Full Text
HIGH COURT OF DELHI
CS(COMM) 541/2023
AM ASSOCIATES INDIA PVT LTD. …Plaintiff
Through: Mr. Ashim Sood, Ms. Anannya Ghosh, Ms. Doel Bose and Ms. Kashish Chhabra, Advocates.
Through: None.
Date of Decision: 30th August, 2024
JUDGMENT
1. The present summary suit has been instituted under Order XXXVII Rule 1(2)(b)(iii) of the Code of Civil Procedure, 1908 (‘CPC’) seeking recovery of INR 568,54,15,389 along with pendente-lite interest and future interest at the rate as mentioned in the plaint till realization of the aforesaid amounts in full, against the Defendant and a further direction that the costs of the present suit be awarded in favour of the Plaintiff and against the Defendant.
2. It is stated that the Plaintiff is a beneficiary under Corporate Guarantee dated 01.08.2012 (‘Corporate Guarantee’) issued by the Defendant. As such the subject matter of the suit constitutes a commercial dispute as per Section 2(1)(c)(i) of the Commercial Courts Act, 2015 (‘Act of 2015’), it is stated that pre-institution mediation proceedings were initiated by the Plaintiff before the Delhi High Court Legal Services Committee; however, the Defendant did not join the said proceedings. A non-starter report to this effect was issued on 04.01.2022 and thereafter the instant suit came to be instituted on 31.07.2023.
3. On 16th August 2023, summons were issued to the Defendant.
4. Subsequently, IA No. 17523/2023 under Order VI Rule 17 r/w Section 151 of CPC was filed for amendment of the plaint to reflect the Defendant’s change in address. IA No. 17523/2023 was allowed on 06.09.2023 and fresh summons were issued to the Defendant at its new address.
5. As per Affidavit of Service filed on 08.11.2023, the service of summons along with suit papers was completed on 22.08.2023 and 14.10.2023 vide emails; however, the Defendant refused to receive the summons sought to be served through courier. It is stated that the e-mail address on which the service was effected is the e-mail address available on the website of the Defendant and, therefore, the validity of the said email is not in dispute.
6. In terms of Order XXXVII Rule 3(1) of CPC, the Defendant was obliged to enter appearance within ten days of service; however, the Defendant elected not to attend the proceedings conducted on 10.11.2023, 05.12.2023, 11.12.2023 and 19.01.2024. In these circumstances, the Defendant was proceeded ex-parte vide Order dated 19.01.2024.
7. In view of the aforesaid, it was submitted by the learned Counsel for the Plaintiff, that in terms of the provisions of Order XXXVII Rule 2(3) of CPC, the contentions and averments in the suit would deemed to be admitted and consequentially, a decree is liable to be drawn in terms as prayed.
8. This Court has considered the submissions of the counsel for the Plaintiff and perused the record. Factual Background to the Suit
9. The facts as stated in the plaint which are relevant for adjudication of the present suit are as under:
10. It is stated that on 18.02.2008, a sanction letter was issued by the Delhi branch of the State Bank of India (‘SBI’) to KSS Petron Pvt. Ltd. (‘KSS Petron’) (erstwhile KSS Infrastructure India Pvt. Ltd.) sanctioning an aggregate principal loan of INR 33 crores. A Loan Agreement dated 03.03.2008 was executed pursuant to the sanction letter. From time to time, the credit facility was renewed by way of Sanction Letter dated 21.05.2012 (‘Sanction Letter’) [the loan agreements and Sanction Letter are collectively referred to as ‘Facility Documentation’], such that the final loan outlay was of INR 306.40 crores (‘Credit Facility’).
10.1. In terms of the Facility Documentation, KSS Petron was also required to submit a Corporate Guarantee of the parent company, i.e., the Defendant herein. For the purposes of securing the grant of credit by SBI, the Defendant executed the aforesaid Corporate Guarantee.
