MEENAKSHI SAXENA & ANR. versus ECGC LTD. (FORMERLY KNOWN AS EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.) AND ANR.
[2018] 5 S.C.R. 421, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Ratio
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MEENAKSHI SAXENA & ANR.
v.
ECGC LTD. (FORMERLY KNOWN AS EXPORT CREDIT
GUARANTEE CORPORATION OF INDIA LTD.) AND ANR.
(Civil Appeal No. 5681 of 2018)
MAY 18, 2018
[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
Consumer Protection Act, 1986:
ss. 25 and 27 – Execution of decree – Decree against insurer
holding it liable to pay the insurance amount as agreed – Execution
petition – During pendency of the petition, the insurer (judgment
debtor) paid the decreed amount – Insured (decree holder) disputed
the payment on the ground that value of the foreign currency payable
should have been calculated on the conversion rate applicable on
the date of payment – District Forum as well as State Commission
held that foreign currency conversion rate has to be calculated as
on the date of payment – However, National Consumer Commission
held that conversion rate has to be as on the date of subject shipment
– On appeal, held: Interpretation of decree in a manner which may
amount to substitution of a new decree is not countenanced under
law – The court has to determine the relevant date for conversion
of currency, in accordance with terms and conditions of contract –
As per insurance contract in the present case, the insurer was
required to pay the insurance claim in accordance with the
conversion rate of the invoiced foreign currency on the date of
subject shipment for which the invoice was issued – The
interpretation given by District Forum and State Commission to the
decree in
question, is contrary to the terms of the contract and
amounts to drawing a new decree which is not permissible – The
payment already made by the insurer was as per the terms of the
contract and thus the insurer has complied with the decree.
ss. 25 and 27 – Execution proceedings – Power of execution
court – Scope of – Held: Executing court while executing a decree
cannot go beyond the decree and has to take the judgment on its
face value – When decree is ambiguous, it becomes the bounden
[2018] 5 S.C.R. 421
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duty of the executing court to interpret the decree – However, the
court has to be very cautious in supplementing its interpretation
and conscious of the fact that it cannot draw a new decree.
Dismissing the appeal, the Court
HELD: 1. The whole purpose of Execution proceedings is
to enforce the verdict of the court. Executing court while
executing the decree is only concerned with the execution part
of it but nothing else. The court has to take the judgment in its
face value.  Executing court cannot go beyond the decree. But
the difficulty arises when there is ambiguity in the decree with
regard to the material aspects. Then it becomes the bounden
duty of the court to interpret the decree in the process of giving
a true effect to the decree. At that juncture, the executing court
has to be very cautious in supplementing its interpretation and
conscious of the fact that it cannot draw a new decree. The
executing court shall strike a fine balance between the two, while
exercising this jurisdiction in the process of giving effect to the
decree. [Para 18] [429-C-E]
2. Admittedly, during the pendency of the execution
proceedings an amount of Rs. 4,86,953 as 90% value of  11,875.75
Euros as on 24.4.2002 and interest thereon of Rs. 6,33,653 as
directed by the court were paid by the respondent. Both the State
Commission and District Commission interpreted the order dt
12.10.2006 observing that Euro conversion rate has to be
calculated as on the date of payment and hence the respondent
company has to pay the remaining amount. However the NCDRC
has taken a different view while interpreting clause 17 of the
agreement and concluded that conversion rate has to be as on
the date of subject shipment for which the invoice was issued
and as the full amount with the same calculation is paid by the
respondent, NCDRC has dismissed the revision petition. [Para
20] [429-G-H; 430-A-B]
3. For determining the relevant date for conversion of
currency, the first procedure to be adopted by the court is to
decide the same in accordance with terms of the contract and if
such a clause is not available in the agreement then the courts
have to determine the best possible date. In the present facts,
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there is a specific clause in the agreement i.e clause 17 which
deals with rate of interest. The clause clearly says that currency
should be converted into rupees at the bank buying rate of
exchange at Mumbai on the date of relevant shipment. The
District Forum though has not mentioned about clause 17 of the
agreement but taking in to consideration the very same clause
has given interest from that day. The interpretation given by
District Forum as well as the State Commission to the order dt.
