TaxTMI 
TaxTMI 
2026 (4) TMI 1362
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.............................................................. 11 A. On behalf of the Appellant ............................................................................. 11 B. On behalf of Respondent............................................................................... 14 VI. Statutory Scheme Governing Enforcement of Foreign Judgments ............. 16 VII. Issues for consideration ................................................................................. 20 Re: Issue I. Whether the judgment of the English Court is in consonance with the requirements of Section 13 of CPC read with 44A. ...................... 20 Re: Issue II. Whether the judgment is unenforceable in view of the conditions imposed by RBI in exercise of the statutory power under FERA ................... 39 (i) Findings of the English Court on RBI communication dated 03.09.1997 ................................................. 47 (ii) Findings of the Single Judge .............................................................. 47 (iii) Findings of the Division Bench .............................................
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.... values of access to justice and the regulatory control. To this extent, the judgment of the High Court stands reversed on the principle of law as it applied at the relevant time. II. Facts 3. The dispute originates from a Share Purchase and Co-operation Agreement (SPCA) executed on 12.05.1995 between the appellant, a foreign company and the respondent, an Indian Company, for establishing a joint venture company in India for manufacturing and conducting business in industrial gases. Subsequently, by an addendum dated 07.11.1996, the appellant's shareholding was increased from 30% to 49%, and three nominee directors were appointed to the respondent's Board. On the same day, parties also entered into a Technical Collaboration Agreement relating to the supply of helium gas. 4. At a Board meeting, the respondent made a decision to obtain overseas borrowing for financing the acquisition of plants and machinery, and the nominee directors of the appellant assured the arrangement of such funds. This agreement fructified in arranging such funding through Citibank UK (lender Bank), which sanctioned External Commercial Borrowing (ECB) facility up to USD 7 million. The lender bank's s....
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....ring the period of 1997-1998, certain disputes concerning the acquisition of another company by the appellant, which, according to the respondent, was in violation of a non-compete clause contained in the SPCA, arose between the parties. Litigation ensued before the Bombay High Court and Delhi High Court, however, details of such disputes are not relevant for the present purposes. 10. While the parties were engaged in multiple proceedings across judicial forums, the lender-bank, on 08.10.2001, invoked the guarantee against the appellant due to default in repayment by the respondent. The appellant promptly discharged the outstanding liability amounting to USD 4.78 million together with interest on 09.10.2001 and demanded reimbursement by invoking the subrogation clause of the loan agreement. Respondent failed to make payment and asserted that the amount paid was in partial discharge of other liabilities owed by the appellant to the respondent and not under subrogation rights. III. Judgment of the English Court and the Execution Proceedings initiated by Appellant: 11. On 17.01.2003, the appellant instituted proceedings before the English Court seeking recovery of the amou....
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....bjections, the respondent filed an appeal before the Division Bench, which by judgment dated 01.07.2014, held that the Delhi High Court was not a "District Court" under Section 44A CPC and, therefore, lacked jurisdiction to execute the foreign decree. Accordingly, the execution petition was directed to be transferred to the competent District Court and the objections were to be decided afresh. The said judgment was challenged before this Court. 18. By judgment dated 28.01.2022 [Griesheim GmbH v. Goyal MG Gases (P) Ltd., (2022) 11 SCC 549.] this Court set aside the judgment dated 01.07.2014, and held that jurisdiction to execute foreign decrees under Section 44A vests in the Delhi High Court in exercise of its original civil jurisdiction. The appeal before the Division Bench was restored for decision on merits. IV. Analysis of the Impugned Order 19. The Division Bench of the Delhi High Court heard the appeal, and by its judgment dated 21.12.2022, the appeal was allowed, and the order dated 29.11.2013 of the Single Judge was set aside. 20. By the order impugned before us, it was held that the foreign judgment was contrary to the provisions of law in force in India and had....
