KULBUSHAN SINGH NIM Vs. ICICI BANK LTD

JUDGEMENT

(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.