The main legal point established in the judgment is that the court may dispense with the requirement of notice under Order 21, Rule 22 if the judgment debtor has been given an opportunity to show cause, and that the court's jurisdiction to entertain an execution application is determined by the provisions of the Arbitration and Conciliation Act, 1996.

K.R. SHRIRAM, J.

Chamber Summons No. 1132 of 2014

1. Mr. Sen, senior counsel, on instructions states that liberty be given to withdraw this chamber summons with leave to take out fresh proceedings as advised against Bombay Stock Exchange.

2. Chamber summons dismissed as withdrawn with liberty as sought.

Execution Application No. 156 of 2015

3. At the outset, counsel for respondent no.1 submitted that notice under Order 21, Rule 22 of the Civil Code Procedure, 1908 has not been issued and therefore, the court should not hear the matter today. Mr. Sen, senior counsel appearing for applicant/decree holder submitted that under Order 21, Rule 22 Sub Rule 2, the court has power to issue process of execution of a decree without issuing notice thereby prescribed, if, for reasons to be recorded, court considers that the issuance of such notice would cause unreasonable delay or would defeat the ends of justice. Mr. Sen submitted that judgment debtor has not only entered appearance through an Advocate and participating in these proceedings, but has also filed affidavit in reply to two chamber summons that were taken out by applicant. Mr. Sen submitted that judgment debtor is taking a hyper technical objection and the court should, therefore, dispense with issuance of notice.

4. Mr. Kedia submitted, relying upon the judgment of the Calcutta High Court in the matter of Gurudas Biswas v. Bhowanipore Zamindary Co. Ltd., AIR 1921 Calcutta 609, that issuance of notice is mandatory and the court cannot dispense with the notice. Per contra, Mr. Sen relied upon another judgment of Calcutta High Court in the matter of Chandra Nath Bagchi v. Nabadwip Chandra Dutt and Ors., AIR 1931 Calcutta 476 to submit that it was open to the court to dispense with notice. Mr. Sen submitted that Order 21, Rule 22 only requires that an opportunity should be given to the judgment debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed. Mr. Sen submitted that in this case, judgment debtor having entered appearance and participated and having filed affidavit in reply to two chamber summons that were taken out by applicant has got an opportunity to show cause why the execution should not proceed. Mr. Sen submitted that therefore, the court should dispense with issuance of notice. Moreover, Mr. Sen submitted that the Award is dated 11th September, 2004. Almost 13 years have passed and these are nothing but attempts to delay execution. Mr. Sen also submitted that the execution application was not filed earlier because the directors of respondents, against whom also the Award was passed, had filed petition under Section 34 of the Arbitration and Conciliation Act, 1996 (the said Act) in this court, which was allowed and later carried in appeal to Division Bench by applicant. Mr. Sen submitted that therefore, it took so many years and if a formal notice has to be issued, it would unreasonably delay and defeat the ends of justice.

5. In response, Mr. Kedia also submitted that even for this court to dispense with issuance of notice, the court should have jurisdiction and according to Mr. Kedia this court has no jurisdiction because respondent/judgment debtor is presently carrying on business at Taloja and all the assets are also in Taloja. Mr. Kedia submitted that this court, therefore, has no jurisdiction.

6. I have considered both the judgments of Calcutta High Court. Gurudas Biswas (Supra) on facts is different from the present case. In that case, judgment debtor had not entered appearance or participated or filed any affidavit in the proceedings. In the case of Chandra Nath Bagchi (Supra) the court has held that if the judgment debtor had an opportunity to show cause and has participated in the proceedings, it will be unreasonable to direct issuance of notice, merely on technicality. I respectfully concur with this view. It will be useful to reproduce the following portion from the said judgment :

The