10.2. Pursuant to the Facility Documentation, the following SBI accounts were opened for KSS Petron (i) Account No. 30346518607 for the sanctioned amount of INR 24 crores towards General Cash Credit Limited; and (ii) Account Nos. 31811676668 and 33217140063 both towards the IOCL Cash Credit Limit, having limits of INR 159.25 crores and INR 0.75 crores, respectively.
10.3. The terms of the Corporate Guarantee relevant to the present proceedings are as under: “2. The Guarantor shall ensure that the Borrower shall duly and punctually repay the said Credit Facility together with all interest. Liquidated damages, premium on prepayment on or redemption, costs, expenses and other monies in accordance with the Facility Documentation and perform and comply with all the other terms, conditions and covenants contained in the said Facility Documentation.
3. In the event of any default on the part of the Borrower in payment/repayment or any of the monies referred to above, or in the event of any default on the part of the Borrower to comply with or perform any of the terms, conditions and covenants contained in the Facility Documentation, the Guarantor unconditionally and irrevocably undertakes to pay the Bank forthwith on demand without protest or demur and without proof or condition shall, upon demand forthwith pay to the Bank all the amounts payable by the Borrower under the Facility Documentation together with interest on the amounts so demanded from him in the event of any delay in their making the payment to the Bank in terms of the notice of demand issued in this behalf by the Bank. …
7. This Guarantee shall be enforceable against the Guarantor jointly and severally notwithstanding that any security or securities comprised in any instrument(s) executed or to be executed by the Borrower in favour of the Bank shall at the time when the proceedings are taken against the Guarantor under the Guarantee be outstanding or unrealized or lost. …
10. The rights of the Bank against the Guarantor shall remain in full force and effect notwithstanding any arrangement which may be reached between the Bank and other Guarantors/Borrower from liability and notwithstanding that any time hereafter the other Guarantor may cease for why reason whatsoever to be liable to the Bank, the Bank shall be at liberty to require the performance by the Guarantor of their obligations hereunder to the same extent in all respects as if the Guarantor had at all times been solely liable to perform the said obligations.
11. To give effect to this Guarantee, the Bank may net as though the Guarantor were the principal Borrower to the Bank for all payments guaranteed by him as aforesaid to the Bank. …
16. This Guarantee shall not be wholly or partially satisfied or exhausted by any payments made to or settled with the Bank by the Borrower and shall be valid and binding on the Guarantor and operative until repayment in full of all monies due to the Bank under the Facility Documentation and the Bank issues a certificate in this regard.
17. This Guarantee shall be irrevocable and the obligations of the Guarantor hereunder shall not be conditional on the receipt of any prior notice by the Guarantor or by the Borrower and the demand or notice by the Bank as provided in this Guarantee hereof shall be sufficient notice or demand on the Guarantor.
18. The liability of the Guarantor under this Guarantee shall not be affected by:-
(i) any change in the status of the Borrower by reason if he being declare insolvent; or
(ii) any change in the constitution of the Bank/Guarantor.
19. This Guarantee is a continuing one and shall remain in full force and effect to such time the Borrower repays in full the said Credit Facility together with a interest, premium on prepayment or on redemption, costs, expenses and other monies that may from time to time before due and payable and remain unpaid to the Bank under the Facility Documentation.
20. The liability of the Guarantor hereunder shall be to the extent of Rs. 3,06,40,00,000/- (Rupees Three Hundred Six Crores Forty Lakhs only) plus an interest, premium on prepayment or on redemption, costs, expenses and other monies payable by the Borrower to the Bank under the Facility Documentation or any other letter or deed. Should there be any excess drawings of the said Credit Facility by the Borrower over and above the initial limit sanctioned to the Borrower, for any reason whatsoever, the Guarantor shall be liable for the entire amount outstanding and the Guarantor expressly waive notice of such excess drawal.” …
other rights and obligations of the Bank under this Deed or any other document pursuant hereto to any person/ entity in a manner or under or which such terms and conditions ads the Bank may decide in its sole discretion without reference to or intimation to the Guarantor. The Guarantor expressly agrees, in the event of sale or transfer as aforesaid to accept such person to whom the Credit Facility is sold or transferred as his lender and make the repayment of the Credit Facility to such person as may be directed by the Bank. The Guarantor shall not be entitled to directly or indirectly assign his rights or obligations under this Deed in part or in whole to any person.”
