 5(2) of the Act 1966. If that being so, if

pecuniary jurisdiction exceeds what is prescribed/notified under

the Act, it is the High Court of Delhi which will be considered to be

the principal Court of original civil jurisdiction as defined under

Section 5(2) of the Act 1966 and the execution petition being a

continuation of the suit proceedings, the Division Bench of the High

Court has committed a manifest error in holding that the High

Court of Delhi is not vested with the jurisdiction to entertain an

execution petition as being a District Court defined in terms of

Section 44A of the Code.

17. Per Contra, Mr. Rakesh Dwivedi, learned senior counsel for

the respondent, while supporting the finding recorded in the

impugned judgment, submits that Section 44A is an independent

right conferred on a foreign decree holder for enforcement of its

decree in India and the scheme of Section 44A of the Code is alien

to the scheme of domestic execution as provided under Section

39(3) of the Code. The domestic decree can indeed be executed by

the Court which passed the decree or Court of competent

jurisdiction to which it is transferred for execution. So far as

execution of foreign decree is concerned, it is being governed by an

independent right conferred under Section 44A of the Code which

unequivocally confers exclusive jurisdiction in this regard on a

“District Court” and the words mandating the competence of the

executing Court, to try the original cause, in which the decree was

passed, are conspicuous by their absence, in this provision.

18. To be more specific, learned counsel submits that Section 44A

of the Code is in the nature of an independent, enabling provision

which gives the decree holder a fresh and new cause of action

irrespective of the original character of the cause in which the

decree came to be passed.

19. Learned counsel further submits that so far as the pecuniary

competence to try a suit of the decretal amount is concerned, it may

be in the context of the domestic decree for execution as referred to

under Sections 38 and 39 of the Code and once Section 44A confers

exclusive jurisdiction on District Court in which the money decree

of a foreign Court has to be filed for execution, no other Court holds

competence other than the District Court for execution of a foreign

decree.

20. Learned counsel further submits that Section 5(2) of the Act

1966 conferred with a limited ordinary original civil jurisdiction qua

‘suits’ above a certain pecuniary value and further submits that the

expression “suit” as used in Section 5(2) of the Act 1966 has to be

understood in its ordinary, limited sense of a ‘Civil Suit’, and will

not include execution proceedings. Section 4 of the Delhi High

Court(Amendment) Act, 2003 draws a distinction between a “suit”

and “other proceedings” and submits that it is the District Court

alone which holds jurisdiction for executing a foreign decree and no

error has been committed by the High Court in the impugned

judgment which may call for interference of this Court.

21. We have heard learned counsel for the parties and with their

assistance perused the material available on record.

22. The question that emerges for our consideration is whether the

High Court of Delhi in exercise of its original jurisdiction is a

competent Court to entertain a petition for executing a money

decree(in excess of Rs.20 lakhs) of a foreign Court which is notified

as a superior Court of reciprocating territory under Section 44A of

the Code.

23. It is not disputed that so far as the expression “superior Court

of any reciprocating territory” as defined under Section 44A of the

Code is concerned, the judgment and decree dated 7th February,

2006 has been passed by the notified superior Court of the

reciprocating territory, namely, United Kingdom of Great Britain

and Northern Ireland within the meaning of Section 44A of the Code

vide notification dated 1st March, 1953 issued by the Ministry of

Law, thus it leaves no doubt that the decree of the High Court of

England would be considered to be a decree of superior Court of a

reciprocating territory.

24. In order to appreciate the submissions made, it may be

relevant to first take a look at the scheme of the Code and also

relevant provisions of the Act 1966 which are reproduced

hereunder:

“Section 2(4) of the Code – “District”

“district” means the local limits of the jurisdiction of a principal

Civil Court of original jurisdiction (hereinafter called a “District

Court”), and includes the local limits of the ordinary original civil

jurisdiction of a High Court;

Section 6 of the Code – “Pecuniary Jurisdiction”

Save in so far as is otherwise expressly provided, nothing herein

contained shall operate to give any Court jurisdiction over suits the

amount or value of the subjectmatter of which exceeds the

pecuniary limits (if any) of its ordinary jurisdiction.