12.10.2006 is contrary to the terms of the agreement and amounts
to drawing a new decree which is not permissible. The order
passed by NCDRC is strictly in accordance with the settled legal
position and there is no infirmity with the order. [Paras 27 and
28] [434-E-H; 435-B]
4. Interpreting the decree in a manner which may amount
to substitution of a new decree is not countenanced under law.
Therefore, it is clear that as per the insurance contract, the
respondent insurer was required to pay the insurance claim in
accordance with the conversion rate of the invoiced foreign
currency in Indian rupee as per the bank buying rate of interest
at Mumbai on the date of subject shipment for which the invoice
was issued. The respondent has paid an amount of
Rs. 11,23,906/- to the petitioner during the pendency of execution
proceedings. The aforesaid payment was calculated on the basis
of conversion rate applicable at the time of shipment of invoiced
value and the interest
awarded by the consumer forum. In view
of the same, the respondent has complied with the order of the
forum, by paying full and final amount in terms of the order. [Para
29] [435-C-E]
Forasol v. ONGC, (1984) Suppl. SCC 263 : [1984] SCR
526 – relied on.
Case Law Reference
[1984] SCR 526
relied on
Para 22
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5681
of 2018.
From the Judgment and Order dated 20.10.2016 of the National
Consumer Disputes Redressal Commission, New Delhi in Revision
Petition No. 614 of 2015.
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.) AND ANR.
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Himanshu Gupta, Anil Kumar Tandale, Advs. for the Appellants.
Bharat Sangal, Ms. Babita Kushwaha, Ms. Vidushi Garg, Ms.
Anindita Deka, Ms. Isha Gupta, Rajesh Kumar-I, Gaurav Kr. Singh,
Anant Gautam, Aakash Sehrawat, V. Govinda Ramanan, Soumu Palit,
Advs. for the Respondents.
The Judgment of the Court was delivered by
N. V. RAMANA, J. 1. Leave granted.
2. This case arises out of the impugned order dated 20.10.2016, in
Revision Petition No. 614 of 2015, passed by the National Consumer
Disputes Redressal Commission [hereinafter referred as ‘NCDRC’
for brevity] wherein the NCDRC has allowed the Revision and set
aside the order of the District Forum which was confirmed by the State
Commission.
3. A brief reference to the facts of the case necessary for the
disposal of this case are that, the appellant had purchased an insurance
policy No. SCR0000093, dated 27.07.2000, from respondent no. 1 against
any loss suffered due to the reason of risks involved in the export of
goods from India.Under Clause 13 of the contract, the respondent had
agreed to pay 90% of the accrued loss, in the following manner-
Clause 13- Percentage of loss payable: The portion of the
amount of loss which the Corporation hereby agrees to pay shall
be 90%.
4. It would be necessary to note that the parties had explicitly
included a clause concerning the rate of currency exchange in the
following manner-
Clause 17-Rate of Exchange: All payments under this
policy
shall be in Indian Rupee at the head office of the Corporation and,
for the purpose of payment of premiums and losses, the gross
invoice value of the shipments invoiced in a foreign currency shall
be converted into Indian Rupee at the Bank buying rate of
exchange at Mumbai on the date of the relative shipment
PROVIDED THAT, devaluation of the currency in which the
buyer has to pay takes place before the claim is paid, the amount
claimed in Indian currency shall be based on the devalued rate.
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5. Coming back to the narration of the facts, appellant had sent a
consignment of the goodsby invoice no. 1, dated 01.04.2002, to M/s.
Parveena Enterprises (NF) France for value of 11875.75 Euro vide bill
of Lading No. PONLDEL 27008966 dated 24.04.2002. Even though the
purchaser of the goods accepted the delivery, but failed to make payments
to the appellant [seller]. After considering the claim of the appellant,
respondent no. 1 offered to pay a compensation amounting to 79.5% of
the loss, instead of 90% of the loss.
