S. RAVINDRA BHAT, J.

1. The appellant is aggrieved by a judgment dated 10.01.2017 of a learned Single Judge rejecting his objection to the maintainability of execution proceedings filed by the Respondent, Tata Capital Financial Services Limited (hereinafter, also referred to as “Tata Capital”) for the enforcement of an arbitral award.

2. The facts of the case briefly, that Tata Capital sanctioned a term loan to Lilliput Kidswear Ltd. (“Lilliput”, together with Mr. Narula referred to as the “Appellants”) for a tenure of 48 months together with interest and other terms set out in the sanction letter dated 28th July 2011. Sanjeev Narula was a Director of Lilliput at the relevant time. He acted as guarantor and signed a deed of personal guarantee on 28th July 2011 in his personal capacity to secure the loan. The guarantee was furnished in favour of Tata Capital, irrevocably, unconditionally and personally, guaranteeing repayment of all the amounts due and payable by Lilliput under the term loan agreement. As guarantor, Mr. Narula created equitable mortgage of built-up immovable property admeasuring 586.44 sq yards at 94, Block-D, Okhla Industrial Estate, Phase-1, New Delhi (herein, also referred to as the “described property”) in favour of Tata Capital by depositing the original title deeds. A Memorandum of Entry dated 13th October, 2011 recorded this. Due to non-payment of the outstanding dues, despite repeated reminders, to both Lilliput and Mr. Narula, Tata Capital filed Arbitration Petition No. 782 of 2012 in the High Court of Bombay, under Section 9 of the Arbitration and Conciliation Act, 1996 (“the Act”) against both Lilliput and Mr. Narula.

3. The parties later sought to resolve their disputes on mutually agreed consent terms dated 8th February 2013 in the said proceedings in the Bombay High Court. In the meanwhile, a sole Arbitrator had already been appointed by the parties. The Bombay High Court in Arb. P. No. 782/2012 passed an order dated 8th February 2013 recording that the consent terms had been tendered. They were taken on record and the said petition was disposed of in its terms. On 28th February 2013, the parties appeared before the sole Arbitrator and he passed the following consent Award:

“Heard advocates for parties. Both advocates have informed me that by an order dated February, 2013 in Arbitration Petition No. 782 of 2012 the parties have tendered the consent terms before the Hon'ble High Court. The copy of the said consent terms are tendered today. A copy of the order dated 8th February, 2013 is taken on record along with the copy of the consent terms. The consent terms dated February, 2013 which is sought to be tendered before me has been filed in the aforesaid petition and Hon'ble High Court has disposed of the petition in terms of these consent terms.

As per clause 9 of the consent terms parties have agreed to file these consent terms before me and to pass the consent award in terms on these consent terms. Since, the Hon'ble High Court has accepted these consent terms by order dated February, 2013 these directions mentioned in clause 9 are binding on me. I therefore pass the Consent Award in terms of these consent terms which is tendered today. The parties shall pay Arbitrator's fees for 2 days (4 hours) @20000/- per hour shared equally and reading fees Rs. 50000/- shared equally amounting to Rs. 65000/- each for the Claimant and the Respondent respectively. The payment should be sent on or before 10th March, 2013 to the Sole Arbitrator.”

4. The consent terms recorded parties’ agreement that in the event of failure by Lilliput and Mr. Narula to pay any two installments/EMIs in any financial year and such default remained unremedied after the expiry of 30 days from the date of the notice (given by Tata Capital) to remedy the breach in the event of a second default, then the right, title and interest of the Sanjeev Narula in the described property would stand transferred to the books of Tata Capital,