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....ppellant became subrogated to the rights of the lender under the Loan Agreement and was therefore entitled to recover the amounts paid from the respondent. 22.2 The English Court was a court of competent jurisdiction, as the Loan Agreement expressly provided that English law would govern the contract and that disputes would be subject to the jurisdiction of the English Courts. Respondent voluntarily submitted to the jurisdiction of the English Court and participated in the proceedings without objecting to jurisdiction. Respondent is estopped from raising any objections as regards the judgment, decree and enforceability of the foreign judgment. 22.3 Decree passed by the English Court was a judgment on merits, rendered after consideration of pleadings and evidence, and therefore did not attract the bar under Section 13(b) of CPC. It was submitted that mere adoption of a summary procedure or absence of cross-examination would not render the decree opposed to natural justice, particularly when the respondent had been afforded sufficient opportunity to contest the proceedings. 22.4 Further, the decree was not contrary to Indian law and did not violate the prov....
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.... which expressly stipulated that no liability would extend to the Indian company in the event of the invocation of the guarantee. 23.2 The English Court had ignored the mandatory provisions of Indian law, including the conditions imposed by the RBI, while granting approval for the loan transaction. Such permissions formed an integral part of the transaction and were binding upon the parties, and that disregard of those statutory conditions rendered the foreign judgment liable to be refused for enforcement under Section 13(c) and Section 13(f) of the CPC. 23.3 Provisions of FERA continued to apply notwithstanding its repeal, as the permissions granted thereunder were preserved under the savings clause contained in the Foreign Exchange Management Act, 1999 (FEMA). It is further submitted that any transaction undertaken in violation of mandatory permissions granted under the earlier regime would remain unenforceable in law. 23.4 Balance sheets and financial statements of the respondent for the relevant years clearly reflect that there exists no subsisting liability upon the respondent, and that the relevant documents were duly approved and signed by the conc....
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....y 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 the section. 26. The enforcement of a foreign decree can be refused 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. Section 13 is reproduced herein for ready reference: "13. When foreign judgment is 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; (c) where it appears on the face of the proceedings to 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 obta....
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....ian law in force shall not be recognised or enforced in India. VII. Issues for consideration 28. On the basis of the submissions advanced by the appellant and the respondent, two broad issues arise for consideration. I. Whether the judgment of the English Court is in consonance with the requirements of Section 13 of CPC read with 44A. II. Whether the judgment is rendered unenforceable in view of the conditions imposed by RBI in exercise of the statutory power under FERA. Re: Issue I. Whether the judgment of the English Court is in consonance with the requirements of Section 13 of CPC read with 44A. 29. As already indicated, pursuant to the permission granted by RBI, Citibank disbursed the loan on 28.10.1997. It is a matter of record that respondent even paid first two instalments on 23.09.1999 and 30.09.2000. It is in this backdrop that the facts leading to initiation of the present legal proceedings and concluding with the judgment impugned be required to be examined in detail. 30. Certain disputes relating to alleged breaches of the SPCA and TSSA, particularly concerning the non-compete clause, arose between the appellant and the respondent. Aroun....
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..... I shall refer to this alleged agreement as "the June 1997 non-recourse agreement". 12. The second (also oral) agreement is said to have been made in August and September 2001. Messer is alleged to have agreed to pay the amounts outstanding under the loan agreement and not to look for repayment from Goyal. In April 2001, Goyal's lawyers in India had written to Messer making unspecified allegations of breaches by Messer of both the SPCA and the TSSA and claiming INR 5 billion (some US $ 111m) in damages. Mr Dhar's evidence is that he and Mr Goyal (representing the Indian shareholders of Goyal) had discussed the claim by Goyal in August and September 2001 with a Mr Allcock, one of Messer's nominated directors on the board of Goyal. Mr Dhar says that Mr Allcock wanted to reach a compromise and Messer was prepared to compensate Goyal and to continue with the joint venture. Mr Dhar continued: "We discussed the settlement of Goyal' s claims against Messer, Goyal made it clear that it would only be prepared to settle the claims if Messer accepted responsibility for the balance owed by Goyal under the Loan Agreement. This was of critical importance to Goy....
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....unt of the claim. At 16 January 2006 the claim was for the principal sum of US$ 4,794,762.98 together with interest calculated in accordance with the loan agreement of US$ 996,842.94. A small further amount of interest will be due when this judgment is handed down. There is also a claim under clause 17.5 of the loan agreement to recover certain legal fees. If there are any points to be made on the precise amount of the Part 24 judgment to be entered they should be raised when this judgment is handed down if they cannot be agreed beforehand." 34. The principles relating to foreign determination acquiring the status of enforceability under Section 13 CPC is well articulated in the decision of this Court in, Alcon Electronics (P) Ltd. v. Celem S.A. of France (2017) 2 SCC 253., this Court noted that: "14. A plain reading of Section 13 CPC would show that to be conclusive an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case. When once these requirements are fulfilled, the executing court cannot enquire into the validity, legality or other....
