,
1 Plaintiff has filed this suit seeking a decree in the sum of US$ 163,089.65 plus interest from 18th December 2013 till the date of filing of the suit with",
further interest on the principal amount of US$ 163,089.65 as per Danish Laws as per the particulars of claim annexed to the plaint.",
2 The entire basis of plaintiff’s claim is a judgement dated 28th November 2012 passed by the Supreme Court of Denmark upholding a judgement,
dated 30th June 2010 passed by the Maritime and Commercial Court, Copenhagen.",
3 Defendant had entered into a Charterparty dated 3rd May 2007 with one Britannia Bulk PLC under which defendant gave on time charter the,
vessel PFS NARAYANA (the said vessel). On or about 22Â24th July 2008 Britannia Bulk PLC, the time charterer, placed an order with plaintiff for",
supply of bunker to the said vessel. Plaintiff supplied bunkers amounting to a sum of US$ 508,601.54 and US$ 713,080.25 to the said vessel at Goa",
and in Cape Town. Britannia Bulk PLC was declared insolvent and went into liquidation. Plaintiff did not receive payment for the bunkers supplied,
and hence, they informed defendant that to secure plaintiff's claim they wished to arrest the said vessel. After exchange of several correspondences,",
parties entered into a Settlement Agreement dated 30th November 2008 (Settlement Agreement) under which the schedule for payment of the,
outstanding to plaintiff was set out. Sometime in end of 2008, as per clause 2 of the Settlement Agreement, plaintiff obtained confirmation from the",
liquidators of Britannia Bulk PLC for the amount due to plaintiff for supply of bunkers to the said vessel. Defendant did not pay the amount that,
according to the Settlement Agreement was payable and therefore plaintiff arrested for its claim, the said vessel in Amsterdam on 9th January 2009.",
The ship was released on 2nd February 2009 after the P & I Club of defendant provided a guarantee for US$ 1.6 million for payment of the amount,
that defendant would be ordered to pay to plaintiff. Defendant approached Danish Court by filing a suit bearing SÂ37Â08 for declaration that the,
Settlement Agreement dated 30th November 2008 must be set aside and in pursuance of Section 29 or Section 36 of the Danish Contract Act.,
Plaintiff filed a counterÂclaim for the amounts payable for supply of bunkers. The Maritime and Commercial Court, Copenhagen passed a detailed",
judgment and decree dated 30th June 2010 under which defendant’s prayer for setting aside the Settlement Agreement was rejected and,
defendant was directed to pay to plaintiff an amount of US$ 1,221,681.79 with statutory interest from 19th January 2009 along with Danish Kroner",
(DKK) 400,000 towards legal costs and interest thereon as per Section 8(a) of the Danish Interest Act.",
4 Against this judgement and order, defendant preferred an Appeal to the Supreme Court of Denmark being Case 202/2010 (Second Division). Five",
Judges of the Supreme Court participated in the adjudication and upheld the judgement of Maritime and Commercial Court and further held that,
defendant shall pay to plaintiff the higher amount on the date of payment of DKK 61983,906.41 or the equivalent amount in Danish Kroner on the date",
of payment of US$ 1,221,681.79, in both instances, with statutory interest as on 19th January 2009. The Court also upheld the decision of the Maritime",
and Commercial Court and awarded further costs and DKK 200,000 to plaintiff against defendant. The Supreme Court also ordered that the amounts",
shall be paid within 14 days after pronouncement of the judgement and interest shall be paid on the amounts of legal costs in pursuance of Section 8(a),
of the Danish Interest Act.,
5 After this judgement and order dated 28th November 2012 of the Supreme Court of Denmark, plaintiff invoked the Letter of Understanding (LOU)",
furnished by the by P & I Club of defendant vessel, viz., London Steamship Owners’ Mutual Insurance Association Limited. As the LOU was for",
US$ 1.6 million, plaintiff has received this amount of US$ 1.6 million from the P & I Club. Plaintiff has filed the present suit for the balance payable",
under the judgement passed by the Maritime and Commercial Court of Denmark read with the judgement of the Supreme Court of Denmark.,
It should also be noted that Supreme Court of Denmark is not a reciprocatingÂterritory under Section 44A of the Code of Civil Procedure, 1908",
(CPC).,
6 Defendant has filed, written statement, basically, going back into the merits of the case, which has already been considered and adjudicated by the",
Maritime and Commercial Court of Denmark and Supreme Court of Denmark. In addition, defendant has raised following grounds to defend the suit",
:Â,
(a) The present suit is not maintainable for the reason that the remedy available for plaintiff is to take proceedings under the provisions of the,
Arbitration and Conciliation Act, 1996 (the said Act) and not to file this suit; Why such a recourse has to be adopted is not explained.",
(b) No cause of action is disclosed.,
(c) The suit is bad for misÂjoinder of necessary parties as Liquidator of Britannia Bulk PLC is not joined as defendant;,
(d) The Award and subsequent judgments are not enforceable in India and are not conclusive inasmuch the same were founded on the Agreement,
obtained under duress;,
(e) The judgement is in breach of the Contract Act and the cause of action of the claim are found in violation of the provisions of the Contract Act,
which are in force in India; the same would be opposed to public policy and opposed to principles of natural justice also.,
