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CASE NO.: Appeal (civil) 443  of  1994

PETITIONER: GOBIND RAM

       Vs.

RESPONDENT: GIAN CHAND

DATE OF JUDGMENT:       27/09/2000

BENCH: V.N.KHARE, S.N. PHUKAN

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T.......J           PHUKAN,  J.   JUDGMENT  This  appeat by  special      leave  is     directed  against  the      judgment of Delhi High court  dated  20th     December, 1991 passed in RFA No.  50 of 1977.                We  may  briefly      state  the   undisputed  facts.   IT.   a     appellant agreed to sale the disputed property situated at Lajpst     Nagaar (IV), New Delhi for a consideration of Rs.’16,000/- to the     resprdent  and accordingly on 24^ January.  1973 an agreement to     sale  was  executed  and a sum of RS.IOOO/- WAS paid  as  earnest     money  to the appellant.  Respondent filed the suit for      specific     performance  of      the contract as the appellant failed to  execute     the sale deed within time.  On 6/10/1976 the suit was decreed and     the  respondent deposited balance consideration of Rs.15,000/- in     the  Trial Court.  The appeal filed by the appellant in the  High     Court  was  also  dismissed by the impugned  judgment  dated  20h     December,  1991.   However,  to      mitigate  the  hardship  to  the     appellant  and      as  the respondent agreed to pay more  sum,  High     Court  directed      the  respondent  to deposit  a  further  sum  of     Rs.1,00,000/- which was to be released to the appellant on giving     possession of the suit property.  The said sum was also deposited     in  the      registry of the High Court by the respondent and  it  is     being  kept in interest bearing fixed deposit.      The appellant has     filed the present appeal and that is how the parties are                We have heard learned senior counsel for the parties.  Only     contention  urged before us by the iearned senior counse’lfor the     appellant  is  that Instead of decree for  specific  porformance,     compensation  may be awarded.  At the time of issuance of  notice     in  the      special  leave petition, teamed senior counsel  for  the     appellant  offered  to      pay Rs.1,16,000/- to  the  respondent  to     cancel      the  contract and get out of the decree.  The  respondent     after  his  appearance before this court offered another  sum  of     Rs.50,000/-   so   as  to  make       the  total   consideration   of     Rs.1,50,000/-,      In view of the above position leave was  granted.     When  the matter came up before us another attempt was made for a     settlement,  which  failed.  At that time learned senior  counsel     for  the respondent on instruction made an offer that  respondent     would  pay  further  sum  of  Rs.l  ,50,000/-  as  consideration.     Learned      senior  counsel  for the appellant has  relied  on  this     court’s judgment in Damacherfa Anjaneyufu end Another vs.     

