Pratibha Upasani, -
(1.) THIS appeal is filed by the appellant Bank/Original Applicant Abu Dhabi Commercial Bank Ltd. being aggrieved by the judgment and order dated 31st March, 2004 passed by the learned Presiding Officer of D.R.T.-I, Mumbai in Original Application No. 3098/1999. By the impugned judgment and order, the learned Presiding Officer dismissed the Original Application filed by the appellant Bank. Being aggrieved, the present appeal is filed in this appellate Tribunal.
(2.) Few facts, which are required to be staled are as follows:
The appellant Abu Dhabi Commercial Bank Ltd. is a Banking company incorporated in the United Arab Emirates. It is the case of the applicant Bank that the defendant Gangadhar Hotchand Rohera was carrying on business alongwith one Mr. Hassan Ali Attar in the name and style of Golden Market General Trading Establishment, Dubai (Golden Market). The said Golden Market had availed credit facilities from the applicant Bank at Dubai. One Mr. Hussain Quasim Ali Al Shraif was the guarantor. The said Golden Market had failed and neglected to repay the amount and, therefore, the applicant Bank filed Civil Suit No. 1013/1983 in Dubai Civil Court against Mr. Hussain Ali Attar, the defendant and the guarantor Mr. Hussain Quasim Ali Al Shraif for recovery of Dhs. 2,60,32,366.84. In the said suit, the applicant Bank had obtained an attachment order against the Golden Market. When the matter had come up for hearing before the Civil Court on 10th January, 1987, the said Mr. Hassan Ali Attar, the defendant and guarantor Mr. Hussain Quasim Ali Al Shraif requested the Court to attest the reconciliation agreement arrived at between them and to pronounce judgment in accordance with the said agreement. The learned Civil Judge at Dubai accordingly attested the reconciliation agreement and passed a decree in terms thereof. As per the said judgment and decree, the defendant Gangadhar H. Rohera had to pay a sum of Dhs. 1,35,60,595/- in monthly instalments of Dhs. 1 lakh each commencing from January 1987 with interest at the rate of 9% per annum. In case of any two defaults, the outstanding amount was to become due and payable immediately.
It was the further case of the applicant Bank that the Golden Market paid instalments till October, 1990 and thereafter, committed two successive defaults in the months of November, and December, 1990, resulting in entire balance decretal amount due and payable together with interest at the rate of 14% per annum. On 24th October, 1991, a sum of Dhs. 1,37,873/- was recovered by the Civil Court by selling the property of Golden Market. Thereafter, the business units of the Golden Market were disposed of by the Civil Court, Dubai and the net amount of Dhs. 9,64,416/-was realized and was appropriated towards the decretal amount. After giving credit of the amounts paid by Golden Market and amounts recovered through the Court, a balance of Dhs. 1,79,35,509.40 was outstanding including interest at the rate of 14 per cent per annum Thus, aggregate sum of Dhs. 3,04,81,831.44 was outstanding which was equivalent to Rs. 25,90,95,414.20. The said amount was claimed from the defendant Gangadhar H. Rohera, resident of Mumbai. The defendant Gangadhar H. Rohera filed written statement wherein it was stated that the copies of reconciliation agreement of decree which the applicant Bank had filed along with the claim in the High Court were different from the certified copies of the alleged judgment. As per the copy filed in the High Court, the defendant was not party to the suit at all nor any order was passed against him. He was never present when the so called judgment and decree was passed and he had not signed the so called agreement. According to him there was no cause of action against him.
It was further stated by the defendant that the Golden Market a proprietary firm of Mr. Hassan Ali Attar, whereas the defendant Gangadhar H. Rohera had his own firm known as Golden Star Trading Establishment. It was submitted that there was no connection between Golden Market and Goolden Star. Both were independently and mutually exclusive of each other. It was further submitted by the defendant that although he had some business with the said Golden Market, he was not the partner of the said firm. According to the defendant, the said Mr. Hassan Ali Attar was an extremely influential person in Dubai being related to the ruling royal family. It was submitted that the defendant faced with his own difficulties qua the applicant Bank, the said Mr. Hassan Ali Attar had coerced him to sign a document which was not even stamped as per the law of the country. When the defendant had shown reluctance to sign the document, he was threatened that in that case he and his family members would come to grief. The defendant had therefore succumbed to the pressure and signed the said document even though he was not partner of Golden Market. According to him, the said purported agreement as also the so-called judgment and decree were against the principles of natural justice and were opposed to the public policy in India and were also violative of Foreign Exchange Regulations Act (FERA) and for these reasons, it could not be held to be binding in nature and would not be enforceable in India by Indian Courts because the decrees passed by U.A.E. Courts were not enforceable in India in the absence of requisite mutual treaty. Contention with respect to the application being barred by limitation was also raised.
The learned Presiding Officer after hearing both the sides and after going through the material placed before him including the claim affidavit of the Bank and the claim affidavit of the defendant accepted the contention of the learned Advocate appearing for the defendant on the point of limitation and held that the proceedings ought to have been initiated within three years of the date of judgment in question, which was passed on 10th January, 1987. He, therefore, held that the proceedings initiated on 22nd November, 1993 were hopelessly barred by limitation. Holding this, the learned Presiding Officer dismissed the Original Application. Hence, the appeal to the Appellate Tribunal.
I have heard Mr. Madan for the appellant Bank and Mr. Jagtiani for the respondent. I have gone through the proceedings, so also have considered the relevant Articles of the Limitation Act, 1963 and in my view, the learned Presiding Officer has correctly passed the order.
(3.) SUBMISSION made by Mr. Madan, the learned Advocate appearing for the appellant Bank was that in view of Article 136 of the Limitation Act cause of action for filing the present proceedings arose only on default being committed by the defendants in paying the instalments. He submitted that the first default was committed in the month of November, 1990 and therefore the suit filed in the High Court in November, 1993 was perfectly within limitation.;