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....at even though a decree may be ex-parte it may still be on merits provided it could be shown that the court had gone through the case made out by the plaintiff and considered the same and taken evidence of the witnesses put up by the plaintiff. It was held that if an ex-parte decree was passed in a summary manner under a special procedure without going into the merits and without taking evidence then those decrees would not be executable in India. Based on this authority it was submitted that a decree could be said to be not on merits only if it is passed in a summary manner in any special or summary procedure. It was submitted that such a decree i.e. a decree which has not been passed in a summary manner in a summary proceeding would be a decree on merits. This authority itself makes it clear that the decree would not be on merits if the court has not gone through and considered the case of the plaintiff and taken evidence of the witnesses of the plaintiff. It must also be noted that in this case the Court ultimately held that the decree concerned was not a decree on merits." (emphasis supplied) 37. In the execution proceedings, Ld. Single Judge took the view that the ....
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....urt, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith. 17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court." 39. Further, following IDBI (supra), this Court in B.L. Kashyap & Sons Ltd. v. JMS Steels and Power Corporation (2022) 3 SCC 294., reiterated the principles in following manner: "33. It is at once clear that even though in IDBI Trusteeship, this Court has observed that the principles stated in para 8 of Mechelec Engineers case shall stand superseded in the wake of amendment ....
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....be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the court finds the defence to be frivolous or vexatious." (emphasis supplied) 40. Even while a Court adjudicates and determines a lis in summary jurisdiction, the Court must determine whether the defendant has a "realistic", as opposed to a merely "fanciful" prospect of success. A claim can be regarded as realistic only where it carries a degree of conviction and is more than merely arguable. At the same time, the jurisdiction to grant summary judgment is not intended to convert the proceeding into a "mini-trial", but rather to enable cases where there is no real prospect of success to be disposed of summarily. Nevertheless, the court is not required to accept factual assertions at face value without analysis, particularly where such assertions are contradicted by contemporaneous records. In forming its opinion, the court must consider not only the material actually placed before it at the summary stage but also such evidence as may reasonably be expected to be available at trial. Further, even where a matter does not initially appear complex or where no immediate co....
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....on a particular issue if- (a) it considers that- (i) that claimant has no real prospect of succeeding on the claim or issue; and (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other reason why the case or issue should be disposed of at a trial." 43. The principles to be adhered to in passing a summary judgment have been crystallised in Easyair Ltd (t/a Openair) v Opal Telecom Ltd. [2009] EWHC 339 (Ch) in the following manner: "I. The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91. II. A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable. ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]. III. In reaching its conclusion the court must not conduct a "mini-trial", it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily: Swain v Hillman. IV. This does not mean that the court must take at face value and without analysis everything tha....
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.... application for leave to defend, respondent relied upon three agreements. The first of these agreements is stated to have been concluded at a meeting of the respondent's Board on 13.06.1997, prior to execution of the loan agreement, whereby it was allegedly agreed that in the event the appellant was required to discharge its obligations under the proposed guarantee issued in favour of the lending bank, it would not seek recourse against the respondent or its shareholders. The second agreement was asserted to have been reached during September 2001, in the backdrop of disputes arising from alleged breaches of the SPCA and TSSA and consequent monetary claims raised by the respondent against the claimant; under this arrangement, the appellant was to assume responsibility for the outstanding loan liability in consideration of settlement of claims and continuation of the joint venture, while the respondent and its shareholders would refrain from pursuing certain claims against the appellant. The third agreement, relied upon by the respondent, was described as an understanding or representation made prior to commencement of proceedings, to the effect that the proceedings were being init....