6. Aggrieved by the same, appellant filed a complaint before the
District forum against the respondents, alleging deficiency in service on
the part of the respondent.
7. The District Forum by order dated 12.10.2006, allowed the
complaint and directed the respondent herein (Insurer) to pay as under-
We accept the present complaint and direct the Ops to pay
the 90% of the value of 11875.75 Euro (goods exported by
the petitioner vide Lading No. PONLDEL 27008966 dated
24.04.2002) together with interest at rate of 12% per annum from
24.7.2002 (because three months time was sufficient for the OPs
to settle the claim) till the realization together with Rs. 3300/- as
litigation expenses within a period of 30 days from the date of
receipt of copy of this order.
(emphasis provided)
8. Even the appeal before the State Commission and a further
revision before the NCDRC were ended up in dismissal, therefore, the
order passed by the District Forum with
regard to the liability of the
respondent/insurance company has attained finality.
9. Despite the order dated 12.10.2006, passed by Ld. District
Forum, when the respondent no. 1 failed to make the payment to the
petitioner-complainant as per the terms set-out therein, the appellant
preferred an Execution Petition No. 34 of 2013 before the District Forum,
Panipat. During the pendency of the execution petition, the respondent
paid a sum of Rs. 11,23,906/- to the appellant/decree holders calculated
on the basis of conversion rate of 11,875.75 Euros as on 24.04.2002 and
the interest calculated thereon. The appellant/decree holders while
accepting the said payment disputed that the payment satisfied the decree,
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.) AND ANR. [N. V. RAMANA, J.]
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mainly on the plea that value of the Euros payable should have been
calculated on the conversion rate applicable on the date of payment.
10. The District Forum taking into consideration all these aspects,
has allowed the Execution Petition with the following observations:
“After hearing counsel for both the parties and after perusal of
the order of this forum it is very clear that this forum has passed
an order to pay 90% of value of 11,875.75 Euro. As such, the OP
was to pay the amount in Indian currency whichever was the
value of Euro. Specifically, when court is passing an order for
payment of amount as value of Euro the OP is bound to pay the
value of Euro when he is making the payment. Order of this forum
was passed in 2006 but till 2013 ECGC has not paid the amount to
the complainant in compliance of the order. Now at this stage it
is well settled law that executing court cannot go behindthe
decree under execution. In view of the order of this Forum,
the ECGC has to pay the value of Euro when he is paying
the amount.  Amount is to be paid in value of Euro whichever
value exists at the time of payment, in compliance with the
order of this Forum. In view of the above discussion,
certainly ECGC has not paid the complete amount as per
order passed by this Forum. Hence ECGC is further
directed to pay the amount (sic)
(emphasis supplied)
11. Respondent/insurance company being aggrieved by the
aforesaid order of the
Executing Court approached the State Commission
of Haryana in Revision Petition No. 66 of 2014. The State Commission
of Haryana did not find any merit in the petition and dismissed the same.
Again, the respondent approached the NCDRC in revision being Revision
Petition No. 614 of 2015. Interestingly, the NCDRC, by order dated
24.03.2015, dismissed the revision petition as withdrawn with a liberty to
the Respondents to approachthe  appropriate forum.
12. However, thereafter, respondents approached this court by
filing a special leave petition being SLP (C) No. 21085-86/2015 (later
converted into Civil Appeal No. 6108-6109 of 2016). This Court by order
dated 11.07.2016, while allowing the appeal, remanded the matter back
to the NCDRC for consideration on merits under the revisional jurisdiction
in the following manner-
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We have heard learned counsel for the parties at some length.
Our attention has been drawn by learned counsel for two parties
to an order dated 9th January, 2015 passed by a Full Bench of the
National Commission in Revision Petition No. 1792 of 2012
whereby the National Commission has taken the view that although
no appeal is maintainable against the order passed by the State
Commission in exercise of its appellate jurisdiction, any order
passed by the State Commission in exercise of its appellate or
revisional jurisdiction can be challenged before the National
Commission by way of revision under 21(b) of the Consumer
Protection Act. Learned counsel for the appellant submits that
the appellant is ready to take resort to the revisional jurisdiction of
the National Commission in the light of the Full Bench decision of
the National Commission, mentioned above, and that the matter
could for that purpose be remitted back to the National
Commission.
