1 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.530 OF 2003 IN CHAMBER SUMMONS NO.1313 OF 2002 IN EXECUTION APPLICATION NO.148 OF 2002 IN ARBITRATION REFERENCE NO.385 OF 2001 Emmel Financial Services. ...Appellant. Vs. 1.Nikko Stock Brokers Pvt.Ltd. and another. ...Respondents. --- Mr.D.D.Madan, Sr.Advocate with Mr.Shailesh Shah i/b. M/s.Thakore Jariwala & Associates,for Appellant. Mr.P.N.Mody with Sagar Divekar i/b. M/s.Wadia Gandhy & Co., for Respondent no.2. Mr.S.U.Kamdar, Sr. Advocate with Mr.Zal Andhyarujina i/b. Mr.G.B.Kedia, for Respondent no.1. Mr.Siraj Rustomji with Ms.P.Gupta i/b. Earnest Legal Associates, for Noticee-SEBI. --- 2 CORAM: D.K.DESHMUKH & R.V.MORE,JJ. DATED: 26th April, 2010 P.C.: 1. This appeal is directed against order dated 12.3.2003 passed by the learned Single Judge of this Court in Chamber summons no.1313 of 2002. The relevant facts are that the appellant has obtained Arbitration Award against Respondent no.1 who was a broker on Respondent no.2 Bombay Stock Exchange in the amount of Rs.2.60 crores. He obtained order for attachment of that amount in the hands of the Stock Exchange. A chamber summons was taken out by the Stock Exchange for lifting the attachment. That chamber summons has been decided by order dated 12.3.2003. The learned Single Judge has granted the chamber summons and has cancelled the warrant of attachment. 2. We have heard the learned Counsel appearing for both the sides. It is apparent from the record that the amount in relation to which the warrant of 3 attachment was issued was the amount held by the Stock Exchange as a security deposit and that amount was not payable to the judgment debtor-Nikko Stock Brokers Pvt.Ltd. Perusal of the provisions of Order 21 Rule 26 and Rule 46A of C.P.C. shows that what can be attached is a debt not secured by negotiable instrument. Perusal of the provisions of Order 21 Rule 46A of C.P.C. makes it clear that the debt must be due to the judgment debtor from the garnishee. In the present case, the garnishee will be Stock exchange and the judgment debtor will be Nikko Stock Brokers Pvt.Ltd. It is clear from the record that the amount of security deposit which the Stock Exchange was holding was not a debt owed by the Stock Exchange to Nikko Stock Brokers Pvt.Ltd. Obviously, therefore, an order for attachment under Order 21 of C.P.C. could not have been issued. In our opinion, no exception can be taken to the order of the learned Single Judge cancelling the warrant of attachment. 3. It appears from the order that it was the case of the appellant relying on the Circular dated 4 9.7.1999 issued by SEBI that under that circular the amount which is payable to a person in whose favour the Award has been made against the broker is to be set apart to be paid to such person after expiry of period of limitation, and therefore, that amount is payable to the appellant. In our opinion, it was not really necessary for the learned Single Judge to go into that aspect of the matter for deciding the chamber summons taken out by the Stock Exchange because, in our opinion, the attachment order could not have been made as the amount in the hands of Stock Exchange was not a debt owed by it to the broker. In our opinion, even if the circular is valid, remedy of the appellant to enforce it, will not be seeking attachment of the amount. In our opinion, as it was unnecessary for the learned Single Judge to decide that point and the finding recorded by the learned Single Judge may come in the way of the appellant pursuing its remedy for enforcing the circular, in our opinion, it will be appropriate to set aside the observations made by the learned Single Judge in relation to the Circular dated 9.7.1999. In 5 our opinion, the following order would meet the ends of justice:- (i) The order of the learned Single Judge granting chamber summons in terms of prayer clause (a) is upheld. However, the observations made by the learned Single Judge in relation to Circular dated 9.7.1999 are set aside. (ii) It is made clear that if in any court the issue as to the enforceability of that circular is raised, it shall be decided on its own merit, without being influenced by the observations of the learned Single Judge in the impugned order. Appeal is disposed of. (D.K.DESHMUKH,J.) (R.V.MORE,J.)