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....orded the company's position that no amount was payable to the appellant and that any demand made by it lacked merit. Relevant portion of the Balance Sheet entry pertaining to year 2001-02 is extracted as below: "19. B (II) TREATMENT OF ECB LOAN REPAYMENT The Company had taken a term loan (in the form of ECB) of 7 Million US Dollars from Citibank International Plc, London that was guaranteed by Messer Griesheim GmbH (Messer). During the year Messer paid the entire outstanding amount of ECB Loan & Interest amounting to UCB 4. 78 million 4. 78 Million (equivalent to Rs. 2236 lacs approx.) i.e. principal USD 4. 66 million and interest USD 0.12 Million to Citibank, Plc London. Messer has made this payment pursuant to understanding with the Company to partially compensate the company for the loss suffered by the company due to Messer 's non cooperation in implementing various projects and breach of certain clauses, of Share Purchase and Cooperation Agreement dt. 12-05-1995 between the Company and Messer. As per Mutual understanding with Messer, the Company has adjusted Rs. 58 lacs in the Interest Expenses and Rs. 2078 lacs towards loss suffered by the Company in the value o....
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....t the Draft Balance Sheet as at 31st December, 2002 and profit & loss account of the Company together with accounting policies, schedules and notes thereon, for the year ended 31st December, 2002 together with relevant attachments having placed before the Board, be and are hereby approved and the same be authenticated in terms of section 215 of the Companies Act, 1956 by at least two Directors, one of whom shall be Managing Director along with Company Secretary of the Company and the same may be submitted to the Statutory Auditors of the Company for their Reports thereon. Thereafter, Balance Sheet as at 31.12.2002 and Profit& Loss Account for the year ending 31.12.2002 were signed by Mr. S.C. Goyal, Managing Director, Mr Winfrid Schmidt and Mr. G.K. Balaya, Directors of the company along with Mr. N.K. Bagri, Company Secretary of the company and then these were forwarded to the Statutory Auditors of the company for their report thereon, who were present in the office ..." 51. Although the English Court had referred to the Balance Sheet and the Minutes of Meetings, certain other correspondence, including the respondent's e-mail dated 20.02.2003 disputing the appellant's s....
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....e granting permission by its letter dated 03.09.1997. In other words, whether the condition that "In case of invocation of guarantee no liability whatsoever will extend to the Indian company" would operate as an absolute bar to enforcement for all times to come as contended by Mr. Chidambaram. 56. In light of the competing submissions, the question that arises for consideration is twofold: first, the true import and legal effect of the RBI condition dated 03.09.1997 within the framework of the then prevailing foreign exchange law; and second, whether enforcement of the foreign decree, in disregard of such condition, would attract the bar contained in Sections 13(c) and 13(f) of the CPC or is enabled under Section 47 of the FERA Act, 1973. 57. The purpose and object of the FERA Act, 1973 is explained in LIC of India v. Escorts Ltd. (1986) 1 SCC 264. The position as it existed when the conditional permission was granted, when the Act was in operation can well be appreciated in the following background; "4. The present state of Indian economy which has to operate under the existing world economic system is such that India needs foreign exchange and, lots of it, to meet ....
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....w from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange: Provided that nothing in this sub-section shall apply to any purchase or sale of foreign currency effected in India between any person and a money-changer. Explanation-For the purposes of this sub-section, a person, who deposits foreign exchange with another person or opens an account in foreign exchange with another person, shall be deemed to lend foreign exchange to such other person. (2) Except with the previous general or special permission of the Reserve Bank, no person, whether an authorised dealer or a money-changer or otherwise, shall enter into any transaction which provides for the conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the rates for the time being authorised by the Reserve Bank. (3) Where any foreign exchange is acquired by any person, other than an authorised dealer or a money-changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the f....
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.... foreign currency loan of USD 3 Million for financing the Working capital requirements. The sanction letter for the loan is enclosed. We are also enclosing herewith application for seeking approval for External Commercial Borrowing of USD 3 million for Rupee Expenditure/ Working Capital, and request you to grant the approval at the earliest. You are also requested to grant exemption from the application of Withholding Tax on all interest payments, agency and arrangement fee and reimbursement of out of pocket expenses under Section 10 (15) (iv) (f) of the Income Tax Act, 1961. Thanking you, Yours faithfully, For GOYAL MG GASES LIMITED" (emphasis supplied) 61. Said application was accorded approval by Department of Economic Affairs vide communication dated 02.04.1997. The relevant portion of said communication is as follows: "Dear Sirs, With reference to your letter no. GMG/FIN/6.21, dated 26-12-1996, on the subject cited above, I am directed to convey the approval of the Government of India, Ministry of Finance, Department of Economic Affairs, for your obtaining a foreign currency loan from M/s. Citibank International....
