Dr S C Jain v. Sahny Securities Pvt Ltd

RAJIV SAHAI ENDLAW, J. JULY 06, 2018 "bs" (corrected & released on 8th November, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th July, 2018. + DR. S.C. JAIN .... Appellant Through: Mr. Amit Prabhat Deshpande and Mr. Amit Jain, Advs. Versus SAHNY SECURITIES PVT. LTD. …...Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CMs No.26129/2018 & 26130/2018 (both for exemptions) 1. Allowed, subject to just exceptions. 2. The applications are disposed of. EX.S.A. 1/2018 & CM No.26128/2018 (for stay) 3. This Execution Second Appeal, filed invoking Section 100 read with Section 103 read with Order XLII of the Code of Civil Procedure, 1908 (CPC), impugns the judgment/order [dated 14th May, 2018 in RCA No.233/2017 of the Court of Additional District Judge-12, Tis Hazari Courts] of dismissal of First Appeal under Order XXI Rule 58(4) of the CPC preferred by the appellant against the judgment/order [dated 4th September, 2017 in CS No.95136/2016 of the Court of Additional Senior Civil Judge (Central)] of dismissal of objections filed by the appellant to the execution sought by the respondent of arbitral award dated 4th March, 2003. 4. The counsel for the appellant has been heard and the copies of the relevant records annexed to the memorandum of this appeal perused. 5. Vide ex-parte arbitral award dated 4th March, 2003, the respondent was held entitled to a sum of Rs.2,24,926.59 paise together with interest @ 9% per annum from the date of filing the statement of claim i.e. 29th May, 2001, from the appellant. The challenge thereto by the appellant by filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996 was dismissed as time barred on 19th September, 2012 and the appeal being FAO No.481/2012 preferred thereagainst was also dismissed on 9th July, 2014. 6. On the appellant still failing to comply with the arbitral award, the respondent filed for execution thereof as a decree of the Court. 7. The appellant filed objections in the execution, pleading (i) that the arbitral award was a nullity and non-est; (ii) that the Arbitrator lacked jurisdiction; (iii) that the appointment of the Arbitrator was not in terms of Bye-laws 270(a), (b) & (c) and 271 of the Bye-Laws of the Delhi Stock Exchange (DSE) in respect of appointment of Arbitrators; (iv) that the appellant had sent a letter dated 7th October, 2002 objecting to the appointment of the Arbitrator, as also noticed in the ex-parte arbitral award; (v) that the Arbitrator however still proceeded with the matter in derogation of the Bye-laws and of Section 34(2)(a)(v) read with Explanation (i) to Section 34(2) of the Arbitration Act; (vi) that in accordance with the Bye- laws, the arbitration was to be of an Arbitral Tribunal comprising three arbitrators; (vii) that the arbitral proceedings were thus not consensual; (viii) that vide Section 25(c) of the Arbitration Act, the Arbitrator is not permitted to proceed ex-parte in the matter; and, (ix) that there has been a violation of the principles of natural justice; no proper notice/opportunity of the dates of hearing was served by the Arbitrator on the appellant. 8. The aforesaid objections to execution were dismissed vide order dated 4th September, 2017, finding/observing/reasoning (a) that vide order in FAO No.481/2012, execution of the arbitral award was stayed subject to the appellant/objector depositing Rs.2,25,000/- in the form of Fixed Deposit Receipt (FDR) with the Registrar General of the High Court; the High Court, while dismissing the said appeal directed that the FDR deposited with the Court be released in favour of the respondent/decree holder along with accrued interest and the respondent/decree holder withdrew the entire amount including interest, without any protest; (b) that it was the contention of the counsel for the appellant/objector that the respondent/decree holder having so received the amount, is not entitled to execute the arbitral award for balance amount due thereon; (c) that there was no merit in the said contention, as it was nowhere r