We accordingly allow these appeals but only to the extent
that order dated 24th march, 2015 passed by the National
Commission dismissing the revision petition filed by the
appellant shall stand set aside, Revision Petition No. 614
of 2015 restored and remitted back to the National
Commission for the disposal in accordance with the law in
the light of the Full Bench decision of the National
Commission, referred to earlier.
(emphasis supplied)
13. On remand NCDRC, by order dated 20.10.2016,which is
impugned before us
has allowed the revision of the respondent on the
ground that the Clause 17 of the Contract had explicitly provided for the
rule for calculating the rate of conversion in the following manner-
11. On bare reading of the above, it is clear that as per the insurance
contract, the opposite party insurer was required to pay the
insurance claim as per the conversion rate of the invoiced foreign
currency in Indian rupee as per the bank buying rate of interest at
Mumbai on the date of subject shipment for which the invoice
was issued. Undisputedly, sum of Rs. 11,23,906 paid by the
judgment debtor was calculated on the basis of conversion rate
applicable at the time of shipment of invoiced value and the interest
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.) AND ANR. [N. V. RAMANA, J.]
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awarded by the consumer forum. Therefore, it cannot be said
that any further amount is due from the opposite party under the
decree. Both the fora below have passed the impugned order in
utter disregard of the expressed term no. 17 of the insurance
contract. The order thus suffers from material irregularity and
cannot be sustained.
14. Aggrieved by the order of the NCDRC, the petitioner is in
appeal before this Court by a special leave petition.
15. Heard counsel appearing on behalf of both parties and perused
the material available on record.
16. Before we dwell on to the merits of this case, we would like
to note certain aspects of execution of a decree. Section 25 and 27 of
the Consumer Protection Act, 1986, provides for execution of awards.
It would be relevant to note that the ‘execution’ means-
The word ‘execution’ in its widest sense signifies the enforcement
of or giving effect to the judgments or orders of the court of justice.
In a narrower sense, it means the enforcement of those judgments
or orders by a public officer under the writs of fierifacias,
possession, delivery, sequestration, fierifacias de bonisecclesiaticis,
etc.
17. The amended Section 25 of the Consumer protection Act,
which is effective from 15.3.2003 may be relevant to be noted -
“25. Enforcement of orders of the District Forum, the State
Commission or the National Commission-
(1) Where an interim order made under this Act, is not complied
with, the District Forum or the State Commission or the National
Commission, as the case may be, may order the property of the
person, not complying with such order to be attached.
(2) No attachment made under sub-section (1) shall remain in
force for more than three months at the end of which, if the non-
compliance continues, the property attached maybe sold and out
of the proceeds thereof, the District Forum or the State
Commission or the National Commission may award such
damages as it thinks fit to the complainant and shall pay the balance,
if any, to the party entitled thereto.
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(3) Where any amount is due from any person under an
order made by a District Forum, State Commission or the
National Commission, as the case may be, the person
entitled to the amount may make an application to the
District Forum, the State Commission or the National
Commission, as the case may be, and such district Forum or the
State Commission or the National Commission may issue a
certificate for the said amount to the Collector of the district (by
whatever name called) and the Collector shall proceed to recover
the amount in the same manner as arrears of land revenue.”
(emphasis supplied)
18. The whole purpose of Execution proceedings is to enforce
the verdict of the court. Executing court while executing the decree is
only concerned with the execution part of it but nothing else. The court
has to take the judgment in its face value. It is settled law that executing
court cannot go beyond the decree. But the difficulty arises when there
is ambiguity in the decree with regard to the material aspects. Then it
becomes the bounden duty of the court to interpret the decree in the
process of giving a true effect to the decree. At that juncture the executing
court has to be very cautious in supplementing its interpretation and
conscious of the fact that it cannot draw a new decree. The executing
court shall strike a fine balance between the two while exercising this
jurisdiction in the process of giving effect to the decree.