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         Damacherla  Venkate Sesheish and Another MR 1987 SC-  1641.     On  the facts of that case the court recorded the finding that in     case  of grant of a decree of specific performance hardship would     be  claused  to      defendant and  therefore  compensation  granted.     Facts  of  present  case are different.      Next decision  on  which     learned      senior counsel for the appeilant relied is in Parakunnan     Veetill      Joseph’s Son Msthew vs.  Nedu’rnbera Kuruvifa’s Son  and     Others      AIR 1987 SC 2328.  We may extract the relevant portion of     the  said judgment:  "Section 20 of the Specific Relief Act, 1963     preserves  judicial discretion to Courts as o decreeing      specific     performance.   The  Court should meticulously consider all  facts     and  circumstances of the case.      The Court is not bound to  grant     specific  performance merely because it is lawful to do so.   The     motive      behind the litigation should also enter into the judicial     verdict.   The Court should take care to see that it is not  used     as an instrument of oppression to have an unfair advantage to the     plaintiff."                It  is  the settled position of Saw that grant of a  decree     Tor  specific performance of contract is not automatic and is one     of  discretion of the Court and the Court has to consider whether     it  will  be  fair,  just  and equitable.   Court  is  guided  by     principle of justice, equity and good consensus.  As stated in P.     V.   Joseph’s  Son Mathew (supra) the court  should  meticulously     consider  all  facts  and circumstances of the      case  and  motive     behind      the  litigation  should also be considered.   High  Court     considering  the facts of this case and observed as follows:  "We     are  conscious      of  the  fact  that the  defendant  has  been  in     possession  of the said quarter for the last several decades  and     logical      consequence of affirming the Judgment of the trial court     would  mean  considerable hardship to him, at the same      time  the     conduct      of the defendant does not justify any further indulgence     by  the court.      We have no doubt that the defendant has tried  to     wriggle      out  of the contract between the parties because of  the     tremendous escalation in the prices of real estate properties all     over  the  country  and in Delhi, inparticular in  the      last  few     years."                In  view      of the above dear finding of the High Court  that     the  appellant      tried to wriggle out of the contract between  the     parties       because  of  escalation  in   prices  of  real   estate     properties,  we      hold  that the respondent is entitled to  get  a     decree as he has not taken any undue or unfair advantage over the     appellant.   it      will be inequitab!e and unjust at this point  of     time  to deny the decree to the respondent after two courts below     have  decided  in favour of the respondent.  While coming to  the     above  conclusion  we have also taken note of the fact      that  the     respondent  deposited  the  balance of the consideration  in  the     Trial  Court and also the amount in the High court, as      directed.     On  the      other hand appellant as held by the High Court tried  to     wriggle      out of the contract in view of the tremendous escalation     of  prices  of real estate properties.      However, to mitigate  the     hardship  to  the  appellant we direct respondent  to  deposit      a     further      sum of Rs.3,00.000/- within 4 months from today with the     registry of this Court and the amount shall be kept in Short Term     Deposit in a nationalised bank.      While giving the gbove direction     we  have  taken      note of the offer made to us on  behalf  of  the     respondent.  This amount is to be paid to the appellant on giving     his possession of the suit property to the                respomdent  within 6 months from the date of the deposit of     the  -      above  amount.  The appellant shall also be  entitled  to     withdraw  the amount already deposited in the Trial Court and the     amount      of Rs.1,00.,000/-which has been kept in Interest  bearing     fixed  deposit in the registry of the High Court.  With the above

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   modification  of  the  judgment      of the  High  Court,  appeal  is     dismissed.  However, on the facts and circumstances.  of the-case     parties are directed to bear their own cost.     CONTENTION NO. 2:     So far as this contantion is concerned, it has to b: kept in view that     basic conditions of Section 44-A have clearly been satisfied by the     decree-holder, Respondent No.l, who   to execute foreign decree     of Admiralty Court against Respondent No.2 who has suffered the     decree in personam from the English Admiralty Court. Certified copy     of the decree is already filed in the execution proceedings. It is,     admittedly, a decree passed by the superior Court of Admiralty in     England. That Court is situated in reciprocating territory as united     Kingdom has been duly notified by the Central Government as a     reciprocating territory.    However, Mr. P. Chidambaram, learned     senior counsel for the appellant, submitted that even if that is so, on a     combined reading of Section 44-A and Section 39 sub-sections (1)     and (3) of the C.P.C., it must be held that before such execution     proceedings can be entertained by the Andhra Pradesh High Court in     exercise of its admiralty jurisdiction as successor to the Chartered     High Court of Madras, it must be shown that it was a competent Court     which could have entertained such a suit of Respondent No.l against     Respondent No.2 seeking decree in personam against it. He     submitted that neither the foreign decree-holder Respondent No.l nor     foreign judgment-debtor Respondent No.2 are Indian Nationals. None     of them has any connection with India as residents or having any     immovable property in India and no part of cause of action has also     arisen in India in favour of Respondent No.l against Respondent     No.2.          That the foreign decree of appellate Court is a personal decree     against Respondent No.2 who is alleged to have committed breach of     contract in London and hence the Admiralty Court’s jurisdiction was     invoked in England because the suit filed by Respondent No. I     against Respondent No.2 was pertaining to the breach of salvage     contract regarding Respondent No.2’s ship H.V. Al Tabish which, on     the date of the filing of the suit in English Admiralty Court, allegedly     belonged to Respondent No.2.   According to Mr. P. Chidambaram,     learned senior counsel for the appellant, as no part of cause of action     in this case had arisen in India and, especially within the local     territorial limits of the Andhra Pradesh High Court, even though it may     be acting as an Admiralty Court such a suit could not have been filed     by Respondent No. I personally against Respondent No,2 in the     Andhra Pradesh High Court. If that is so, the Andhra Pradesh High     Court is not competent to execute such a decree even by resorting to     the legal fiction created by Section 44-A by treating such a foreign     decree of English Admiralty Court as if it was a decree passed by the     Andhra Pradesh Admiralty Court, in order to buttress this contention     Mr. P.Chidambaram, learned senior counsel for the appellant, gave     an extreme example.   He placed a hypothetical illustration for our     consideration. An English national files a suit against another English     national for breach of contract regarding purchase of movable or     immovable property in England. A competent English Court passes a     decree at common law by way of damages for breach of contract by     the foreign defendant and in favour          of foreign plaintiff. If both the decree-holder as well as the judgment-     debtor happen to take a trip to India as tourists and if the English     decree-holder tourist finds his English judgment-debtor to be     possessed of costly wrist-watch or other costly movable property in     Agra when both of them are on a sight seeing tour of Taj Mahal at     Agra can execution of such a foreign decree be enforced in the     District: Court at: A.gra? Mr. P.Chidambaram, learned senior counsel     for the appellant, posed this question to himself. He submitted that 5     superficial reading of Section 44-A may entitle such a foreign national     English decree-holder armed with certified copy of the decree to file