28. The Guarantor agrees that any admission or acknowledgment in writing by the Borrower of the amount of indebtedness of the Borrower or otherwise as in relation to the subject matter of the guarantee, shall be binding on the Guarantor and the Guarantor accepts the correctness of any statement of account served on the Borrower which is duly certified by the Bank and the same shall be binding and conclusive as against the Guarantor and the Guarantor further agrees that in making an acknowledgement or making a payment the Borrower shall be treated as the authorized agent of the Guarantor for the purpose of Indian Limitation Act, 1963.
31. This Deed of Guarantee shall be governed by and construed in accordance with Indian Laws and the Parties hereto submit to the exclusive jurisdiction of the Courts at Delhi except that any judgment, order or award obtained hereunder may be enforced in any jurisdiction.” (Emphasis supplied)
10.4. On 30.03.2015, KSS Petron executed a revival letter [issued to the Branch Manager, SBI Bank, Overseas Branch, New Delhi] under the Facility Documentation and acknowledged its liability for the amounts due under the Credit Facility.
10.5. Thereafter, SBI issued a notice on 05.10.2016 to KSS Petron as well as to the Defendant, demanding repayment of the outstanding amounts. On their failure to make the payments, SBI filed an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 before the Debts Recovery Tribunal-II, Delhi (‘DRT’) for recovery of the amounts due under the Credit Facility together with interest.
10.6. During pendency of the proceedings before the DRT, on 20.01.2017, KSS Petron issued a balance confirmation dated 20.01.2017 to SBI, confirming the amounts due under the Credit Facility as on 30.09.2015 as follows, and also acknowledged its interest liability:
10.7. It is stated that while proceedings before DRT were pending, on 01.08.2017, KSS Petron was admitted to a Corporate Insolvency Resolution Process (‘CIRP’) under the provisions of the Insolvency and Bankruptcy Code, 2016 (‘IBC’).
10.8. As required by IBC, SBI in its capacity as financial creditor of KSS Petron, submitted a claim of INR 3,087,448,942.73/- with the Resolution Professional of KSS Petron. The said claim included amounts due under the Facility Agreement. In proof of the claim so submitted, SBI filed the Facility Documentation and the Corporate Guarantee was included towards proof of security. Statement of Accounts were also filed for computation of interest due as on 01.08.2017. Account No. Amount (INR) 30346518607 23,44,96,077.52 31811676668 161,93,38,522 33217140063 55,63,242 Total 185,93,97,841.52
10.9. The Resolution Professional is stated to have admitted the entirety of SBI’s claim i.e., INR 308,74,48,942.73, which included the amounts under three loan accounts under the Credit Facilities i.e., INR 237,59,02,028 and recorded the same in the List of Creditors issued on 16.10.2018. In the said List of Creditors, while setting out the security interest of SBI, the Corporate Guarantee was specifically included.