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....fee: USD 750/- 2. With reference to para 6 of the above mentioned letter, you. have furnished to this Department an executed copy of the loan agreement for an amount of USD 7 Million which has been taken on record by this Department. While the terms and conditions of our above sanction letter appear to have been correctly incorporated in the loan agreement, any provisions of the loan agreement, which are found to be at variance with the provisions of the said sanction letter shall be void and be not binding on the Government of India or Reserve Bank of India." (emphasis supplied) 64. Pursuant to the same, RBI granted final approval to the loan on 12.08.1997 appending various regulatory conditions upon approval of the loan facility. Relevant portion of RBI's final approval, as is necessary for our purposes, is reproduced below: "Dear Sir, Midterm/Longterm Foreign Exchange Loan/Credit Final Approval-Regn No. 40958 Kindly refer to your application dated 30.07.97 made in Form 83. 2. We are giving here below our Final approval for raising Foreign Currency Loan/Credit of US$ 7 Million from Mis Citibank. Intl. Plc, London subject to....
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....formance. Neither apply." 69. Findings of the Single Judge: Before the Single Judge, when respondent agitated its objections with regard to RBI conditions, the same were dispelled by observing as under; "44. As regards the requirement of prior permission under the FERA, it must be noticed that FERA is no longer in existence and has been substituted by the Foreign Exchange Management Act, 1999 ('FEMA'). The current circular of the RBI which is relevant is Circular No. 12/2013-14 dated 1st July 2013. The relevant portion of the Circular reads as under: "The Reserve Bank vide its Notification No. FEMA.29/RB2000 dated September 26, 2000 has granted general permission to a resident, being a principal debtor to make payment to a person resident outside India, who has met the liability under a guarantee. Accordingly, in cases where the liability is met by the non-resident out of funds remitted to India or by debit to his FCNR(B)/NRE account, the repayment may be made by credit to the FCNR(B)/NRE/NRO account of the guarantor provided, the amount remitted/credited shall not exceed the rupee equivalent of the amount paid by the non-resident guarantor against the invoked ....
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....n of this Agreement." 53. The above apparently shows the respondent/DH was bounden to take permission from RBI for implementation of the Loan Agreement and the RBI, while granting the permission, had put the twin conditions. 54. On this aspect we find that the present case does not come within the ambit of Section 47(3)(b) of FERA. These provisions are applicable in cases where permission is required to be obtained for the first time from RBI after final decree is passed so that foreign currency can be sent abroad. The learned Single Judge on this issue has relied upon Supreme Court's decision in Renusagar Power Co. Ltd. Vs. General Electric Co. 1994 Supp (1) SCC 644 to hold that ex post facto permission from RBI could be obtained by the DH for repatriating the funds deposited by the appellant/JD. Upon going through decision in Renusagar Power Co. Ltd. Vs. General Electric Co. and applying it to the facts of the present case, we find that no doubt in view of said decision ex post facto permission can be obtained from the RBI to remit the funds, however, when the decree itself is found to be vitiated, being against the prescribed procedure of law recognized in Indi....
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....l apply to sums required to be paid by any judgment or order of any Court as they apply in relation to other sums; (b) no steps shall be taken for the purpose of enforcing any judgment or order for the payment of any sum to which the said provisions apply except as respects so much thereof as the Central Government or the Reserve Bank, as the case may be, may permit to be paid; and (c) for the purpose of considering whether or not to grant such permission, the Central Government or the Reserve Bank, as the case may be, may require the person entitled to the benefit of the judgment or order and the debtor under the judgment or order, to produce such documents and to give such information as may be specified in the requisition. (4) Notwithstanding anything contained in the Negotiable Instruments Act, 1881, neither the provisions of this Act or of any rule, direction or order made thereunder, nor any condition, whether expressed or to be implied having regard to those provisions, that any payment shall not be made without permission under this Act, shall be deemed to prevent any instrument being a bill of exchange or promissory note." (emphasis supplied) ....