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   executior proceedings for recovering his money claim against the     foreign judgment debtor in the District Court at Agra.      He submitted     that such executior petition would be travesty of justice and would     reflect an absurd situatici which cannot be countenanced on a     conjoint reading of Section 44-A an< Sections 38, 39 & 44 of the     C.P.C.     Such an extreme contention canvassed by Mr. P.ChIdambararr     learned senior counsel for the appellant, does not realty call for any     serioc discussion in the present proceedings as we are not     concerned with such hypothetical situation.  But the situation is not so     alarming as wrong assumed, with respect, by Mr.P.Chidambaram.     When we turn to Section 31 we find that a decree may be executed     either by the Court which passed it, by the Court to. which it is sent     for execution. This Section by itself refers 1          decrees passed by Indian Courts against defendants who may be     within the territorial jurisdiction of the competent Civil Court in the light     of the correct place for suing in such Courts as laid down by Sections     15 to 20 of the C.P.C. If the nature of the suit against the defendant     falls within any of these provisions then, admittedly, such a decree     can be executed by the same Court which passed the decree being a     competent Court but it can be sent by that competent Court to any     other Court for execution if the defendant has properties within the     territorial jurisdiction of any other competent Court in India and that is     what Section 39(1) provides. The said section reads as under:     39. Transfer of decree.- (1) The Court which passed a decree may, on the application     of the decree-holder, send It for execution to another Court of competent jurisdiction,"  (a)     If the person against whom the decree Is passed actually and voluntarily resides or     carries on business, or personally works for gain, within the local limits of the jurisd iction     of such other Court, or (b)    if such person has not property within lhe local limits o f the     jurisdiction of the Court which passed the decree sufficient to satisfy such decree and     has property within the local limits of the jurisdiction of such other Court, or (c)     if the     decree directs the sale or delivery of immovable property situate outside the local limi ts     of the jurisdiction of the Court which passed ’it, or     (d)    if the Court which passed the decree considers for any other reason, which it sha ll     record in writing, that the decree should be executed by such other Court.     (2) The Court which passed a decree may of its own motion send «t for execution to any     subordinate Court of competent jurisdiction.     (3) For the purposes of this section, a Court shall be deemed to be a Court of competent     jurisdiction If, at the time of making the application for the transfer of decree to it,  such     court would have jurisdiction to try the suit in which such decree was passed."          Sub-section (3) of Section 39 provides that such a transferee court,     admittedly situated in India, shall be deemed to be a court competent     to execute such a transferred decree if, at the time of making the     application for transfer of decrees, it is shown to have jurisdiction to     try the suit in which such decree was passed. It must at once be     noted that Section 38 refers to executing Courts in India which have     themselves passed the decrees in suits which were within their     jurisdiction and were admittedly, therefore, competent Courts, Such     decrees passed by competent Courts in India can also be executed     by getting the decrees transferred to other competent Courts in India     provided the requirements of Section 39(1) read with subsection (3)     are satisfied. Therefore, the transferee Court in India must be a     competent Court, which at the time of making an application for     transfer of decree by the decree-hoider, should be shown to have     jurisdiction to pass such a decree even originally. It is easy to     visualise that, this requirement of a transferee Court in India which