10.10. In parallel, ArcelorMittal India Private Limited (‘AMIPL’) appears to have expressed its intent to be considered as an eligible resolution applicant in the CIRP of Essar Steel India Ltd. In the said proceedings, AMIPL having been found ineligible inter-alia on account of the outstanding liabilities of KSS Petron, the Supreme Court by its judgment in ArcelorMittal India Private Limited vs. Satish Kumar Gupta & Ors.[1] allowed AMIPL to establish eligibility by discharging such liabilities as borne out from paragraph 116 of the judgment, which is reproduced herein below: -
more opportunity to both resolution applicants to pay off the NPAs of their related corporate debtors within a period of two weeks from the date of receipt of this judgment, in accordance with the proviso to Section 29A(c). If such payments are made within the aforesaid period, both resolution applicants can resubmit their resolution plans dated 2.4.2018 to the Committee of Creditors, who are then given a period of 8 weeks from this date, to accept, by the requisite majority, the best amongst the plans submitted, including the resolution plan submitted by Vedanta. We make it clear that in the event that no plan is found worthy of acceptance by the requisite majority of the Committee of Creditors, the corporate debtor, i.e. ESIL, shall go into liquidation. The appeals are disposed of, accordingly.”
10.11. In compliance with the aforesaid direction, AMIPL is stated to have cleared the entire outstanding of KSS Petron of INR 1343,89,09,671/-, which included monies owed to SBI and liabilities flowing from the Credit Facility and Corporate Guarantee.
10.12. The debt of KSS Petron as well as the Corporate Guarantee ultimately came to be assigned in favour of AMIPL in terms of the Assignment Agreement dated 17.10.2018 (‘Assignment Agreement’).
10.13. Acknowledging the assignment in favor of AMIPL in terms of the Assignment Agreement, the Resolution Professional took on record AMIPL as the financial creditor of KSS Petron in place of the financial creditors who had assigned their loans to AMIPL, which included SBI.
10.14. Pursuant to receipt of monies by SBI under the Assignment Agreement from AMIPL, SBI withdrew the proceedings [filed against KSS Petron and the Defendant] before DRT.
10.15. Thereafter, AMIPL issued demand notices to the Defendant on 01.10.2021, 20.10.2021 and 13.11.2021 for payment of the outstanding amounts under the Corporate Guarantee. As the Defendant failed to make payments, the present suit is stated to have been filed by AMIPL.
10.16. During pendency of the suit, I.A. No. 36246 of 2024 under Order XXII Rule 10 CPC was filed for substitution of the AMIPL and change in the memo of parties on account of the approval of Scheme of Arrangement between AMIPL, AM Associates India Private Limited and ArcelorMittal Nippon Steel India Limited (‘Merger’). The Plaintiff relied upon the order dated 15.03.2023 passed by National Company Law Tribunal, Ahmedabad. The said application was allowed vide order dated 13.08.2024 and AMIPL was allowed to be substituted by AM Associates India Private Limited as the Plaintiff. Territorial jurisdiction of this Court to hear this suit
11. Learned counsel for the Plaintiff submitted that this Court has the requisite jurisdiction to adjudicate the present suit. He stated that Clause 31 of the Corporate Guarantee, specifically, provides that it is governed by the Indian laws and the parties have by express agreement agreed that the disputes are to be adjudicated by the ‘Courts at Delhi’. He stated that the cause of action has arisen within the jurisdiction of this Court as, the Credit Facility was sanctioned by SBI in Delhi and monies thereunder were disbursed from SBI Branch situated in Delhi. He stated that AMIPL maintains its bank account in Delhi [within the jurisdiction of this Court], wherein the amounts due under the Guarantee are to be paid by the Defendant, which details were duly communicated to the Defendant through the notice issued on 01.10.2021. The said bank account is now being operated by the Plaintiff herein. He stated that existence of bank account in Delhi is a relevant factor to determine the issue of cause of action and jurisdiction in the present suit. In this regard, he relied upon the judgment of the Supreme Court in A.B.C. Laminart (P) Ltd. v. A.P. Agencies[2].
12. He further stated that the notice dated 13.11.2021 calling upon the Defendant to discharge its obligations under the Corporate Guarantee were issued from New Delhi. Additionally, he stated that the common law principle that the “debtor must seek the creditor” has been duly accepted as being applicable by Indian Courts and therefore the suit has been rightly presented before this Court. In this regard he relied upon the decision in National Building Construction Corporation Ltd. v. Vysya Bank Limited[3].