19. In the facts and
circumstances of the case there is no dispute
about the fact that the liability of the respondent company to a tune of
90% value of 11875.75 Euros with interest at the rate of 12% from
24.7.2002 has attained finality. As per the calculation memo filed by the
appellant in execution proceedings she claimed total amount of
Rs. 25,76,883.00 i.e  principal amount of Rs. 7,61,105.00 calculated @
Rs 71.21 per Euro as on 17.4.2013 being 90% value of 11,875.75 Euros.
Further interest granted by the court from 24.7.2002 to 24.4.2013 to a
tune of Rs. 18,12,478.00.
20. Admittedly, during the pendency of the execution proceedings
an amount of Rs. 4,86,953 as 90% value of  11,875.75 Euros as on
24.4.2002 and interest thereon of Rs. 6,33,653 as directed by the court
were paid by the respondent herein. Both the State Commission and
District Commission interpreted the order dt 12.10.2006 observing that
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.) AND ANR. [N. V. RAMANA, J.]
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Euro conversion rate has to be calculated as on the date of payment and
hence the respondent company has to pay the remaining amount.
However the NCDRC has taken a different view while interpreting
clause 17 of the agreement and concluded that conversion rate has to be
as on the date of subject shipment for which the invoice was issued and
as the full amount with the same calculation is paid by the respondent,
NCDRC has dismissed the revision petition.
21. In the light of the above findings of the forums, in the light of
the arguments advanced, we have to examine whether the interpretation
adopted is in the process of giving a true effect to the decree or they
have gone beyond the decree by drawing a new decree. We are
compelled to observe that an order which is passed in the year 2006 is
still subject to litigation till date for the simple reason minimum care is
not taken by the forum to clarify the reckoning date for conversion rate
of currency.
22. In a contractual matter, when the decree is silent with regard
to the reckoning date of conversion of foreign currency in to Indian
rupees, what would be the methodology to be followed by the executing
court  is no more res integra, as this court has an occasion to deal with
elaborately in the  case of Forasol v. ONGC, 1984 (Supp.) SCC 263,
the facts of that case revolved around a contract entered into between
ONGC and Forasol for carrying out structural drilling in
relation to the
exploration of oil in the Jaisalmer area. The contract mandated a part
payment in the foreign currency i.e., French francs. Due to belligerent
situation prevalent between India and Pakistan in 1965, the contract
was suspended. In the meanwhile the Indian currency was devalued
resulting in Forasol claiming higher conversion rate. As the dispute was
not settled, the matter was referred to an arbitration. For the present, it
is sufficient to note that by the award of the arbitrator/Umpire mandated
conversion at the rate of FF 1000 equal to 1517.80 instead of exchange
rate of FF 1.033 equal to Re. 1.000. The aforesaid award was filed
before the Delhi High Court, which accordingly passed the decree on
07.05.1975 without any objections from the parties as to the form.
23. Thereafter, the Forasol filed an application for execution of
the award being Execution No. 77 of 1976. ONGC objected to the
aforesaid execution by contending that the rate specified in the award
was to be limited to the interest granted thereon and the same does not
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affect the main contractual amount. The learned single Judge negatived
all the contentions of ONGC. On appeal before the Division Bench, the
High Court accepted the contention of ONGC and therefore, Forasol
appealed before this court. The question before the court was concerning
choosing the best date for the rate of conversion was expressed as
under-
23. The question which now remains to be considered in
Forasol’s appeal is the date to be selected by the Court for
converting into Indian Rupees the French Franc part of
the said award in respect of which no rate of exchange has
been fixed either by the said contract or the said award.
(emphasis supplied)
24. This Court recognized the principle that a determination of
relevant date for conversion of currency would first take place in
accordance with the contractual provision and thereafter, if such explicit
determination is not available, then the court would have to determine
the best possible date.