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   gets jurisdiction qua such execution proceedings only  on transfer     from competent executing Court which has passed the decree in     India is conspicuously absent, when we turn to Section 44-A. It     nowhere lays down that the District Court in which decree of any     superior Court of a foreign territory is submitted for execution by a     foreign decree-holder must be a Court which could have been     competent to pass such a decree if in the first instance such a suit     was filed by a foreign national against another foreign national in     India. The second distinguishing feature is          that Section 44-A permits the foreign judgment debtor to challenge     the foreign decree even before the executing Court: being the District     Court in India on any of the grounds mentioned in Clauses (a) to (f) of     Section 13. A transferee Court under Section 39 which is called upon     to execute an Indian decree passed by a competent Indian Court     against the judgment-debtor cannot permit the judgment-debtor to go     beyond the decree sought to be executed by such transferee Court.     But apart from these two distinguishing features and even proceeding     on the lines as suggested by Mr. P.Chidambaram, learned senior     counsel for the appellant, that in any case the District Court in India     which is called upon to execute a foreign decree by treating it as if it     was passed by itself should, in the first instance, be shown to be     competent to pass such a decree, the result would be the same on     the facts of the present case.     It is no doubt true that the foreign decree, which is sought to be     executed, is a money decree passed by the English Admiralty Court     in favour of Respondent No. I against Respondent No.2. That decree     is in personam for the simple reason that, at the time when the suit     was filed in England, the res, namely, M.V. Al Tablish was not within     the territorial waters of English Admiralty Court. Therefore, the     plaintiff Respondent No. I had to sue only Respondent No.2 in     personam for recovering damages for breach of salvage contract     entered into between them. The said decree has become final          between the parties. It is also axiomatic that if the res, namely, the     vessel M,V. Al Tabish was available within the territorial waters of     English Admiralty Court it would have also become co-defendant     along with its owner Respondent No.2 and then the decree would     have a decree in rem against the vessel but if Respondent No.2 had     submitted to the jurisdiction of English Admiralty Court, the     proceeding would have been converted into proceedings in personam     and then a decree would have been passed also in personam against     Defendant No.2 along with decree in rem against the vessel. If that     had happened there would have been no difficulty for the English     decree-holder in pursuing the vessel M.V, A! Tabish and to get his     decree executed against the vessel wherever it went during the     course of its voyage over the high seas and its ultimate anchorage in     any port for the discharge or reloading of cargo in the course of     maritime business. The contract of salvage of such vessel and any     proceedings in connection with the execution of such contract or its     breach raising claim for damages would remain in the realm of     maritime claim legitimately within the jurisdiction of Admiralty Courts.     In the absence of a decree in rem against the vessel whose salvage     contract have given rise to the present maritime claim, the decree     passed by competent Admiralty Court in England though remains a     decree in personam could validly be executed by English Admiralty     Court itself.          Once decree of foreign Superior Court is sought to be executed     under Section 44-A of the C.P.C. as if it is the decree of the Indian     Court executing the same, no further question would survive     regarding competence of such executing court. Stilt let us consider in     the alternative the question of competence of the Andhra Pradesh     Admiralty Court for entertaining such a suit in its inception. Then the     question arises whether the Andhra Pradesh High Court which is,