Section 13 of the Code – “When Foreign Judgement 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;

be founded on an incorrect view of international law

or a refusal to recognise the law of 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 India.

Section 44A of the Code “Execution of Decrees passed by

Courts in reciprocating territory”

(1) Where a certified copy of a decree of any of the superior courts

of any reciprocating territory has been filed in a District Court, the

decree may be executed in India as if it had been passed by the

District Court.

(2) Together with the certified copy of the decree shall be filed a

certificate from such superior court stating the extent, if any, to

which the decree has been satisfied or adjusted and such

certificate shall, for the purposes of proceedings under this section,

be conclusive proof of the extent of such satisfaction or

adjustment.

(3) The provisions of Section 47 shall as from the filing of the

certified copy of the decree apply to the proceedings of a District

Court executing a decree under this section, and the District Court

shall refuse execution of any such decree, if it is shown to the

satisfaction of the court that the decree falls within any of the

exceptions specified in clauses (a) to (f) of Section 13.

Explanation 1.—“Reciprocating territory” means any country or

territory outside India which the Central Government may, by

notification in the Official Gazette, declare to be a reciprocating

territory for the purposes of this section; and “superior courts”,

with reference to any such territory, means such Courts as may be

specified in the said notification.

Explanation 2.—“Decree” with reference to a superior court means

any decree or Judgment of such Court under which a sum of

money is payable, not being a sum payable in respect of taxes or

other charges of a like nature or in respect of a fine or other

penalty, but shall in no case include an arbitration award, even if

such an award is enforceable as a decree or Judgment.]]

Section 5 Delhi High Court Act, 1966 – “Jurisdiction of High

Court of Delhi”

(1) The High Court of Delhi shall have, in respect of the territories

for the time being included in the Union Territory of Delhi, all such

original, appellate and other jurisdiction as, under the law in force

immediately before the appointed day, is exercisable in respect of

the said territories by the High Court of Punjab.

(2) Notwithstanding anything contained in any law for the time

being in force, the High Court of Delhi shall also have in respect of

the said territories ordinary original civil jurisdiction in every suit

the value of which exceeds Rupees twenty lakhs.

25. The expression ‘District” is defined under Section 2(4) of the

Code and the term “District Court” referred under Section 44A of

the Code although not defined, but on conjoint reading of the

provision makes it clear that it refers to the local limits of the

jurisdiction of a principal civil Court of original jurisdiction

(provisions of the Code called a “District Court”) and it includes the

local limits of the ordinary original civil jurisdiction of a High Court

and it is not disputed that principal civil Court of original

jurisdiction is normally a District Court (with whatever change in

the nomenclature) and the High Courts in India exercising ordinary

original civil jurisdiction are not too many, but where there is a split

jurisdiction based on its pecuniary value, notified from time to time,

the District Court or the High Court in its ordinary original civil

jurisdiction is competent to exercise power for execution of decree,

including money decree of the foreign Court of reciprocating

jurisdiction, provided other conditions are complied with as

contemplated under Section 44A of the Code.

26. Section 44A of the Code provides for execution of decrees

passed by the foreign Courts in reciprocating territories. It, inter

alia, stipulates that where a certified copy of a decree of any of the

superior Court of any reciprocating territory has been filed in a

District Court, the decree may be executed in India as if it had been

passed by a District Court. Together with the certified copy of the

decree, a certificate from such superior court is to be filed stating

the extent, if any, to which the decree has been satisfied or

adjusted. Such a certificate is the conclusive proof of the extent of

such satisfaction or adjustment. Subsection 3 of Section 44A of

the Code further lays down that provisions of Section 47 of the

Code shall apply to such execution proceedings and the Court can

refuse execution of any such decree, if it is shown to the

satisfaction of the Court that the decree falls within any of the

exceptions specified in clauses (a) to (f) in Section 13 of the Code.