25. Further this court recognized the discretion of the Court to
select the relevant dates and pointed out some of them in the following
manner-
24. In an action to recover an amount payable in a foreign
currency, five dates compete for selection by the Court as
the proper date for fixing the rate of exchange at which the
foreign currency amount has to be converted into the
currency of the country in which the action has been
commenced and decided. These dates are:
(1) the date when the amount became due and
payable;
(2) the date of the commencement of the action;
(3) the date of the decree;
(4) the date when the Court orders execution to issue; and
(5) the date when the decretal amount is paid or realised.
25. In a case where a decree has been passed by the Court in
terms of an award made in a foreign currency a sixth date also
enters, the competition, namely, the date of the award. The case
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.] AND ANR. [N. V. RAMANA, J.]
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before us is one in which a decree in terms of such an award has
been passed by the Court.
(emphasis supplied)
26. Ultimately this Court on an extensive analysis came to a
conclusion in the following manner-
70. It would be convenient if we now set out the practice, which
according to us, ought to be followed in suits in which a sum of
money expressed in a foreign currency can legitimately be claimed
by the plaintiff and decreed by the court. It is unnecessary for us
to categorize the cases in which such a claim can be made and
decreed. They have been sufficiently indicated in the English
decisions referred to by us above. Such instances can, however,
never, be exhausted because the law cannot afford to be static
but must constantly develop and progress as the society to which
it applies, changes its complexion and old ideologies and concepts
are discarded and replaced by new. Suffice it to say that the case
with which we are concerned was one which fell in this category.
In such a suit, the plaintiff, who has not received the amount due
to him in a foreign currency, and, therefore, desires to seek the
assistance of the court to recover that amount, has two courses
open to him. He can either claim the amount due to him in Indian
currency or in the foreign currency in which it was payable. If he
chooses the first alternative, he can only sue for that amount as
converted into Indian rupees and his prayer in the plaint
can only
be for a sum in Indian currency. For this purpose, the plaintiff
would have to convert the foreign currency amount due to him
into Indian rupees. He can do so either at the rate of exchange
prevailing on the date when the amount became payable for he
was entitled to receive the amount on that date or, at his option, at
the rate of exchange prevailing on the date of the filing of the suit
because that is the date on which he is seeking the assistance of
the court for recovering the amount due to him. In either event,
the valuation of the suit for the purposes of court fees and the
pecuniary limit of the jurisdiction of the court will be the amount in
Indian currency claimed in the suit. The plaintiff may, however,
choose the second course open to him and claim in foreign
currency the amount due to him. In such a suit, the proper prayer
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for the plaintiff to make in his plaint would be for a decree that the
defendant do pay to him the foreign currency sum claimed in the
plaint subject to the permission of the concerned authorities under
the Foreign Exchange Regulation Act, 1973, being granted and
that in the event of the foreign exchange authorities not granting
the requisite permission or the defendant not wanting to make
payment in foreign currency even though such permission has
been granted or the defendant not making payment in foreign
currency or in Indian rupees, whether such permission has been
granted or not, the defendant do pay to the plaintiff the rupee
equivalent of the foreign currency sum claimed at the rate of
exchange prevailing on the date of the judgment. For the purposes
of court fees and jurisdiction the plaintiff should, however, value
his claim in the suit by converting the foreign currency sum claimed
by him into Indian rupees at the rate of exchange prevailing on
the date of the filing of the suit or the date nearest or most nearly
preceding such date, stating in his plaint what such rate of
exchange is. He should further give an undertaking in the plaint
that he would make good the deficiency in the court-fees, if any,
if at the date of the judgment, at the rate of exchange then
prevailing, the rupee equivalent of the foreign currency sum
decreed is higher than that mentioned in the plaint for the purposes
of court-fees and jurisdiction. At the hearing of such a
suit, before
passing the decree, the court should call upon the plaintiff to prove
the rate of exchange prevailing on the date of the judgment or on
the date nearest or most nearly preceding the date of the judgment.