7 On 6th June 2011, the following issues came to be framed :",
“(1) Whether the order dated 28th November, 2012 passed by the Supreme Court of Denmark against the defendants is a conclusive foreign",
judgment in accordance with Section 13 of the Code of Civil Procedure,1908, for the purpose of enforcement in India ?",
(2) Whether the plaintiffs prove that they are entitled to a decree in the sum of USD 163,089.65 plus interest of USD 20,693.36 plus further interest on",
USD 163,089.65 from the date of the suit until payment/realization ?",
(3) What decree ? What order?â€,
8 Plaintiff led evidence of one witness from Denmark, Mikkel Mathias Steino (PWÂ1). Plaintiff was relying only upon two documents, viz., (i) one",
judgment is dated 30th June 2010 passed by the Maritime and Commercial,
Court, Copenhagen and (ii) the judgment and order dated 28th November 2012 passed by the Supreme Court of Denmark; both with official",
translations. These two documents were received in evidence and marked as Exh.PÂ1/1 and Exh.PÂ1/2. After the examinationÂinÂchief was taken,
on file with the documents, the Court appointed one Mr.Siddharth Chabria, an Advocate practicing in this Court as Court Commissioner to record",
evidence. The Commissioner has filed a report on 1st February 2018 in which he has noted that defendant’s advocates informed him by a letter,",
dated 5th January 2018 that they have returned the papers to plaintiff and despite his repeated emails sent to defendant to participate in the recording,
of evidence, defendant did not respond.",
9 Therefore, this Court passed an order dated 6th April 2018 and evidence of PWÂ1 was closed as no cross. Plaintiff stated that they did not have",
any more witnesses and therefore defendant was given an opportunity to file evidence in lieu of examination in chief with compilation of documents on,
or before 21st April 2018. On 25th April 2018, none appeared for defendant and no evidence was also filed and therefore the evidence of defendant",
was closed and the matter was posted for today for arguments. Even today, nobody is present for defendants.",
10 Before we proceed further, it would be useful to reproduce Section 13 and Section 14 of CPC. The same read as under :Â",
13. When foreign judgment not conclusiveâ€" 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 :â€",
(a) where it has not been pronounced by a Court ofcompetent 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 befounded 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 wasobtained are opposed to natural justice;,
(e) where it has been obtained by fraud;,
(f) where it sustains a claim founded on a breach of anylaw in force in India.,
14. Presumption as to foreign judgments.â€" The Court shall presume upon the production of any document purporting to be a certified copy of a,
foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such",
presumption may be displaced by proving want of jurisdiction.,
These two provisions together indicate that a foreign judgment which has become final and conclusive between the parties is not impeachable either,
on facts or law except on limited grounds enunciated under Section 13 of CPC. The Court shall also presume upon the production of any document,
purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary",
appears on the record; but such presumption may be displaced by proving want of jurisdiction. Of course, an order or decree to be conclusive, an",
order or decree must have been obtained after following due judicial process by giving reasonable notice and opportunity to all the proper and,
necessary parties to put forth their case. Once these requirements are fulfilled, the executing Court cannot enquire into the validity, legality or",
otherwise of the judgment. In Alcon Electronics (P) Ltd. v. Celem S.A. of France of the Apex Court, Paragraphs 13 to 17 read as under :Â",
“13 It appears that the appellant herein has accepted the order and sought for time to pay the costs. Moreover, it did not choose to approach the",
appellate Court assailing the order and the same has attained finality. In spite of the same, the appellant filed the application opposing the execution",
petition filed by the respondents. The first and foremost ground of attack against the order passed by the English Court is that the order is not,
conclusive as per Section 13(b), CPC. Such argument appears to be attractive but we are not able to appreciate the same in the facts and",
circumstances of the case. Before we proceed further, it is appropriate to have a look at Sections 13 and 14 of CPC which read as under: Section 13.",
When foreign judgment 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 exceptâ€" where it has not been pronounced by a,
Court of competent jurisdiction; where it has not been given on the merits of the case; 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; where the proceedings in,
which the judgment was obtained are opposed to natural justice; where it has been obtained by fraud; Â where it sustains a claim founded on a,
breach of any law in force in India. Section 14. Presumption as to foreign judgments: The Court shall presume upon the production of any document,
purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary",
appears on the record; but such presumption may be displaced by proving want of jurisdiction.,
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 otherwise of the judgment.",
