1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.774 OF 2008 IN EXECUTION APPLICATION NO.124 OF 2008 IN AWARD DATED :13/02 / 2 0 0 7 Mahesh Advanie ...Claimant /Plaintiff Vs. Paresh Choudhary ...Respondents Mr. Hakim Salim for Claimant /Plaintiff Ms. S.R. Tiwari with F.S. Irani for Respondents CORAM: SMT.ROSHAN DALVI, J. DATED: 24 TH JUNE, 2008 P.C. 1. The Plaintiff/Claimant filed a Suit in this Court for recovery of certain amounts of commercial transactions between the Plaintiff/Claimant and the Respondents herein being Suit No.2312 of 2004 and Suit No.1983 of 2004. The parties were represented by their respective Advocates in those suits. The claimants were represented by Mr. P.H.Mehta and Mr. M.P.Bhat . The parties agreed to refer the dispute to Arbitration on 25 th August, 2005 under the Consent Terms signed by them as well as their Advocates. 2 2. The Arbitration was before the Retired Justice Palkar. The parties appeared before Justice Palkar pursuant to preliminary meeting on 16 th February, 2005. These are admitted facts. 3. It is contended by the Respondent that on 16th February, 2005 his Advocate appeared before the Arbitrator and informed him, that the Arbitrator will go through the papers and thereafter, fix a date of hearing. The Respondent was never informed of the date of hearing and an Ex-parte award came to be passed. The Respondent only came to know about the Award passed, when he was served a Warrant of Attachment on 7 th May, 2008. All these facts have been refuted by the Plaintiff/Claimant. 4. The Plaintiff/Claimant has produced the minutes of the Preliminary Meeting, admittedly held before the Arbitrator on 16 th February, 2005. The minutes show that the Respondent appeared in person. He was not represented by his Advocate as claimed. The minutes show detailed directions passed for filing the claim statement, written statement with the counter claim and rejoinder if any. The minutes, therefore, show that the parties were requested to consider the possibility of amicable settlement. Directions were also passed for deposit of the fees of the Arbitrator. The next date 3 of hearing was fixed on 17 th April, 2006 at 4.00 p.m and the claimant was directed to arrange for the venue. This shows that on the date of the first and preliminary meeting held before the Arbitrator, nothing transpired as stated by the Respondent. 5. I am told that the Respondent never paid the Arbitrator's fees and admittedly never attended any meetings before the Arbitrator. An Ex-parte Award was passed on 13 th February, 2007. 6. It is his case, that he was never served with this Award and that he came to know of the Award only when the Warrant of Attachment was served upon him. The Claimant has produced xerox copy of the receipts of the courier showing them to have been sent by Justice Palkar to the Claimant, as well as the Respondent on 20 th April, 2007. The Respondent claims that it is not signed by him. 7. It is seen that the parties were represented through Advocates in the Suit. The parties agreed to refer the matter to arbitration. The parties admittedly attended a preliminary meeting. Thereafter, the Respondent never carried out the directions passed on the date when he himself attended. 4 8. The Respondents' contention that he was misled into going for Arbitration, cannot be accepted because he was then represented by two Advocates. The Respondent's contention, that his Advocate appeared at the preliminary hearing and thereafter never informed him, is seen to be false. 9. The Respondent requires the Court to go behind the Award, which this Court cannot do, being the Executing Court. Nevertheless, in the interest of justice, the main contention of the Respondent on merits, with regard to the Plaintiff's claim in the Suit is seen. 10. It is the Respondent's case that he made various advance payments with regard to the transactions in the Suit. Those advance payments are reflected in his Ledger account maintained by the Respondent himself. The account is for the period between 1st April, 2001 and 31 st March, 2002. The Respondent was directed to produce his bank account reflecting those debit entries under those cheques in favour of the claimants /Plaintiffs in the suit. The Respondent has, produced his bank account statement. The statement does reflect the debit entries in the name of the Claimants /Plaintiffs. The Claimant contends that those were the part payments for which credit has been given to 5 the Respondent, and the suit was filed with regard to the unpaid amount. The claimant has produced his books of accounts showing the Respondent's account in the Claimant's books. The debit entries shown in the Respondent's bank statement and the ledger accounts are reflected as credit entries in the Claimant's ledger account. Hence, it is an admitted position, that those payments are indeed made Credit to that extent, as also been given for the balance amount. The suits were filed and the Arbitration was to proceed. The Respondent has not shown any payment for that balance amount. Ofcourse, it is not for this Court to go into that aspect. It is only because a claim was made that various advance payments were made, that the Court, to satisfy its conscience, undertook that exercise. It is seen that the Respondent has mischievously relied upon the earlier part payments made in a bid to show that the claim in the Suit and in the Arbitration proceedings as incorrectly made. 11. It was for the Respondent to show these facts in his written statement and counter claim as directed by the Arbitrator when he was personally present in the preliminary hearing. The Respondent failed to show that. The Respondent cannot make capital of his own default. The Ex-parte Award came to passed. The Executing Court 6 cannot go behind it. 12. No case is made out for staying the Execution proceeding in the Execution Application No.124 of 2008. 13. Ad-interim reliefs refused. 14. The Claimant shall file their affidavit in reply, if any, in the Chamber Summons. 15. The Chamber Summons is adjourned to 5th August, 2008. (SMT. ROSHAN DALVI, J.)