TaxTMI 
TaxTMI 
2019 (8) TMI 1881
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....o. 04/2018 pending before the Commercial Court at Rajkot pending admission, hearing and final disposal of this petition." 2. The respondent has filed the Civil Application for vacating the relief granted by this Court vide order dated 02.05.2019, whereby this Court was pleased to observe that it would be open for the petitioner to seek time before the Commercial Court at Rajkot and the same shall be granted. 3. The following noteworthy facts arise in this petition- 3.1 That the respondent filed Commercial Suit before the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales and by judgment dated 30.10.2017 and 09.11.2017 and order of Order of Costs dated 03.03.2017 and decree dated 09.11.2017 passed decree against the petitioner and the said judgments have become final. It deserves to be noted at this stage that the petitioner was the defendant in the said proceedings before the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales. 3.2 The properties of the petitioner-original defendant are situated at Jamnagar and as per the provisions of the Commercial Courts, Commercial Civil and Comme....
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.... Commercial Court, Royal Courts of Justice (English Court), Mr. Gupta contended that the petitioner had given a personal guarantee which would not constitute a commercial dispute as defined under the Act and therefore, the Commercial Court lacks inherent jurisdiction to entertain the Execution Petition filed before it. According to Mr. Gupta, the Execution Petition would only lie within the Court of Principal Civil Judge, Senior Division, at Jamnagar, which has territorial jurisdiction. On the aforesaid grounds, Mr. Gupta contended that the petition be allowed. 6. Per contra, Mr. Mihir Joshi, learned senior advocate has opposed this petition. Mr. Joshi contended that it is nothing but an attempt to delay the execution proceedings. Relying upon the judgment of this Court in the case of State of Gujarat v. Union of India reported in 2018 JX (Guj) 690, it was contended by Mr. Joshi that the present petition is not maintainable. It was contended by Mr. Joshi that as per the Division Bench Judgment as well as the judgments of the Supreme Court, the petition against the order of the learned Commercial Court against the interim order is not maintainable as provided under section 8 of t....
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....r the parties and on perusal of the paper book which is supplied by the learned advocate for the petitioner, it clearly transpires that the dispute between the parties arose as a maritime claim. The proceedings were filed before the English Commercial Court, i.e., before the High Court of Justice, Queen's Bench Division, Commercial Court of England and Wales under the English law. The said proceedings have culminated into decree in favour of the respondent herein. 10. Section 2(c) of the Act reads as under - "(c) "commercial dispute" means a dispute arising out of-- (i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents; (ii) export or import of merchandise or services; (iii) issues relating to admiralty and maritime law; (iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same; (v) carriage of goods; (vi) construction and infrastructure contracts, including tenders; (vii) agreements relating to ....
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....vent, on the true construction of the guarantee Mr. Jagatramka is obliged to pay a sum equivalent to US$ 4,259,395 or that sum, less US$ 1.95 million. That depends upon whether the guarantee provides for a primary liability arising upon demand or whether the guarantee is a true guarantee which provides for a secondary liability in the sense that the guarantor's liability mirrors the liability of the principal debtor. Whilst there is authority for the proposition that there is a presumption against construing an instrument as an on demand bond where it is not given by a bank or other financial institution (see Autoridad del Canal de Panama v. Sacyr SA [2017] EWHC 2228 at paragraph 81(4) per Blair J.) there is no doubt, in my judgment, that the instrument signed by Mr. Jagatramka provided for an on demand bond and that if such demand was validly made Mr. Jagatramka was bound to pay "a sum equal to US$ 4,259,395", not such sum as Gujarat was in fact liable to pay at that time. The following parts of the guarantee lead to that conclusion: i) Mr. Jagatramka agreed to pay "a sum equivalent to" the "Gujarat Liabilities" which were defined as being US$ 4,259,395. Mr. Jagatramk....
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....hich formally hands down judgment. No doubt Mr. Stevenson will produce an updated schedule of interest on that date. Finally, Ultrabulk seek a final anti-suit injunction. The basis of this injunction was set out in the evidence of Mr. Clulow and the injunction was granted on an interim basis by me (ex parte) and subsequently continued by HHJ Waksman on the return date. There is no reason why the injunction should not be made final. Mr. Jagatramka has not amended his Defence to deny Ultrabulk's claim for a final injunction." The personal guarantee reads that the personal guarantee shall cover any and all worldwide assets owned by the Guarantor, including, but not limited to property, bank accounts, land, shares and/or any other assets whatsoever, legally and beneficially owned. The decree has become final and the certificate for enforcement of the decree in a foreign country has also been granted by the Commercial Court at England. The decree which is passed clearly indicates that the respondent entered into certain Cooperation Agreements with the Gujarat Company whereunder they agreed to long term charter vessels to be operated and the Gujarat Company ended being li....