13. In view of Clause 31 of the Corporate Guarantee and the admitted fact that all payments secured by the said Corporate Guarantee were made by SBI to KSS Patron in Delhi, this Court would have the territorial jurisdiction to try the suit as the cause of action has arisen at Delhi. Thus, the plaint has been validly presented before this Court. The cause of action of the Plaintiff is not time barred
14. Learned counsel for the Plaintiff submitted that no period of limitation for enforcement of a guarantee has been provided in the Schedule to the Limitation Act, 1963 (‘Act of 1963’). Therefore, the limitation for the purposes of this Suit have to computed in accordance with Article 113 of the Act of 1963, which provides a period of three (3) years from the date on which the right to sue arises.
15. He stated that the AMIPL’s right to recover under the Corporate Guarantee arose only upon assignment of the Credit Facility and
1981 SCC Online Del 222 [paras 11 and 12] Corporate Guarantee under the Assignment Agreement on 17.10.2018. Thus, the Suit had to be filed within three (3) years thereafter i.e., before 17.10.2021. He stated that in the interregnum, on account of the COVID-
19 Pandemic, various periods were directed to be excluded while computation of limitation by virtue of the Orders passed by the Supreme Court of India in In re: Cognizance for Extension of Limitation[4], wherein by way of Order dated 10.10.2022, the Supreme Court, directed that the entire period from 15.03.2020 to 28.02.2022 shall be excluded for the purposes of computation of limitation. He stated that the Plaintiff instituted pre-institution mediation on 27.11.2021 and the suit was filed on 31.07.2023.
16. He further stated that, even otherwise, the right to sue under the Corporate Guarantee for the first time arose on 05.10.2016, when the Defendant failed to make payments as demanded by SBI under the Corporate Guarantee. He stated that by virtue Section 18 of the Act of 1963, three (3) year’s period of limitation can be extended if the debtor acknowledges the debt within that period. He relied upon Clause 28 of the Corporate Guarantee to submit that by virtue of balance confirmations/acknowledgement of liability by KSS Petron from time to time, even otherwise the suit is well within limitation. To this end, he placed reliance on the following facts and events: DATE EVENT 01.08.2012 The Corporate Guarantee was issued by the Defendant. Suo Moto Writ Petition (Civil) No. 3 of 2020 30.03.2015 KSS Petron executed a revival letter under the Credit Facility, acknowledging its liability thereunder, extending limitation by 3 years. 20.01.2017 KSS Petron issued a balance confirmation to SBU for the amounts due under the Credit Facility, extending limitation by 3 years. 16.10.2018 KSS Petron (through its RP) acknowledged and admitted its liability to SBI through list of creditors, thereby extending the limitation by 3 years. 02.02.2019 KSS Petron (through its RP) acknowledged and admitted (within limitation) its liability towards the AMIPL (pursuant to the Assignment Agreement) through list of creditors, thereby extending the limitation by 3 years. 20.02.2020, 14.07.2021, 06.04.2022, 19.12.2022 KSS Petron (through its Liquidator) acknowledged and admitted (within limitation) its liability towards the ArcelorMittal India Pvt. Ltd. (pursuant to the Assignment Agreement), thereby extending the limitation period by 3 years. 31.07.2023 The present suit is filed.
17. The acknowledgement(s) dated 20.02.2020, 14.07.2021, 06.04.2022 and 19.12.2022 have been placed on record as Document Nos. 25 to 28 respectively in Volume 4 to substantiate the acknowledgment and admission of liability by KSS Petron’s Liquidator towards AMIPL. The present suit was filed on 31.07.2023, which is within three years from the last acknowledgment. The Court, thus finds merit in the aforenoted assertions and holds that the suit was within the period of limitation as prescribed. Entitlement of Plaintiff to proceed against the Defendant under the Corporate Guarantee in terms of Order XXXVII, Rule 1(2)(b)(iii) of CPC
18. Learned counsel for the Plaintiff stated that AMIPL and now consequently, the Plaintiff herein is entitled to proceed against the Defendant under the Corporate Guarantee. He stated that admittedly, the Corporate Guarantee was a security arrangement for the Credit Facility by virtue of Clause 4(c) of the Sanction Letter. Further, SBI and the Resolution Professional/Liquidator of KSS Petron have also acknowledged that the Corporate Guarantee is a security for the Credit Facility.
