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H. Ahmed and Co. Vs. Kohinoor Glass Factory Ltd., Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 43/2 of 1956
Judge
Reported inAIR1961AP476
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(5), 13, 20 and 47
AppellantH. Ahmed and Co.
RespondentKohinoor Glass Factory Ltd., Hyderabad
Appellant AdvocateSeetharami Reddy, Adv.
Respondent AdvocateG. Sivarama Sastri, Adv.
DispositionAppeal allowed
Excerpt:
.....filed suit for execution of decree in bombay obtained under breach of contract - respondent company registered in some other state - contented whether decree can be passed by bombay court - respondent carried business through agent in bombay - court having jurisdiction in state of bombay - empowered to issue ex-parte decree against respondent - held, decision of court is binding. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not..........in his plaint averred that there is a glass factory in bombay under the name of the mahaluxmi glass works and that at all material times the defendants were owning or working or working on their own account, the said mahaluxmi glass works, that by a contract in writing dated 28-10-1941 the said mahaluxmi glass works, of the defendants agreed to buy 100 grosses of soda water bottles of the type mentioned in the said writing at rs. 36/.- per gross, delivery up to february 1942 in one or more lots and that by reason of the breach of the contract they had suffered damages of rs. 4,900/- which the plaintiff-appellants were claiming. in para 5 of the plaint it was averred as follows:'the plaintiffs, being always ready and willing and offering to pay the price of the said bottles on the.....
Judgment:

Jaganmohan Reddy, J.

1. The question before the Full Bench is, whether the decree sought to be executed by the appellant is a foreign decree and whether, after the inauguration of the Constitution and the application of the Indian Civil Procedure Code to the Hyderabad State, it could be executed. The Executing Court notwithstanding the fact that there were reported judgments of the Hyderabad High Court holding, that such decrees passed by the courts in British India could be executed after the application of the Indian Civil Procedure Code, decided that the Bombay decree obtained by the appellant was an ex parte decree and being a foreign decree, it could not be executed except by way of a suit.

Subsequently, a Bench of this Court, to which one of us was a party held in Kishendas v. Indo Carnatic Bank, AIR 1958 Andh Pra 407 that decree passed by the Madras High Court prior to the inauguration of the Constitution and the application of the Indian Civil Procedure Code by Act II of 1951 could not be executed. But having regard to the importance of the point involved, the question was referred to a Full Bench. Before us, however, learned Advocate for the respondent produced a certified copy of the plaint, the proceedings before the Commissioner and the decree all of which, as will be seen hereafter make it unnecessary for this court to pronounce on this question.

2. It appears from the proceedings that the appellant, decree-holder, H. Ahmed and Company is a registered partnership firm carrying on business in Bombay. The respondent, the Kohinoor Glass Factory Ltd., is also a company registered under the Hyderabad Companies Act having its Head Office in Hyderabad. This company after the application of the Indian Companies Act in 1956 is deemed to be a company registered under the Indian Companies Act. The plaintiff in his plaint averred that there is a Glass factory in Bombay under the name of the Mahaluxmi Glass Works and that at all material times the defendants were owning or working or working on their own account, the said Mahaluxmi Glass Works, that by a contract in writing dated 28-10-1941 the said Mahaluxmi Glass Works, of the defendants agreed to buy 100 grosses of soda water bottles of the type mentioned in the said writing at Rs. 36/.- per gross, delivery up to February 1942 in one or more lots and that by reason of the breach of the contract they had suffered damages of Rs. 4,900/- which the plaintiff-appellants were claiming. In para 5 of the plaint it was averred as follows:

'The plaintiffs, being always ready and willing and offering to pay the price of the said bottles on the delivery after the date of the said contract up to Feb., 1942, and even thereafter, several times called upon the said Mahaluxmi Glass Works to deliver the goods, but without result. The plaintif hereafter in writing called upon the defendants to give delivery of the goods. By their letter dated 8th July 1942, the defendants replied as follows:

'We have no knowledge of the order placed with our Mahaluxmi Glass Works and therefore we regret we cannot do anything in the matter.' The plaintiffs then sent to the defendants copy of the contract, and asked the defendants- either to carry out the contract, or to pay damages to which letter, the defendants have not sent any reply.

Copy of correspondence is hereto annexed and marked 'B'.'

In paragraph 8, the cause of action has been stated thus: 'The defendants carry on business at Begumpet, in Deccan, but the goods were to be delivered in Bombay and the contract was made in Bombay; as it might be possibly contended by the defendants that the money were to be paid at their Head Office in Begumpet and the part of the cause of action arose outside the jurisdiction of the court, as a matter oE caution, the plaintiffs will apply for leave under Clause 12 of the Letters Patent.' On these averments, an ex parte decree was passed because the respondent-judgment debtor did not appear in spite of process being served on him.

3. Until these facts were brought to our notice, we were under the impression that the suit was against non-resident foreigner who being a resident of Hyderabad on the date of the suit was not obliged to appear and plead in the Bombay High Court. But the certified copy of the plaint and the averments therein prima facie show that the suit of the plaintiff was based on the ground that the defendant Was doing business in Bombay through a company under the name and style of Mahaluxmi Glass Works Ltd, Bombay. The learned advocate for the respondent states that the Mahaluxmi Glass Works Company is a limited company having been registered in Bombay and consequently a company registered in Hyderabad, viz., the Judgment-debtor, cannot own a company registered in Bombay which itself is a limited company. These facts do not appear from the plaint averments and it would not be proper for us to make any observations thereon.

But, on the plaint averments themselves, we are positive that the Bombay High court had ample jurisdiction as it was competent to pass a decree if the defendant was carrying on business within its jurisdiction as averred by him. The question of foreign decree therefore, in our view, does not arise on these facts and it is not necessary' for us to express any opinion on the legal question referred to us. It will be open for the judgment-debtor to take such defence as may be open to him under Section 47, C. P. C. at the time of the execution of the decree. As the lower court has merely disposed of the Execution Petition on the assumption and without any enquiry that it is a foreign decree and so cannot be executed and has also not considered the other points raised, it is open to the judgment-debtor to raise these questions. This appeal will be allowed and remanded for disposal according to law. Costs will abide the result.


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