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   admittedly, having admiralty jurisdiction as a successor to the     Chartered High Court of Madras could have entertained such a suit in     the first instance, we have, therefore, to visualise a situation by way     of flashback as if a suit had to be filed in the first instance by     Respondent No. I against Respondent No.2 in the admiralty     jurisdiction of the Andhra Pradesh High Court in 1994 instead of in an     English Court provided the res i.e. the ship was found at that time in     the territorial waters of Andhra Pradesh. Then Respondent No. I     could have filed a suit in personam against Defendant No.2 because,     admittedly, it was alleged to have committed breach of salvage     contract in connection with the sea-going vessel M.V. A/ Tabish     which is a res and which by chance was found within the territorial     waters of the port of Visakhapatnam in 1994. Such a ’res’ would have     admittedly remained within the original admiralty jurisdiction of the     Andhra Pradesh High Court. Respondent No. I thus could have     validly filed a suit praying for decree in rem against the vessel H.V. Al     Tabish making it as Defendant No. I along with its owner Defendant     No.2. What the English Court could do in connection with          the suit validly filed on 11.10.1994 by Respondent No. I against     Respondent No.2 would have been validly done by the Andhra     Pradesh High Court if the vessel. Respondent No. I and Respondent     No. 2 were all within the territorial admiralty Jurisdiction of the Andhra     Pradesh High Court at that time. It is the case of Respondent No. I     decree-holder that pending the said proceedings, illegally and by way     of a fictitious transaction, the said vessel is alleged to have been     transferred by Respondent No.2 infavour of M.V. Al Quamarsnd the     ship’s name is changed to H. V. Al Quamar form M.V. Al Tabish     though in fact it still remains the property of Respondent No.2. That is     a question which is still to be considered by the Andhra Pradesh High     Court in the execution proceedings and for which we are not called     upon at this stage to make any observations. But the fact remains     that in such settings of the dispute between the parties such a suit     could have been validly filed in the Andhra Pradesh High Churl’s     admiralty jurisdiction if the vessel was in its territorial waters on 11.     ID. 1994, In such a contingency suit could then have been validly filed     by plaintiff-Respondent No. I against defendant-Respondent No.2     and it could have validiy joined the vessel also as Defendant No.2.     The Admiralty Court, being the Andhra Pradesh High Court, could     have under these circumstances validly entertained the suit and     would have been perfectly competent to pass a decree (n rem     against the ship as we/I as the decree in personam against its owner     Defendant No.2 if it had submitted to its jurisdiction for getting the     ship bailed out.   Such suit is perfectly          maintainable irr the Andhra Pradesh High Court in exercise of its     admiralty jurisdiction as already decided by a Bench of this Court in     the case of M.V. Elisabeth and Others vs. Harwan investment and     Trading Pvt. Ltd., Hanoekar House. Swatontapeth, Vasco-De-Gama,     Goa etc. [1993 Supp (2) SCC 433]. That was a case in which the res     in question was found within the territorial waters ofVisakhapatnam     Port. Neither the plaintiff nor the defendant had any nexus with the     territorial limits of the Andhra Pradesh. The cause of action has also     had not arisen within Andhra Pradesh still because of the presence of     res in territorial waters of the Andhra Pradesh, it was held by this     Court that the Andhra Pradesh High Court as Admiralty Court had     perfect jurisdiction to arrest the ship being sued as Defendant No. I     before judgment. In the light of the aforesaid settled legal position,     therefore, it must be held that once the vessel - M.V. Al Tabish came     within the territorial waters of the Andhra Pradesh, the Andhra     Pradesh High Court, as Admiralty Court, had complete jurisdiction to     even initially entertain the suit against not only the ship but against its     owner, that is alleged to have committed breach of salvage contract     ^athat ship. If such a suit was maintainable in the inception before the     Andhra Pradesh High Court in its admiralty jurisdiction, then at the

