The main legal point established in the judgment is that objections raised in bad faith to delay execution proceedings can result in costs being imposed on the objecting party.

VIBHU BAKHRU, J

EA(OS) Nos.23-30/2016

1. The Decree Holder (hereafter ‘the DH’) has filed the above captioned execution petition (EX.P. 408/2015) under Section 36 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act') for enforcement of an arbitral award (hereafter ‘the consent award’) made by the Sole Arbitrator, Mr Ciccu Mukhopadhaya, Senior Advocate on 04.02.2013.

2. These applications have been filed by the Judgment Debtors (hereafter 'JDs'), inter alia, praying that the above captioned execution proceedings initiated by the DH be dismissed. EA(OS) 23/2016 is filed by JD No. 15; EA(OS) 24/2016 is filed by JD No. 5; EA(OS) 25/2016 is filed by JD No. 2; EA(OS) 26/2016 is filed by JD No. 3; EA(OS) 27/2016 is filed by JD No. 4; EA(OS) 28/2016 is filed by JD No. 6; EA(OS) 29/2016 is filed by JD No. 7 to 14 & 16; and EA(OS) 30/2016 is filed by JD No. 1.

3. All the applications are more or less similarly worded and most of the grounds urged in the applications are also similar except, in EA(OS) 30/2016 filed by JD No. 1 it is also urged that the DH has abandoned its claim against JD No.1. Since most of the issues urged are similar, all the applications were heard together.

4. All the JDs have objected to the enforcement of the consent award principally on the following grounds:-

(1) That the arbitration was invoked pursuant to a notice dated 07.11.2012 which was (a) not issued by DH; (b) issued only to JD Nos. 1 to 6; (c) and, was pursuant to clause 21.7.2 of the CCPS Subscription and Investor Rights Agreement (hereafter 'CCPS Agreement') which provided for constitution of the Arbitral Tribunal of three Arbitrators and there was no agreement to amend the arbitration clause.

(2) That there was no arbitral award in favour of the DH as the consent award is in favour of India Venture Advisors Pvt Ltd. (hereafter 'IVAPL'); it is contended that IVAPL is a stranger to the CCPS Agreement.

(3) That in terms of the CCPS Agreement, the DH had the right to sell the equity shares of JD No.1 Company, which at the time of the first default was Rs.97.20 per share and had fallen to Rs.12.50 per share thereafter. It is contended that the DH had the obligation to mitigate the loss suffered by it and by not selling the shares at the time of the first default, it had failed to do so; therefore, the present execution petition is required to be dismissed.

5. Mr Airi, learned Senior Advocate appearing for JD Nos. 7 to 16 initially contended that JD Nos.7 to 16 were not the signatories to the CCPS Agreement and, therefore, were not bound by any arbitration clause or the consent award. However, he subsequently sought to retract from the aforesaid submission and contended that JD Nos.7 to 16 were not parties to the consent award sought to be enforced. In addition, he earnestly contended that the consent award was not in favour of DH and, therefore, there was no arbitral award that could be enforced by the DH. He founded the aforesaid contention on the basis that the cause title of the consent award described the claimant as IVAPL whereas the DH in the present petition is ‘IL & FS Trust Company Ltd’.

6. Mr Kapur, learned Senior Advocate appearing for JD Nos.1 to 6 also contended that there was no arbitral award in favour of the DH and, therefore, the present petition was liable to be dismissed. He further contended that the DH had given up its claims against JD No.1 as the consent award was only against the other JDs. He submitted that in terms of the consent award, shares of JD No.1 held by DH were to be purchased and since JD No.1 could not purchase its own shares, the consent award was only against JDs other than JD No.1. He further contended that JD Nos. 3 to 6 did not reside within the National Capital Territory of Delhi and, therefore, the present petition against said JDs was not maintainable.

7. Mr Sandeep Sethi, learned Senior Advocate appearing for the DH countered the submissions made by Mr Airi and Mr Kapur. He referred to the terms