HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.27171 OF 2013 Date: 04.06.2014 Between :
Ahmed Saleh Alsayari S/o Saleh Juman Alsayari P O Box No. 2014, Abu Dhabhi, UAE and another … Petitioners and Bank of Baroda, Post Box No. 107, Hanuman Tekdi, Abids, Hyderabad … Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.27171 OF 2013 ORAL ORDER:
The two petitioners in this writ petition claim to be citizens of United Arab Emirates (for short UAE). Father of the petitioners viz., Saleh Juman Alsayari, was living in UAE with his family. He opened fixed deposit accounts in various banks including respondent bank-Bank of Baroda. Saleh Juman Alsayari died in UAE on 2.5.1998. After the death of the father of petitioners, the competent authority in UAE issued death certificate. Abu Dhabi Sharia First Instance Court (Islamic Affairs & Endowments Sharia Judicature Circuit) by judgment dated 24.5.1998 granted order of succession in favour of wife of deceased, sons (petitioners herein and other brothers) and daughters. By placing reliance on the said order of succession granted by the competent Court in UAE, petitioners requested the respondent bank to pay the proceeds of fixed deposit accounts opened by their deceased father. This writ petition is instituted alleging that in spite of demand made by the petitioners, the amounts are not released and unless a direction is issued to the respondent bank to release the amounts to the petitioners and other legal heirs, grave prejudice would be caused to the petitioners.
2. Heard Sri K.B.Ramanna Dora, learned counsel for petitioners and Sri K.Mallikarjuna Rao, learned counsel for respondent bank.
3. Learned counsel for petitioners contended that as per the provision contained in Article XX (a), of the agreement between the Indian Government and Government of UAE, the order granted by the competent Court in UAE is not executable. He further contended that procedure envisaged in Section 44-A of CPC is applicable to money decrees only and since what is sought to be enforced is order of succession, the said provision is not applicable. He further contended that according to Article XV (3) the provisions are applicable only to matters relating to Tax and Allowances.
4. Learned counsel for the petitioners further submitted that several fixed deposit accounts were opened by the father of the petitioners in various other banks and other banks have already paid the money and the objection raised by the respondent bank is erroneous and it is only intended to harass and humiliate the petitioners; that for almost 15 years the amounts are lying in the bank and petitioners are deprived of enjoying the proceeds of the accounts opened by their father without any justifiable cause or reason.
5. Learned counsel for petitioners placed reliance on the decision of the Supreme Court in M.V. AL QUAMAR Vs. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD AND OTHERS
[1]
.
6. The respondent bank resisted the claim of the petitioners. The learned standing counsel for the respondent bank contended that the order passed by the competent Court in UAE cannot be relied upon unless the said order is validated by a competent Indian Court in accordance with Section 44-A of the Civil Procedure Code. It is also contended that only two persons have instituted the writ petition and order of the competent Court of UAE does not disclose that there are no other claimants. Thus, for proper discharge of its liabilities and to avoid future claims and litigation it is mandatory for the petitioners to first validate the order passed by the competent Court of UAE in accordance with provisions contained in Section 44-A of CPC and unless such proceedings are initiated and obtained, order cannot be executed in this country.
7. Learned standing counsel placed reliance on Article XVI (2) and Article XXI, of the agreement between the Indian Government and Government of UAE and decision of the Full Bench of Madras High Court in SHEIK ALI Vs SHEIK MOHAMMED
[2]
.
8. In reply learned counsel for petitioners contended that the decision of the Madras High Court in SHEIK ALI is related to money decree and therefore the said judgment has no application to the facts of this case.
9. On consideration of the rival contentions, the issue that arises for consideration is whether writ petitioners can seek mandamus to direct the respondent bank to release the proceeds of fixed deposits standing in the name of deceased father of petitioners based on Succession Certificate issued by the competent Court in UAE without resorting to the provision contained in Section 44-A of Civil Procedure Code.
10. Shorn of details, the claim of the petitioners is to grant them the proceeds of fixed deposits lying in the respondent bank based on the succession certificate issued by the competent Court in UAE. The respondent bank does not recognize the order of succession issued by the competent court in UAE on the ground that it is not executed by competent court in India.
11. The issue for consideration rests on the provision in Section 44- A of CPC read with relevant clauses of the agreement signed by the Republic of India with UAE.
Section 44-A of CPC reads as under:
“44-A. (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.”