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   executing stage when Section 44-A was invoked for executing a     similar decree passed by competent superior Court in England in     exercise of admiralty jurisdiction, such a decree could validly be     executed by invoking the aid of corresponding Admiralty Court being     the Andhra Pradesh High Court          when the res was already within its jurisdiction. Consequently, even     reading Section 39 (3) with Section 44-A, there is no           from the L-     ::nd’JSion that the time when execution petition was moved before     the Andhra  Pradesh High Court by even treating it as a transferee     Court It can be said to be perfectly competent to entertain such a suit     even in its inception against the ship as well as its alleged owner and     to resolve the dispute between Respondent No.i and Respondent     No.2. It has to be kept in view that if the ship in question which is     arrested at Visakhapatnam had sailed out of the territorial waters of     Andhra Pradesh then the Andhra Pradesh High Court would have     lo.st its jurisdiction to entertain such a suit or the execution     proceedings for executing the decree of foreign Court. But once it     was within its territorial waters, the ship could havs been validiy     subjected to such a suit not only against itself but against its owner.     Whether the subsequent purchaser is a genuine purchaser of the     ship and whether the sale transaction is hit by any other provision of     law and whether the ship still remains the property of Respondent     No.2 could have been validiy examined in such a suit if it was     originally filed before the Andhra Pradesh High Court in its admiralty     jurisdiction. Under these circumstances, it cannot be said in the     background of this fact situation that the Andhra Pradesh High Court,     in exercise of its admiralty jurisdiction, was not competent to even     originally entertain such a suit in which a foreign Court had passed     the decree which is sought to be executed before it. Both the English     Admiralty Court, which is, admittedly a          Court of competent jurisdiction, as well as the Andhra Pradesh High     Court, being a corresponding Court of competent admiralty     jurisdiction, could not only entertain such a suit in the first instance     but could equally be competent to execute such a decree of Admiralty     Court.     The aforesaid analysis of Sections 44-A, 38 and 39 in the light of the     fact situation which is well-established on record furnishes a perfect     answer to the imaginary apprehension voiced by Mr.     P.Chidambaram, learned senior counsel for .the appellant, and to the     alleged absurd situation, which, according to him, may result if such     execution petitions are entertained under Section 44-A for execution     of foreign decrees passed between two absolute foreigners who have     neither any immovable property nor place of residence in India. It is     easy to visualise that a foreign English tourist who might have     suffered a money decree against another foreign tourist in England     may not be able to execute his decree in the District Court at Agra in     India only because his judgment debtor who is a mere tourist is found     to be possessed of some valuable property like jewellery or wrist-     watch etc., as neither wrist-watch nor the jewellery nor even any     valuable carpet possessed by a foreign judgment-debtor can give     jurisdiction to the District Court, Agra to even in the first instance     entertain such a suit by a foreign national ’against another foreign     national but has no moorings in India and suit against whom does not     fall within the fore-corners of Sections 15-20 of the C.P.C. subject, of     course,          to one rider i.e. such foreign national had not submitted to the     jurisdiction of the District Court, Agra. If he had, then the District     Court, Agra could have entertained such a suit in the first instance.     Neither the wrist-watch nor any other movable valuable properties of     the .foreign judgment-debtor can be equated with a res covered by a     maritime claim which can be validly subjected to adjudication for s     decree in rem by s competent Admiralty Court within whose territorial

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   jurisdiction the res is found to be available for being subjected to     arrest and detention either pending such Admiralty suit or in     execution of the decree passed by a competent Admiralty Court,     whether        ^ local or foreign, as the case may be, subject to such     foreign court being a Court in reciprocal territory as laid down by     Section 44-A of the C.P.C. The District Court, Agra could not have     passed a decree in rem against wrist-watch or carpet treating it to be     a res. Consequently, the apprehension voiced by     Mr.P.Chidambaram, learned senior counsel for the appellant, about     such extraordinary, unimaginable or hcrrendous situation v^ould     remain nearly imaginary, it is only in the Vight of the present facts we     hold that Section 44-A was rightly invoked by Respondent No.i     against Respondent No.2 and also against the vessel M.V. Af Tabish,     which, according to Respondent No. I, is renamed as MM. Al Quamar     and, which according to him, still belongs to its judgment-debtor     Respondent No.2. Whether the said contention is right or wrong will     have to be examined by the High Court under Order XXI Rule 58 of     the C.P.C., as noted earlier. We say nothing on this factual aspect. All     that          we hold in the present proceedings is to the effect that the execufon     petition on demurer was rightly held by the High Court as     maintainable before it. The second contention of Mr. P.Chidambaram,     learned senior counsel for the appellant, therefore, is also devoid of     any merits and stands rejected. The appeals, therefore, fail subject to     the liberty already given in the judgment of brother Banerjee, I to the     appellant to take away the ship subject to furnishing of suitable bank     guarantee of a nationalised bank as indicated therein.