19. He stated that by virtue of the Assignment Agreement and the Scheme, the Plaintiff is entitled to recover from the Defendant, the amount due under the Credit Facility through the Corporate Guarantee. He stated that amounts due under the Credit Facility were claimed by SBI and acknowledged and admitted by the Resolution Professional of KSS Petron in the List of Creditors issued on 16.10.2018. Accordingly, the said amounts are ‘Amounts Due’ in terms of Clause 1.1.(a) of the Assignment Agreement.
20. He stated that as per Clause 2.1.[1] and 2.1.[2] of the Assignment Agreement, the Corporate Guarantee [being a ‘security interest’ as defined in Clause 1.1(j) of the Assignment Agreement] the right to initiate recovery proceedings specifically vests in AMIPL.
21. He stated that the Plaintiff is further entitled to recover dues of KSS Petron under the Credit Facility from the Defendant since the Defendant’s liability is co-terminus with KSS Petron by virtue of Clauses 2, 3, 4, 7, 10, 11, and 19 of the Corporate Guarantee. He stated that the quantum payable to the Plaintiff under the Corporate Guarantee is capable of being determined by arithmetical calculation and is therefore, recoverable under Order XXXVII Rule 1 (2)(b)(iii) of CPC.
22. From the documents on record, it is evidenced that the Corporate Guarantee together with the right to sue thereon to recover the dues there under from the Defendant was assigned to AMIPL under the Assignment Agreement. The said right vested in the Plaintiff by virtue of the Merger, and transfer and vesting of the receivables in connection with KSS Petron on the Plaintiff.
23. In the facts noted above, this Court is satisfied that the present suit filed for recovery of amounts paid by AIMPL to SBI for the debt of KSS Petron is recoverable from the Defendant under the Corporate Guarantee in these proceedings. The Plaintiff has rightly contented that the quantum recoverable under the Corporate Guarantee is an ascertained amount capable of calculation and therefore, the Plaintiff is entitled to the recovery in the present proceedings. Quantum payable under the Corporate Guarantee is acknowledged and admitted
24. The Plaintiff, under the Corporate Guarantee, has sought recovery of INR 568,54,15,389/- [comprising INR 65,48,48,594/- towards Account No. 30346518607, INR 5,02,43,39,513/- towards Account NO. 31811676668 and INR 62,27,282 towards Account No. 33217140063] which includes interest computed at the rate of 11.75% p.a. for account(s) – (i) 30346518607 and (ii) 33217140063; and 12.75% p.a. for account – 31811676668, and default interest (for all accounts) at the rate of 2% p.a. as on 31.07.2023.
25. Learned counsel for the Plaintiff stated that the amounts due are computed on the basis of the claim filed by SBI with the Resolution Professional of KSS Petron. As required under IBC, SBI computed the principal outstanding and interest as on 01.08.2017 (i.e. the date on which KSS Petron was admitted to the corporate insolvency resolution process). Thereafter, SBI’s claim towards principal outstanding and interest was admitted by the Resolution Professional.
26. He stated that pursuant to the Assignment Agreement, the Plaintiff stepped into the shoes of SBI, including for the amounts due under the Credit Facility. KSS Petron’s Resolution Professional, and Liquidator, have on 20.02.2020 acknowledged KSS Petron’s liability towards the Plaintiff, including towards the Credit Facility.