12. The Republic of India and UAE have entered into an agreement concerning judicial cooperation in civil and commercial matters etc. The relevant articles which are relied upon by the contesting parties are Articles XV, XVI, XX, and XXI. They read as under:
XV: (1) Each of the contracting parties shall, in accordance with its laws, recognize and/or execute decrees passed by the Courts of the other contracting party in civil, commercial and personal matters and by criminal Courts in civil matters.
(2) The term ‘Decree’ as used in this agreement, whatever its designation, means any decision rendered in judicial proceedings by a competent court of the Contracting States.
(3) This agreement shall not apply to interim or provisional measures, except matters relating to taxation and allowances.
XVI: In disputes involving the question of capacity or status of a person, the courts of the state of which that person is a national at the time of institution of the suit shall be competent in those matters.
…..
XX: A decree shall not be recognized or executed in the following cases:
a. if it is not conclusive and executable;
b. or it has not been pronounced by a Court of competent jurisdiction;
c. or it has not been given on; the merits of the cases;
d. or it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of the requested party in cases in which such law is applicable.
e. or the proceedings in which the judgment was obtained are opposed to natural justice;
f. or it has been obtained by fraud;
g. or it sustains a claim founded on a breach of any law in force, or is contrary to the constitutional rules or the principles of public order in the requested State.
h. or it contravenes the rules concerning the legal representation or persons suffering from lack of capacity in the requested State;
i. or it is passed in absentia and the defaulting party was not duly summoned in accordance with the rules applicable in his country.
j. or the dispute in which the decree was passed is pending in a suit before one of the courts in the requested State, between the same parties and involving the same cause of action, and that suit was raised before one of the courts of the latter State, at a date prior to the raising of that dispute in the court of the State which passed the decree, and provided that the Court before which the suit was raised, is competent to here and decide upon it.
XXI: Procedures relating to recognition or execution of a decree shall be subject to the laws of the requested State.
13. Petitioners are the residents of United Arab Emirates. Their father invested in fixed deposit accounts in Branch of Bank of Baroda located in Hyderabad in India. Their father died in UAE. Succession order was issued by competent court in UAE. This is the only basis for the petitioners to claim that the fixed deposits proceeds be paid to them. Bank of Baroda being an Indian Scheduled Bank is bound by the laws of the Country. For it to act on the order of competent Court in UAE to release the fixed deposits, it insists that the said order has to be executed by competent court in India.
14. Section 44-A of CPC is the basic element of domestic law vis-à- vis foreign Court orders. It is an independent and enabling provision being made available to a foreigner in the matter of enforcement of foreign decree. But for Section 44A of CPC and the covenants of agreement with UAE, the order of competent Court in UAE has no legal validity and can not be enforced in India.
15. There is no merit in the contention of learned counsel for petitioners that the covenants are applicable only to money decrees. If said contention is accepted, then the petitioners cannot enforce the order granted by the competent court in UAE and cannot ask for payment of proceeds of fixed deposits lying with respondent bank on the basis of an order of competent court in UAE in any manner. A conjoint reading of the provisions of the Agreement between UAE and India makes it imperative to hold that the order obtained by petitioners from the competent Court in UAE has to be executed by a Court in India by resorting to provision in Section 44-A of CPC to have force of law and to bind the respondent bank.
16. The decision in M V AL QUAMAR does not come to the rescue of petitioners. In para 47 of the judgment Supreme Court observed as under:
“47. As noticed above Section 44-A is an independent provision enabling a set of litigants whose litigation has come to an end by way of a foreign decree and who is desirous of enforcement of the same; it is an authorisation given to the foreign judgments and as noticed above, the section is replete with various conditions and as such independently of any other common law rights, an enabling provision for a foreign decree-holder to execute a foreign decree in this country, has been engrafted on to the statute-book to wit: Section 44-A of the Code.”
17. For reasons aforesaid petitioners cannot seek mandamus to respondent bank to pay the proceeds of fixed deposits lying with the respondent bank by relying on order of succession granted by a competent Court in UAE without resorting to the procedure envisaged by Section 44-A of Code of Civil Procedure. Writ Petition fails and it is accordingly dismissed. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
JUSTICE P.NAVEEN RAO Date : 04-06-2014 tvk HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.27171 OF 2013 Date:04.06.2014
[1] (2000) 8 SCC 278
[2] AIR 1967 MADRAS 45