1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1235 OF 2006 IN EXECUTION APPLICATION (L) NO.96 OF 2006 IN AWARD DATED 6TH APRIL 1999 M/s.D.S.& Sons, HUF .. Plaintiff Versus M/s.S.D.Agarwal, HUF & Ors. .. Defendants Mr.Zal Andhyarujina i/b. Little & Co. for plaintiff Mr.H.B.Khokhawala i/b. Nankani & Associates for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st October 2008 P.C. . There is a letter dated 3rd December 2006 addressed to Mr.Suresh Agarwal, by one Mr.B.D.Agarwal, which is annexed as Annexure B to the affidavit in reply filed by the said Mr.Suresh Agarwal (on behalf of respondent No.11). The deponent of the affidavit relies 2 upon this letter and makes a categorical statement that the said B.D.Agarwal has not passed any Award nor purchased any stamp paper in his name for the alleged Award dated 13th April 2005. It is the case of respondent No.11 that there is no Award dated 6th April 1999 nor are there any proceedings resulting in the same of which Respondent No.11 had any knowledge. 2. Mr.Andhyarujina took time to verify this position and at his request the matter was adjourned till today. The chamber summons is to appoint a Commissioner to work out the accounts and make a report to this Court. The application is filed in execution of the purported award. 3. Mr.Andhyarujina has now placed before me the letter dated 7th October 2008 addressed by Mr.B.D.Agarwal who was the purported Arbitrator and he has stated in the said letter, addressed to the Advocates for applicant that he confirms 3 the contents of the letter dated 3rd December 2006. Thus, he denies of any award being made by him. 4. In the light of this communication, which is received by the decree holder’s Advocate, in my view, the proceedings initiated vide execution application Lod.No.96 of 2006 to execute the award are not maintainable. Once there is a serious dispute between the parties about making of the award and about reference to the arbitration itself, then, that cannot be resolved in the execution proceedings. The execution application itself would not lie once there is no proof of making of the award, produced by the parties. On the other hand, the communication from the Arbitrator who was allegedly appointed, concludes the matter. In such circumstances, execution application and chamber summons both do not survive and dismissed as such. 4 5. Needless to state that the applicant is not prevented in law from initiating and instituting such proceedings for recovery of any sums and as and when such proceedings are initiated, the applicant can point out that the time that was spent in the present proceedings be excluded for the purpose of computation of limitation. Equally, the respondents can point out to the contrary. All such aspects can be addressed when the proceedings are instituted and this is not an occasion to do so. All contentions of both sides are expressly kept open. Execution Application and chamber summons are dismissed. Copy of the letter referred above is taken on record and marked "X" for identification. (S.C.Dharmadhikari, J)