27. He contends that acknowledgement/admission of liability by the principal debtor (i.e. KSS Petron herein) amounts to an acknowledgement/admission of liability by the Defendant (i.e. Guarantor herein. In this regard, he relied upon the decision of the Supreme Court in Asset Reconstruction Co. (India) Ltd. v. Bishal Jaiswal[5].
28. He submitted that Defendant has not contested the quantum payable despite being put to notice and the Defendant not having entered appearance in accordance with Order XXXVII of the CPC, the assertions of the Plaintiff in the suit stand admitted, including the quantum payable, entitling it to the decree as prayed for in the present suit.
29. The facts contended by the Plaintiff are a matter of record and have been dealt with while dealing with the issue of limitation. The facts contented by the Plaintiff qua the quantum of recovery are duly borne out from the documents filed on record. In view of the undisputed facts, the Plaintiff is entitled to a sum of INR 568,54,15,389/- as prayed for in prayer clause (a) of the suit. Proceedings in Kazakhstan qua the Corporate Guarantee would not come in the way of this Court while decreeing this Suit
30. While the Defendant has not entered appearance, during the course of the present proceedings, the Plaintiff has stated that it has learnt that some proceedings were initiated in Kazakhstan by one Oreon Management LLP, purporting to be shareholder of the Defendant seeking cancellation of the Corporate Guarantee (‘Kazakhstan Proceedings’).
31. In the interest of completeness, this Court shall now deal with the same.
32. Learned Counsel for the Plaintiff, on instructions, submitted that in the circumstances set out at Paras 30 - 32 of the judgement dated 30.05.2023 of this Court in CS(COMM) 592/2022, the Kazakhstan Proceedings had come to the notice of AMIPL, although the same was not served upon AMIPL. Subsequently, after filing of the instant suit, AMIPL received an email from the Liquidator of KSS Petron containing certain documents which the Liquidator had received by email.
33. Learned Counsel for the Plaintiff, on instructions, stated that AMIPL/the Plaintiff is not aware of any proceedings in India for enforcement of any orders passed in the Kazakhstan Proceedings. He further submitted that even assuming that such order could have been a defense in the present proceedings; it was for the Defendant to have entered appearance and canvassed the same for the consideration of this Court.
34. In this backdrop, learned counsel has drawn this Court’s attention to the Treaty on Mutual Legal Assistance in Civil Matters between India and Kazakhstan (‘MLAT’). The MLAT would require this Court to recognize a final order passed by the relevant Court of Kazakhstan in accordance with Indian laws. Kazakhstan not being a reciprocating territory under Section 44A of the Code, it would be incumbent on a party seeking to enforce a final order of any Court of Kazakhstan to file a suit thereon. This Court is fortified in this view by virtue of the following judgments: A.S. Sandhu v. Mithals International (P) Limited[6]
35. In the present case, the Defendant has not even entered appearance, much less taken steps before this Court, for enforcement of any final order passed in the Kazakhstan Proceedings.
36. As such therefore, this Court is not impaired in any manner from passing this decree for the sum claimed in the plaint by virtue of any order passed in the Kazakhstan Proceedings.
37. The rate of interest is hereby awarded at the rate of 12% keeping in view the averments made in paragraph 7 of the plaint and the prevalent rate of interest.
38. Thus, in the findings returned hereinabove, the Plaintiff is entitled to the reliefs claimed in the present suit is accordingly decreed. The Plaintiff i.e., AM Associates India Pvt. Ltd. is entitled to a decree against the Defendant for a sum of INR 568,54,15,389/- along with interest pendente-lite and future interest at the rate of 12% per annum till realization of the aforesaid amounts in full. The Plaintiff is additionally held entitled to the costs of the present suit. The suit is accordingly disposed of. Pending application, if any, also stands disposed of.
MANMEET PRITAM SINGH ARORA, J AUGUST 30, 2024/mr/msh/MG