The main legal point established in the judgment is the interpretation of Section 9(3) of the Arbitration and Conciliation Act, 1996 and its applicability once an application under Section 9(1) has been 'entertained' by the court.

ORDER

1. The captioned writ petition is filed by the judgment debtor feeling aggrieved by order dated 22.4.2022 passed by Executing Court thereby attaching the Bank Account of the petitioner to an extent of Rs.97,58,580/-.

2. The respondent-decree holder filed an application under Section 9 of Arbitration and conciliation Act, 1996 (for short "Act, 1996") before the Commercial Court seeking a direction against the present petitioner to pay outstanding rent and maintenance charges amounting to Rs.1,93,41,675/-. The said application was contested by the petitioner herein and the Commercial Court by order dated 4.3.2022 allowed the application.

3. Feeling aggrieved by the said order, the petitioner herein preferred a Commercial Appeal in Commercial Appeal No.140/2022. The Division Bench of this Court declined to entertain the grounds urged in the appeal and consequently, dismissed the appeal and confirmed the order passed by the Commercial Court passed under Section 9 of the Act, 1996. The Division Bench of this Court has also observed in its order that the liability of the petitioner to pay admitted rent in terms of the lease deed dated 10.6.2020 has no nexus or connection whatsoever to the permission granted by the Commercial Court to the present petitioner to deposit 40% of the monthly sums pending adjudication in AA.127/2021.

4. Based on the order of the Commercial Court passed under Section 9 and the order passed in Commercial Appeal, the respondent-decree holder has filed the present execution proceedings. The executing Court on an application filed by the respondent-decree holder has passed the impugned order thereby attaching the account of the petitioner herein.

5. Sri. Srivasta, learned Senior Counsel appearing for the petitioner reiterating the grounds urged in the writ petition would vehemently argue and contend that the impugned order under challenge is passed in gross violation of principles of natural justice. Referring to the provisions of Order XXI Rule 22 of CPC, the learned counsel contended that a show-cause should be issued where an application for execution is levied more than two years after the date of decree. Referring to Order 21 Rule 22 (3) of CPC, he would point out that the show-cause notice has to be issued if the material on record indicated that there is substantial injury sustained by the judgment debtor.

The second limb of argument canvassed by the learned counsel is that, the remedy of the parties lies before the Arbitration Tribunal and therefore, the respondent-decree holder cannot file an execution to recover the amount which is the subject matter of arbitration before the commencement of the arbitral proceedings.

6. After the matter was heard for some time, the learned Senior Counsel for the petitioner sought for short accommodation and at his request, the matter was adjourned and in the interregnum the petitioner sought for amendment to raise additional grounds. By way of proposed amendment, the petitioner has raised additional grounds inter alia contending that there is an amendment to Section 9 of the Act, 1996, wherein two further sub-Sections have been introduced. Referring to this amended sections, it is submitted by the learned counsel that the Executing Court has virtually misinterpreted the provisions of Section 9 prior to amendment which was inapplicable to the present case on hand. He would sum up his arguments by contending that failure to issue notice violates the principal tenet of natural justice.

7. Per contra, the learned counsel appearing for the respondents repelling the contentions canvassed by learned Senior Counsel appearing for the petitioner would however contend that the issue in regard to whether an order passed under Section 9 assumes the status of a decree is dealt by the Apex Court in catena of judgments and the said issue is no more res integra. Placing reliance on the judgment rendered by this Apex Court in the case of State of Karantaka .vs. Vishwabharathi House Build