“1(1) If, in the case of any foreign country, Her Majesty is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to, or to any particular class of, judgments given in the courts of that country or in any particular class of those courts, substantial reciprocity of treatment will be assured as regards the enforcement in that country of similar judgments given in similar courts of the United Kingdom, She may by order in Council direct (a) that this Part of this Act shall extend to that country; (b) that such courts of that country as are specified in the Order shall be recognised courts of that country for the purposes of this Part of this Act; and (c) that judgments of any such recognised court, or such judgments of any class so specified, shall, if within subsection (2) of this section, be judgments to which this Part of this Act applies.” “1(3) For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.”
“2(1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the High Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court, and on any such application the court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered: Provided that a judgment shall not be registered if at the date of the application— (a) it has been wholly satisfied; or (b) it could not be enforced by execution in the country of the original court.” “2(2) Subject to the provisions of this Act with respect to the setting aside of registration – (a) a registered judgment shall, for the purposes of execution, be of the same force and effect;… as if the judgment had been a judgment originally given in the registering court and entered on the date of registration Provided that execution shall not issue on the judgment so long as, under this Part of this Act and the Rules of Court made thereunder, it is competent for any party to make an application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined.”
“4. The following Courts of the said territories shall be deemed Superior Courts of the said territories for the purposes of Part 1 of the said Act [the 1933 Act], that is to say:- (a) The Supreme Court. (b) All High Courts and Judicial Commissioners’ Courts. (c) All District Courts. (d) All other Courts whose civil jurisdiction is subject to no pecuniary limit provided that the Judgment sought to be registered under the said Act is sealed with a seal showing that the jurisdiction of the Courts is subject to no pecuniary limit.”
“4(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment— (a) shall be set aside if the registering court is satisfied— (i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; … (vi) that the rights under the judgment are not vested in the person by whom the application for registration was made; …” “5(1) If, on an application to set aside the registration of a judgment, the applicant satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment, the court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to the court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by the competent tribunal.” (i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; … (vi) that the rights under the judgment are not vested in the person by whom the application for registration was made; …”
“The [DRT] and the [DRAT] shall not be bound [by] the procedure laid down by the Code of Civil Procedure, 1908 …, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the [DRT] and the [DRAT] shall have powers to regulate their own procedure including the places at which they shall have their sittings.”
“… section 22 of the RDB Act … came up for consideration by the Apex Court [the Supreme Court of India] in the case of I.C.I.C.I. vs. Grapco Industries Ltd. and ors. reported in AIR 1999 SC 1975 wherein paragraph 11 the Apex Court has clearly observed that section 22 does not mean that the [DRT] will not have jurisdiction to exercise the powers of a Court as contained in the Code of Civil Procedure, rather, the [DRT] can travel beyond the Code of Civil Procedure. …”
“The tribunal may, after giving the applicant and the defendant an opportunity of being heard … pass interim or final order as it deems fit which may include order for payment of interest from the date on which payment of the amount is found due ...”
“… the Consortium of Bankers led by State Bank of India have expressed their intention to register the said Debt Recovery Certificate with the Hon’ble Queen’s Bench Division, the Royal Courts of Justice, London, United Kingdom for the purposes of enforcement of the Debt Recovery Certificate in United Kingdom as against the respondents and their assets, if any, in the United Kingdom”
“… under Section 17 of Chapter 3 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDB & FI Act), this Tribunal is vested with exclusive jurisdiction, powers and authority to entertain and decide applications from the Banks for recovery of debts due to such banks. In fact, under Section 18 of the same chapter, the jurisdiction, power and authority of all other Courts except the Supreme Court and High Court under Article 226 and 32 [which relate to constitutional issues], are barred in relation to recovery of debts due to banks. …”
“A Consortium of Bankers led by State Bank of India, a statutory corporation had filed an Original Application under OA 766/2013 interalia seeking adjudication of Debt and issuance of Debt Recovery Certificate against M/s Kingfisher Airlines Ltd., a Public Limited Company, M/s United Breweries Holdings Ltd., a Public Limited Company, Dr. Vijay Mallya son of late Sri Vittal Mallya and M/s Kingfisher Finvest (India) Ltd., This Debt Recovery Tribunal constituted and established under the Recovery of Debts due toBanks and Financial Institutions Act 1993 (now known as the Recovery of Debts and Bankruptcy Act, 1993) hereinafter called the Act, after adjudication of the claim had passed a Final Order dated 19.01.2017 and used an amended Debt Recovery Certificate dated 10.04.2017 under No.11395 as against the said respondents and their assets for a sum of Rs.6203,35,03,879.42/- (Rupees Six Thousand Two Hundred and Three crores Thirty five Lakhs Three Thousand Eight Hundred and Seventy Nine and Paise Forty Two Only) with interest and costs as stated therein. Presently, the Consortium of Bankers led by State Bank of India have expressed their intention to register the said Debt Recovery Certificate with the Hon’ble Queen’s Bench Division, the Royal Courts of Justice, London, United Kingdom for the purposes of enforcement of the Debt Recovery Certificate in United Kingdom as against the respondents and their assets, if any, in the United Kingdom. For the said purposes, State Bank of India has filed an affidavit praying for sealing of the Final Order and the amended Debt Recovery Certificate in