Kulbushan Singh Nim vs M/S. Icici Bank Ltd.
2014 Latest Caselaw 5154 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Ex.F.A.No.29/2014 and C.M. Nos.16929-30/2014

%                                                    14th October, 2014

KULBUSHAN SINGH NIM                                      ......Appellant
                 Through:                Mr. G.D. Chopra, Advocate.



                          VERSUS

M/S. ICICI BANK LTD.                                         ...... Respondent

                          Through:       Ms. Chetna Bhalla, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This execution first appeal is filed by the judgment

debtor/defendant impugning the order of the executing court dated 4.9.2014

by which the objections were dismissed. Execution petition was filed by the

respondent/plaintiff-bank against the petitioner/defendant, seeking execution

of the judgment and decree dated 10.9.2008 by which the suit of the

respondent/plaintiff filed under Order XXXVII of Code of Civil Procedure,

1908 (CPC) was decreed on account of non filing of appearance by the

appellant/defendant after being served in the Order XXXVII CPC suit.

2. By means of the objections, appellant pleaded two counts to

oppose the execution. Firstly, it is pleaded that since at the time of

appointment of a receiver, by the ex parte order dated 30.5.2008 appointing

a receiver, the court had observed that the respondent-bank will endeavour

to get the disputes settled through arbitration, petitioner/defendant need not

have appeared in the suit and was entitled to wait for arbitration proceedings

and since arbitration proceedings did not take place, the decree could not

have been passed under Order XXXVII CPC although petitioner/defendant

did not file any appearance. The second ground which was urged is that

though value of the vehicle which was sold was for a sum of Rs.1.78 lacs,

the value of the vehicle was actually Rs.5,68,561/-, and on the later value

being taken, the judgment and decree dated 10.9.2008 would be substantially

satisfied as the decree is for a sum of Rs.6,71,621.68/- with pendente lite and

future interest at Rs.12.50% per annum.

3. The first ground which is urged on behalf of the

appellant/defendant/judgment debtor is misconceived because entitlement to

arbitration is only if in the suit the appellant/defendant had filed an

application under Section 8 of the Arbitration & Conciliation Act, 1996 for

referring the matter to arbitration and admittedly such an application was not

filed. Entitlement to seek arbitration thus stood waived on the

appellant/defendant/judgment debtor not filing the application under Section

8 of the Arbitration & Conciliation Act, 1996. Accordingly, at the stage of

execution, no objection can be raised merely because in an interim order

asking appointment of the receiver which was passed on 30.5.2008, the court

had made a prima facie observation that the respondent/plaintiff will get the

disputes resolved through arbitration. After the decree is passed against the

appellant/defendant on account of failing to file the appearance under Order

XXXVII CPC, the decree becomes final, and the same cannot be challenged

on the ground that parties were bound by an arbitration clause.

4. So far as the second ground which is urged on behalf of the

appellant/defendant is concerned, the same is again meritless because the

executing court followed the required procedure of sale by calling for the

valuation report of the vehicle, then fixing the date for auction and thereafter

selling the vehicle as per the due procedure in auction and execution. There

is no law that in auction proceedings the value of the thing sold which must

be the value which the judgment debtor/defendant thinks is the value,

inasmuch as the value received is as per auction procedure. In any case, I do

not see any merit in the contention as regards the value because admittedly

the vehicle was repossessed in the year 2008, and was sold four years later in

the year 2012 in auction, and therefore the value as on the date of taking

possession in the year 2008 could surely not have been the value at the time

of auction in the year 2012. Therefore, there is no merit even in the second

contention raised on behalf of the appellant.

5. In view of the above, there is no merit in the appeal and the

same is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 14, 2014 Ne