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Mohamed Mansour and ors. Vs. N. Abdul Cader Alias Ibrahim and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)2MLJ449
AppellantMohamed Mansour and ors.
RespondentN. Abdul Cader Alias Ibrahim and anr.
Excerpt:
- .....and that the present parties must seek further redress in the court which homologated the liquidation proceedings at hanoi alone.3. aggrieved by this judgment, the present parties preferred an appeal to the superior court of appeal at pondicherry. in the judgment of that court, the facts have been set out at some length. after stating the facts, the learned judges of that court observed that dispute was with regard to the transaction of purchase of sovereigns involving a considerable sum, which occurred during the existence of the company which subsequently suffered liquidation. this transaction ought to have been placed before the court seized of the liquidation proceedings, and should have formed part of the subject-matter of those proceedings. if, as contended by the present.....
Judgment:

M. Anantanarayanan, C.J.

1. Though these special appeals instituted by virtue of our jurisdiction over the Tribunals at Pondicherry, involve only a short preliminary issue, the matter is not without some degree of interest. Very briefly stated, the appeals before us are by the second wife and her son of a certain Abdul Hamid (deceased), who was a partner in a firm with extensive transactions. As will be clear from the judgment of the Superior Court of Appeal at Pondicherry, the action related to the alleged purchase of certain sovereigns made in May, 1950, and it was established that the funds realised by this, namely, 873,000 piastres had been paid to the Saigon shop, after advance deductions in the account of the shop at Hanoi.

2. Upon the facts of this alleged claim, which was, basically, a claim that the moneys of this transaction had been fraudulently suppressed in the Liquidation Proceeding admittedly homologated by the Court at Hanoi, the Tribunal of First Instance (Commerce) at Pondicherry came to the conclusion that the Pondicherry Court had no jurisdiction, and that the present parties must seek further redress in the Court which homologated the Liquidation proceedings at Hanoi alone.

3. Aggrieved by this judgment, the present parties preferred an appeal to the Superior Court of Appeal at Pondicherry. In the judgment of that Court, the facts have been set out at some length. After stating the facts, the learned Judges of that Court observed that dispute was with regard to the transaction of purchase of sovereigns involving a considerable sum, which occurred during the existence of the company which subsequently suffered liquidation. This transaction ought to have been placed before the Court seized of the Liquidation Proceedings, and should have formed part of the subject-matter of those proceedings. If, as contended by the present parties, there was a fraudulent concealment in that respect, the matter fell within the exclusive jurisdiction of the Tribunal at Hanoi. The Superior Court of Appeal also referred to Article 33 of the by-laws of the company, which explicitly states that all disputes arising between the partners during the existence of the company, or in the course of the liquidation operations connected with the affairs of the company, must be submitted to the Tribunal within whose jurisdiction the head office of the company is situate; here, admittedly, Hanoi. The appeal was dismissed, and these related Special Appeals have now been filed before us, one appeal from the main judgment of dismissal itself, and another from the ancillary judgment vacating the stay order in regard to garnishee proceedings obtained by the appellants.

4. We have carefully considered the arguments of learned Counsel (Sri Arunachalam) for invoking our jurisdiction. Learned Counsel sought to contend, at one stage of the arguments, that it is not clear that the Liquidation Court at Hanoi is now functioning as a successor Tribunal to the Tribunal originally seized of the Liquidation Proceedings, or that it is accessible to parties. But he was unable to produce any authoritative material, on which we could accept such averments. Normally, whatever might be the political exigencies of the Foreign State wherein the Court is situate, we must assume that there has been a continuity of the judicial administration unimpaired, and that the successor Court if any, will exercise the same jurisdiction, and recognise those matter concerning which a predecessor Court might have exercised a judicial function or power. We have no reason whatever to assume that this continuity of the judicial administration has been irretrievably impaired or broken, in the present instance. The other arguments of Sri Arunachalam are briefly these. Firstly, he contends that the balance sheet filed in the Liquidation Court which has been produced before us ex facie shows a fraudulent concealment in respect of the transaction relating to this purchase of sovereigns. Actually, according to him, the widow and the son had no knowledge of these transactions for a considerable time after the death of Mr. Abdul Hamid, and they discovered the facts only after an interval of about seven years, when they promptly instituted the proceedings. These averments are denied by the respondents. But the argument of learned Counsel for the appellants is that this fraud, which is ex facie evident, will clothe us with the requisite jurisdiction to investigate the matter, though the liquidation proceedings were completed before the Hanoi Court. The second argument is that, conceivably, Articles 59 and 69 of the Code Procedure Civile, which was the statute then being, applied to this matter by the Court at Pondicherry, will justify the interpretation that we have the necessary jurisdiction.

5. We have carefully examined both these arguments, and we are quite unable to accept them. As regards the first argument, it is clearly fallacious, for it amounts to an invitation to exercise our jurisdiction by assuming the facts, when the facts themselves have been denied. We must here record it as the contention or defence of the respondents that, according to their case, there was no fraud or fraudulent concealment. The relevant facts were taken note of in the Liquidation Proceedings, or were available for scrutiny in the record, and must therefore be held to have been adjudicated upon in the course of the homologation. We are quite unable to see how we can first proceed into controverted facts of that nature, assuming our jurisdiction, and then exercise a jurisdiction which clearly we do not possess. The argument has therefore to be repelled.

6. As regards Articles 59 and 69 of the Procedure Code of Pondicherry, a scrutiny of these Articles (translated text) shows that they relate only to the ordinary exercise of jurisdiction, by a Court of the domicile of the defendant so long as the ' commercial societies' are in existence. The present argument of Sri Arunachalam is that this rule may not apply, where the societies have ceased to exist. Such an argument could conceivably have some force, if the proceeding relates to transactions which arose subsequent to the liquidation, as between the erstwhile partners. But, in the present case, the transactions were admittedly part of the affairs of the firm which went into liquidation before the Liquidation Proceedings, and were comprised, or should have been comprised, in the accounts and records of the firm, which were the subject of scrutiny by the Court of Liquidation. If a fraud had been practised on that Court, as averred, obviously the parties aggrieved by the fraud would have to seek redress in that Court, for reopening the liquidation proceedings, and getting the necessary relief. We find from the commentary of Dalloz that this is the proper interpretation of Articles 59 and 69, and that those Articles do not justify any view that the Court of domicile will exercise a jurisdiction over matters which were the subject of proper decision earlier by a Foreign Court. We must reiterate that we have no means whatever for assuming that the Court at Hanoi is inaccessible, that it does not function as a successor Court, or that its decision cannot be exercised. We must also record that it is the specific case of the respondents that the Court of Hanoi possesses the necessary jurisdiction. If for any reason, the appellants seek redress in that Court, and find that the Court is not accessible by reasonable means or efforts, or that no recognition can be obtained in that Court with regard to proceedings of a predecessor Tribunal of this character, then it will be time enough for the appellants to initiate fresh steps for such legal remedies as they are advised to pursue, and as may be available in law, including Private International Law.

7. With these remarks in clarification, the Special Appeals are dismissed. No order as to costs.

8. We desire to record that the 1st appellant does not press the appeals and hence that, as far as he is concerned, both the appeals are dismissed as not pressed by him.

9. C.M.P. Nos. 8462 to 8465 and 10730 and 10731 of 1966 are ordered.


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