terms of the provisions of theForeign Judgments (Reciprocal Enforcement) Act 1933 and The Reciprocal Enforcement of Judgments (India) Order, 1958 as applicable in United Kingdom. This Debt Recovery Tribunal after considering the said request made by way of affidavit, hereby confirms by way of sealing as required under UK Act, that this Debt Recovery Tribunal constituted and established under the Recovery of Debts due toBanks and Financial Institutions Act 1993 (now known as the Recovery of Debts and Bankruptcy Act, 1993) has been vested under Section 1(4) of the aforesaid Act, with no upper limit on the pecuniary jurisdiction but with lower limit of Rs.10 lacs on pecuniary jurisdiction. This Tribunal has exclusive jurisdiction to entertain applications filed by the banks and financial institutions for recovery of debt due to them for any amount above Rs.10,000,000/- (Rupees Ten lakhs), adjudicate and issue Recovery Certificate. Yours truly, [signature] (K. Srinivasan) Presiding Officer Debt Recovery Tribunal Bengaluru”
“(d) All other Courts whose civil jurisdiction is subject to no pecuniary limit provided that the Judgment sought to be registered under the said Act is sealed with a seal showing that the jurisdiction of the Courts is subject to no pecuniary limit”
“(1) The Registrar shall have the custody of the records of the Tribunal and shall exercise such other functions as are assigned to him under these rules or by the Presiding Officer by a separate order in writing. (2) The official seal shall be kept in the custody of the Registrar. (3) Subject to any general or special direction by the Presiding Officer, the seal of the Tribunal shall not be affixed to any other order, summons or other process save under the authority in writing from the registrar.”
“If, on an application to set aside the registration of a judgment, the applicant satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment ...”
“2 … It is clear from the terms of that subsection that the court only has power to set aside the registration of a judgment or to adjourn the application to set it aside in two specified situations. The first is where the applicant seeking such a remedy satisfies the court that an appeal is pending. As at the date of the hearing before Lady Smith it appears that the reclaimer had submitted a form, which subsequently proved to be inept, seeking leave to appeal at a time when he accepted that he was out of time to do so. In these circumstances we are not persuaded that at the date of the hearing before the Lord Ordinary an appeal was pending. We consider that the circumstances in which an appeal can be described as pending are limited to the following situations: firstly, where an applicant has lodged a timeous appeal and that appeal has not been determined or, secondly, where the court has allowed an appeal to be received late and the appeal is awaiting determination. It does not include the circumstances of the present case where an inept application had been made for leave to appeal. Nor does it cover a situation where a valid application has been made for leave to appeal late but that application has not been determined. Until such an application has been granted no appeal is pending. The second situation to which section 5(1) applies is where the applicant is entitled to appeal and intends to do so. The applicant must satisfy the registering court about both of these requirements before the court may consider whether to exercise its discretion in his favour. Although the reclaimer advised the Lord Ordinary that he intended to appeal if granted leave, it cannot be said that he was entitled to appeal for similar reasons to those outlined above in respect of pending appeals. For the foregoing reasons we are satisfied that the Lord Ordinary did not err when she concluded that the discretionary power under section 5 was not available to her. 3 Even if section 5 had been applicable in this case the reclaimer would not have succeeded. The fact that an appeal is pending does not preclude the registration of a judgment, (section 1(3) of the 1933 Act).Section 5 merely provides the court with a discretion not to register the judgment or to delay its registration where such an appeal is pending or where the appellant is entitled and intends to appeal. In the present case the reclaimer was aware of the proceedings. He took part in them. Initially he was represented by solicitors but dispensed with their services. He accepts that he was advised to obtain alternative representation and that judgment might pass against him if he failed to do so. In the action at his instance he was aware of the court order ordaining him to find caution and failed to do so. He was aware of the consequences of such failure. Moreover in 2010 he made representations about the expenses of the action at the instance of the petitioner indicating that he was well aware of the first judgment against him in that action and of the possibility of further judgments relating to expenses. He failed to appeal against the judgments within the time limit for such appeals and he has not yet been granted leave to appeal. He took no action to seek leave to appeal late until more than one year had elapsed after judgment had been pronounced against him and only then after the petition for registration of the judgments was served upon him. The reclaimer's stated fear that any payment made by him after registration of the judgment may be difficult to recover from the petitioner is ill founded. If he is granted leave to appeal and the court in New South Wales suspends the judgments pending determination of the appeal, the reclaimer will be able to seek suspension of any diligence undertaken following upon registration of the judgments. Moreover, if the judgments are satisfied by the reclaimer making payment to the petitioner and the reclaimer succeeds in a subsequent appeal, he could seek repayment from the petitioner and, if necessary, seek redress in the court of New South Wales. In that regard he is in no different position from anyone else against whom there is a final foreign judgment and who successfully appeals against that judgment. Section 1(3) of the 1933 Act deems a judgment to be final and conclusive “notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court”
“… Appeal was kept under objections for more than a period of one year without any rhyme and reason… Possibility of delaying tactics cannot be ruled out”
“In order successfully to establish a plea of res judicata or estoppel by record it is necessary to show that in a previous case a court, having jurisdiction to try the question, came to a decision necessarily and substantially involving the determination of the matter in issue in the later case.”