If necessary, after delivering judgment on all other issues, the
court may stand over the rest of the judgment and the passing of
the decree and adjourn the matter to enable the plaintiff to prove
such rate of exchange. The decree to be passed by the court
should be one which orders the defendant to pay to the plaintiff
the foreign currency sum adjudged by the court subject to the
requisite permission of the concerned authorities under the Foreign
Exchange Regulation Act, 1973, being granted, and in the event
of the foreign exchange authorities not granting the requisite
permission or the defendant not wanting to make payment in
foreign currency even though such permission has been granted
or the defendant not making payment in foreign currency or in
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.) AND ANR. [N. V. RAMANA, J.]
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Indian rupees, whether such permission has been granted or not,
the equivalent of such foreign currency sum converted into Indian
rupees at the rate of exchange proved before the court as aforesaid.
In the event of the decree being challenged in appeal or other
proceedings and such appeal or other proceedings being decided
in whole or in part in favour of the plaintiff, the appellate court or
the court hearing the application in the other proceedings
challenging the decree should follow the same procedure as the
trial court for the purpose of ascertaining the rate of exchange
prevailing on the date of its appellate decree or of its order on
such application or on the date nearest or most nearly preceding
the date of such decree or order. If such rate of exchange is
different from the rate in the decree which has been challenged,
the court should make the necessary modification with respect to
the rate of exchange by its appellate decree or final order. In all
such cases, execution can only issue for the rupee equivalent
specified in the decree, appellate decree or final order, as the
case may be. These questions, of course, would not arise if pending
appeal or other proceedings adopted by the defendant the decree
has been executed or the money thereunder received by the
plaintiff.
27. In the light of the ratio laid down by this court in determining
the relevant date for conversion of currency,the first procedure to be
adopted by the court is to decide the same in accordance with terms of
the contract, if such a clause is not available in the agreement then the
courts have to determine the best possible date, then this court went
ahead and dealt with the procedure to be adopted. But in the present
facts that exercise is not relevant as there is a specific clause in the
agreement i.e clause 17 which deals with rate of interest. The clause
clearly says that currency should be converted into rupees at the bank
buying rate of exchange at Mumbai on the date of relevant shipment. A
close look at the relevant order dt. 12.10.2006 also discloses that the
district forum has granted interest on the amount from 24.7.2002 which
can be construed that theDistrictForum though has not mentioned about
clause 17 of the agreement but taking in to consideration the very same
clause has given interest from that day. The interpretation given by District
Forum as well as the State Commission to the order dt. 12.10.2006 is
contrary to the terms of the agreement and amounts to drawing a new
decree which is not permissible.
A
B
C
D
E
F
G
H
435
28. We are unable to agree with the contentions of the learned
counsel for the appellant that the NCDRC has gone beyond the decree
and the NCDRC ought not to have gone into clause 17 are meritless
hence rejected. In a case of this nature the only remedy available to the
court is either to look at the terms of the contract or in the absence of
the same to follow the procedure laid down by this court in the above
stated judgment. The order passed by NCDRC is strictly in accordance
with the settled legal position and we do not find any infirmity with the
order.
29. In conclusion, reading the judgment as a whole, without
undertaking a piece meal approach as suggested by the appellant herein,
interpreting the decree in a manner which may amount to substitution of
a new decree is not countenanced under law. Therefore, it is clear that
as per the insurance contract, the respondent insurer was required to
pay the insurance claim in accordance with the conversion rate of the
invoiced foreign currency in Indian rupee as per the bank buying rate of
interest at Mumbai on the date of subject shipment for which the invoice
was issued. We are apprised of the fact that the respondent-judgment
debtor has paid an amount of Rs. 11,23,906/- to the petitioner during the
pendency of execution proceedings. The aforesaid payment was
calculated on the basis of conversion rate applicable at the time of
shipment of invoiced value and the interest awarded by the consumer
forum. In
view of the same the respondent has complied with the order
of the forum by paying full and final amount in terms of the order.
30. Hence, we find no grounds to interfere with the order of the
NCDRC which is based on sound principles of law.Accordingly, this
appeal is dismissed.
Kalpana K. Tripathy                                                                            Appeal dismissed.
MEENAKSHI SAXENA & ANR. v. ECGC LTD. (FORMERLY
KNOWN AS E.C.G.C.I LTD.] AND ANR. [N. V. RAMANA, J.]