27. The ordinary original civil jurisdiction of the High Court is

always exercised, based on pecuniary limits. It would be impossible

to read into Section 44A of the Code that even though the pecuniary

jurisdiction of Civil Court is restricted, still for the purpose of

execution of a foreign decree, it becomes the District Court in

respect to those matters which fall within the ordinary original civil

jurisdiction of the High Court and the expression “district” defined

under Section 2(4) of the Code will have to be given its true effect.

To read the expression “District Court” in Section 44A for execution

of foreign decree, it will be construed to be a Court holding ordinary

original civil jurisdiction in terms of its pecuniary limits as being

notified under Section 5(2) of the Act 1966.

28. It leaves no manner of doubt that once the pecuniary

jurisdiction at the given point of time exceeded Rs. 20 lakhs as

notified by the High Court under Section 5(2) of the Act 1966 (later

vide notification dated 10th August, 2015 (w.e.f. 26th October, 2015)

pecuniary limits has been revised to Rs.2 crores), it is the High

Court of Delhi which holds its exclusive jurisdiction as ordinary

original civil jurisdiction to execute a foreign decree under Section

44A of the Code and it goes without saying that execution always is

in continuation of the proceedings.

29. Section 24 of the Punjab Courts Act 1918, of which the

Division Bench has put its emphasis, which is applicable to Delhi,

the Court of District Judge would be the principal civil Court of

original jurisdiction. Under Section 5(1) of the Act 1966, the High

Court of Delhi exercises all such original, appellate and other

jurisdiction as was exercisable by the High Court of Punjab in the

Union Territory of Delhi. Then, there is Section 5(2) of the Act 1966

which starts with a nonobstante clause which empowers the High

Court of Delhi to exercise its ordinary original civil jurisdiction in

every suit where the pecuniary value exceeds, as being notified by

the competent authority and thus, the High Court of Delhi indeed

holds original civil jurisdiction in a suit where the value exceeds its

pecuniary limits and if Section 24 of the Punjab Courts Act, 1918 is

read with Section 5(2) of the Act 1966, it is quite clear that certain

jurisdiction has been taken away from the District Court and

conferred with the High Court of Delhi and this original civil

jurisdiction is only in respect to the suits where the pecuniary limit

exceeds as notified by the authority under Section 5(2) of the Act

1966 and that would make the High Court of Delhi, the principal

Court of original civil jurisdiction, for all practical purposes.

30. The Division Bench has proceeded on the basis of the

expression “District Court”, as being referred under Section 44A of

the Code but it has not taken into consideration the other relevant

provisions of which a reference has been made by us while coming

to the conclusion that the expression “District” as defined under

Section 2(4) of the Code only lays down the limits of the jurisdiction

of the principal civil Court of original jurisdiction and that includes

the ordinary original civil jurisdiction of the High Court and once

the pecuniary jurisdiction exceeds as being notified under the

relevant statute, the jurisdiction vests exclusively with the High

Court as an ordinary original civil jurisdiction for execution of a

foreign decree under Section 44A subject to the just objections

which are available to the parties/judgment debtor as envisaged

under Section 13 of the Code.

31. Consequently, the appeal succeeds and accordingly allowed.

The judgment of the Division Bench of the High Court dated 1st July

2014 is hereby quashed and set aside. Since the parties have not

addressed on merits, E.F.A.(O.S.) No. 3 of 2014 is restored on the

file of the Division Bench of the High Court of Delhi. This being an

old matter where the foreign decree dated 7th February, 2006 could

not have been executed for almost 16 years by this time, we

consider it appropriate to observe that let the Division Bench may

take up the matter on priority and decide the same on its own

merits as expeditiously as possible keeping in view its long awaiting

execution in accordance with law, but in no case later than four

months.

32. Pending application(s), if any, stand disposed of.

………………………J.

(AJAY RASTOGI)

……………………...J.

(ABHAY S. OKA)

NEW DELHI

JANUARY 28, 2022.

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