“As has been said many times, the purpose of a freezing order is not to provide the claimant with security but to restrain a defendant from evading justice by disposing of assets otherwise than in the ordinary course of business in a way which will have the effect of making itself judgment proof. It is that concept which is referred to by the label “risk of dissipation” … Based on these authorities [Thane Investments v. Tomlinson[2003] EWCA Civ 1272 at [21][28]; TTMI v ASM Shipping[2006] 1 Lloyd’s Rep 401 at [24]-[27]; and Congentra v. Sixteen Thirteen Marine[2008] 2 Lloyd’s Rep 602 at [49]], the defendants advance seven propositions which the bank does not dispute and which I accept. They were as follows:- (a) The claimant must demonstrate a real risk that a judgment against the defendant may not be satisfied as a result of unjustified dealing with a defendant’s assets. (b) That risk can only be demonstrated with solid evidence; mere inference or generalised assertion is not sufficient. (c) It is not enough to rely solely on allegations that a defendant has been dishonest; rather it is necessary to scrutinise the evidence to see whether the dishonesty in question does justify a conclusion that assets are likely to be dissipated. (d) The relevant inquiry is whether there is a current risk of dissipation; past events may be evidentially relevant, but only if they serve to demonstrate a current risk of dissipation of the assets now held. (e) The nature, location and liquidity of the defendant’s assets are important considerations. (f) Whether or to what extent the assets are already secured or incapable of being dealt with is also relevant. (g) So too is the defendant’s behaviour in response to the claim or anticipated claim.” (a) The claimant must demonstrate a real risk that a judgment against the defendant may not be satisfied as a result of unjustified dealing with a defendant’s assets. (b) That risk can only be demonstrated with solid evidence; mere inference or generalised assertion is not sufficient. (c) It is not enough to rely solely on allegations that a defendant has been dishonest; rather it is necessary to scrutinise the evidence to see whether the dishonesty in question does justify a conclusion that assets are likely to be dissipated. (d) The relevant inquiry is whether there is a current risk of dissipation; past events may be evidentially relevant, but only if they serve to demonstrate a current risk of dissipation of the assets now held. (e) The nature, location and liquidity of the defendant’s assets are important considerations. (f) Whether or to what extent the assets are already secured or incapable of being dealt with is also relevant. (g) So too is the defendant’s behaviour in response to the claim or anticipated claim.”
“… in the order dated 7.4.2016 this court had directed [Dr Mallya] to disclose the assets in an affidavit. The only purpose for disclosing the assets was to have a fair idea for the petitioners to go for a meaningful settlement on the proposals made by [Dr Mallya]. There is no petition before us for clarification or modification of order dated 07.04.2016. In the above circumstances, we do not find any tenable objection in disclosing these assets to the petitioners.”
“On plain reading of the Orders, in our view, whether the properties were in the hands of the concerned respondents on the date when the orders of restraint were passed by the High Court or had come into their hands or under their control at a later point in time, regardless of such qualification all properties whether movable or immovable were governed by the orders of restraint. There is no ambiguity of any sort and the Orders of restraint are quite clear. Consequently, funds amounting to US$ 40 million which came to be under the control of and in the hands of Respondent No.3 [Dr Mallya] were completely covered and governed by said orders of restraint. … The explanation that the funds now stand transferred in favour of the trusts over which Respondent No.3 has no control at all, in fact aggravates the extent of violation. It is clear that the funds which were in the control of Respondent No.3 have now been sought to be put beyond the reach of processes of court, which is reflective of the intent.”