15 A glance on the enforcement of the foreign judgment, the position at common law is very clear that a foreign judgment which has become final and",
conclusive between the parties is not impeachable either on facts or law except on limited grounds enunciated under Section 13, CPC. In construing",
Section 13, CPC we have to look at the plain meaning of the words and expressions used therein and need not look at any other factors. Further,",
under Section 14, CPC there is a presumption that the Foreign Court which passed the order is a Court of competent jurisdiction which of course is a",
rebuttable presumption. In the present case, the appellant does not dispute the jurisdiction of the English Court but its grievance is, it is not executable",
on other grounds which are canvassed before us.,
16 The appellant contends that the order of the English Court is not given on merits and that it falls under Section 13(c) of the CPC as a result of,
which it is not conclusive and therefore inexecutable. We cannot accept such submission. A judgment can be considered as a judgment passed on,
merits when the Court deciding the case gives opportunity to the parties to the case to put forth their case and after considering the rival submissions,",
gives its decision in the form of an order or judgment, it is certainly an order on merits of the case in the context of interpretation of Section 13(c) of",
the CPC.,
17 Applying the same analogy to the facts of the case on hand, we have no hesitation to hold that the order passed by the English Court is an order on",
merits. The appellant who has submitted itself to the jurisdiction of the Court and on its own requested the Court to assess the costs summarily. While,
passing a reasoned order by dismissing the application filed by the appellant, English Court granted the costs against the appellant. Had it been the",
case where appellant’s application was allowed and costs were awarded to it, it would have as well filed a petition for the execution of the order.",
Be that as it is, the appellant did not prefer any appeal and indeed sought time to pay the costs. The appellant, therefore, cannot be permitted to object",
the execution. It cannot be permitted to blow hot and cold at the same time. In our opinion, it is a pure abuse of process of law and the Courts should",
be very cautious in entertaining such petitions.â€,
11 The grounds of challenge by defendant under Section 13 though not very specifically stated, appears to be under SubÂsection (d), (e) and (f). As",
noted above, it was defendant who approached the Maritime and Commercial Court of Denmark praying for setting aside the Settlement Agreement",
dated 30th November 2008. The Maritime and Commercial Court has given a judgement on merits. In the judgement, the Court has noted the",
statements filed by the witnesses on behalf of plaintiff and defendant, their rival submissions and given a reasoned judgement as to why the stand of",
defendant cannot be accepted and plaintiff was entitled to the amounts as mentioned in the judgment. Similarly, even the Supreme Court of Denmark",
has considered the claims, the rival allegations and submissions and came to the conclusion that it has come to, by giving the grounds for the same.",
Therefore, though defendant has not raised the grounds under SubÂsection (a) and subÂsection (b) of Section 13, I would still note that the judgement",
has been pronounced by a Court of competent jurisdiction and the same has been given on the merits of the case.,
12 Before going to the grounds raised under subÂsections (d), (e) and (f) of Section 13, it has to be noted that Section 13 says 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 exceptâ€" .†Therefore, by default, the Foreign Judgement will have to be considered as conclusive and onus will",
be on defendant to prove that the Foreign Judgement would fall under any of the six exceptions. In the present case, defendant, except for filing",
written statement in which bald averments are made, has not led any evidence as to why the judgments at Exh.PÂ1/1 and Exh.PÂ1/2 would fall under",
the exceptions provided under Section 13.,
The official lending rate at 1 July 2017,0.05% p.a.
The official lending rate at 1 January 2017,0.05% p.a.
The official lending rate at 1 July 2016,0.05% p.a.
The official lending rate at 1 January 2016,0.05% p.a.
The official lending rate at 1 July 2015,0.05% p.a.
The official lending rate at 1 January 2015,0.20% p.a.
The official lending rate at 1 July 2014,0.20% p.a
The official lending rate at 1 January 2014,0.20% p.a.
The official lending rate at 1 July 2013,0.20% p.a.
The official lending rate at 1 January 2013,0.20% p.a.
The official lending rate at 1 July 2012,0.45% p.a.
The official lending rate at 1 January 2012,0.70% p.a.
The official lending rate at 1 July 2011,1.30% p.a.
The official lending rate at 1 January 2011,1.05% p.a.
The official lending rate at 1 July 2010,1.05% p.a.
The official lending rate at 1 January 2010,1.20% p.a.
The official lending rate at 1 July 2009,1.55% p.a.
The official lending rate at 1 January 2009,3.75% p.a.
date of filing the present suit and further interest @ 8% per annum on US$ 163,089.65 from the date of the suit until the date of payment/realisation.",
20 Plaintiff shall also be entitled to cost in the sum of Rs.5 lakhs and I am awarding this cost of Rs.5 lakhs because this was the case where plaintiff,
had to bring its witness from Denmark and that too a practicing lawyer.,
21 All issues are answered accordingly.,
The suit stands disposed.,
Drawn up decree dispensed with.,