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....nder law. On careful scrutiny, we notice that the transaction in Asha John (supra) was without any prior permission whatsoever, and therefore the Court was compelled to conclude that the transaction is prohibited. In so far as the present case is concerned, a prior permission was sought and RBI has granted the prior permission. Under these circumstances, we are of the opinion that principles laid down in Asha John (supra) have no application in facts and circumstances of the present case. 76. In Renusagar Power Co. Ltd. v. General Electric Co. 1994 Supp (1) SCC 644., the Court had to deal with a situation where the permission was in fact refused by the Central Government. This Court considered the matter and directed as under: "84. Shri Venugopal has urged that Section 47(3) cannot be applied in the present case because it postulates a situation where permission of the Central Government has not been sought and that in the present case permission was sought but was refused earlier. In our view the earlier refusal by the Government to give its approval to the rescheduling of payment of instalments does not in any way preclude the Government of India from considering the ....
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.... mandates that "no steps shall be taken for the purpose of enforcing any judgment or order... except as the Reserve Bank... may permit." The language employed is negative thereby creating a statutory embargo on enforcement in the absence of permission. 78. Likewise, in Renusagar (supra) the Court was concerned with the permissibility of enforcing a foreign arbitral award and whether the earlier refusal of governmental approval would foreclose consideration of permission at a subsequent stage. The decision proceeded on the footing that the competent authority retained the discretion to consider the grant of permission in light of subsequent developments and did not lay down that enforcement could proceed in the absence of permission as contemplated under Section 47(3)(b). On the contrary, the reasoning in Renusagar (supra) implicitly affirms the necessity of such permission at the stage of enforcement, while clarifying that refusal at an earlier point does not render the statutory power to grant permission otiose. The decision, therefore, cannot be read as dispensing with the statutory requirement of prior permission before enforcement, nor as supporting the contention that execu....
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..... Tulzapurkar, learned Counsel for the plaintiff-Bank, that such permission can be obtained after leave is granted under Order 21 Rule 22 but before the actual execution is levied. This contention cannot be accepted in view of the express provisions of section 47(3)(b). Section 47(3)(b) clearly prohibits any step being taken for the purpose of enforcement without the permission of the Reserve Bank or the Central Government. It does not say that actual execution shall not be levied without such permission. In fact, once leave is granted under O. 21 R. 22, nothing further is required to be done and the plaintiff Bank can proceed with execution. A prior permission of the Reserve Bank or the Central Government, as the case may be, is therefore required before taking any step for the enforcement of the decree, including an application under O. 21 R. 22. Such permission has not been obtained by the plaintiff-Bank. Without such permission it cannot proceed." 80. The view taken by the Bombay High Court in Algemene Bank (supra) is more directly referable to the question arising in the present case, as it construed Section 47(3)(b) in the context of execution proceedings relating to a for....
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....C coupled with Section 47(3)(b), FERA. 83. In view of the above discussion, we have no hesitation in rejecting Mr. Chidambaram's submission that there is absolute and total bar of enforcement of a decree by virtue of the conditional permission in its letter dated 03.09.1997. This submission is therefore rejected. In the normal course, a party obtaining foreign judgment can seek enforcement in India if such a judgment qualifies the test laid down in Section 13 of CPC. The Central Government/RBI can exercise its regulatory power under Section 47(3) of FERA and grant its approval before any further steps are taken for implementing the judgment. 84. Returning to the facts of the present case, in view of our finding on issue no. 1, that the foreign judgment is violative of requirements of Section 13 CPC, our findings on issue no. 2 will have no consequence. We have decided issue no. 2 in view of the fact that detailed submissions were made by both the parties. We also considered it necessary to clarify the position in view of the text of Section 47 of FERA coupled with its interpretation by Bombay High Court. 85. At this juncture, it would also be apposite to clarify that the o....
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....w. 2. Clause 31.2 English Courts: Each of the parties hereto irrevocably* agrees for the benefit of each of the Agent, the Arranger and the Banks that the courts of England shall have jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement (respectively "Proceedings" and "Disputes") and, for such purposes irrevocably submits to the jurisdiction of such courts. 31.3 Appropriate Forum: Each of the Obligors irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 31.2 (English Courts) being nominated as the forum to hear and determine any Proceedings and to settle any Disputes and agree not to claim that any such court is not a convenient or appropriate forum. Clause 31.3 Appropriate Forum: Each of the Obligors irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 31.2 (English Courts) being nominated as the forum to hear and determine any Proceedings and to settle any Disputes and agree not to claim that any such court is not a convenient or appropriate forum. Clause 31.6 Conse....