“… Respondent No.3 was obliged and duty bound to appear in person in response to the notice issued by this Court in Contempt Petition. Instead, he chose to file application seeking recall of the orders issuing notice. Having considered the matter, we see no reason to recall that order … Respondent No.3 is therefore duty bound to appear in person in the present contempt proceedings. Since Respondent No.3 has not filed any reply to the Contempt Petition nor did he appear in person, though we have found him guilty of having committed contempt of court, we deem it necessary to give him one more opportunity and also hear him on the proposed punishment. We therefore adjourn matter to 10.07.2017 for hearing Respondent No.3 in person on matters in issue including one regarding the proposed punishment to be awarded to him for contempt of court. … Respondent No.3 may keep his affidavit ready to be tendered on the same day by stating mitigating circumstances, if any and any other submissions he chooses to advance.”
“Thus, the acts of Shri Vijay Mallya, UBHL and others indicate that a criminal conspiracy was hatched for obtaining/sanctioning of bank loan to M/s KAL [Kingfisher Airlines Ltd] in gross violations of established/prescribed procedures and M/s KAL had no intent for repayment of loan ab initio. Further, the money trail analysis revealed that out of the total loan of Rs 860.92 crore, sanctioned and disbursed by IDBI, Rs. 423 has been remitted out of India. The said payments were shown to be made towards aircraft rental leasing and maintenance, servicing & spare parts. There are huge variations in the payments especially in the leasing payments even for the same class and type of Aircrafts for the same time period. Despite repeated reminders, M/s KAL has failed to submit supporting documents such as lease agreements etc. to substantiate that the payments are bonafide. Therefore, it establishes that not only the said bank loan was obtained in questionable manner, it also establishes siphoning of the said loan abroad in a calculated and pre designed manner. During the course of investigation, it was observed that M/s KAL was declared wilful defaulter by IDBI bank … The proceeds of crime thus generated has been routed and transferred abroad. Investigations … further revealed that Shri Vijay Mallya has held a number of movable and immovable properties in India as well as outside India through his various companies established by him through his office personnel and which were directly or indirectly controlled by him. It may be recalled that Shri Vijay Mallya has tendered his personal guarantee and M/S UBHL has tendered corporate guarantee and as such, they are involved in the offence of money laundering. … During the course of investigation, it was revealed that Shri Vijay Mallya was the Chairman of M/s KAL at the material time and was instrumental in taking the material decisions pertaining to the affairs of the said Company, including obtaining of loans from various banks. Numerous opportunities were given to Shri Vijay Mallya, to appear in person to present his case before the Investigating Authority, by way of issuance of Summons. However, he failed to respond to the Summons and didn’t appear in person before the Investigating Authority. Accordingly, a letter was issued to the Regional Passport Office, N. Delhi for revocation of his passport, the request which was considered and accordingly, his passport was revoked by the Ministry of External Affairs, Government of India, …” viii) The confirmation decision records that the defendants had filed replies, and “were also given liberty to file written submission/arguments/synopsis which have been done by the concerned Defendants. The different Counsels appeared on behalf of the Defendants and argued the matter at length.”
“There is overwhelming evidence regarding generation of proceeds of crime by commission of the scheduled offences. There is sufficient evidence of such proceeds of crime having been utilized by the Defendants.”
“(1) The mere fact of delay in bringing an application for a freezing injunction or that it has first been heard inter partes, does not, without more, mean there is no risk of dissipation. If the court is satisfied on other evidence that there is a risk of dissipation, the court should grant the order, despite the delay, even if only limited assets are ultimately frozen by it; (2) The rationale for a freezing injunction is the risk that a judgment will remain unsatisfied or be difficult to enforce by virtue of dissipation or disposal of assets……In that context, the order for disclosure of assets normally made as an adjunct to a freezing injunction is an important aspect of the relief sought, in determining whether assets have been dissipated, and, if so, what has become of them, aiding subsequent enforcement of any judgment; (3) Even if delay in bringing the application demonstrates that the claimant does not consider there is a risk of dissipation, that is only one factor to be weighed in the balance in considering whether or not to grant the injunction sought.”
“The stronger the case for the order sought and the less serious or culpable the non-disclosure, the more likely it is that the court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging non-disclosure, than it was at the time when the question of disclosure first arose.”
“If the duty of full and frank disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.”
“they believed that, until a final order of the DRT was made and registered in England, there was no jurisdictional basis for seeking a freezing injunction from the English Courts”.