Execution proceedings require proper pleadings to challenge maintainability; beneficial ownership must be established for enforcement of an arbitral award.

ORDER :

PRAYER: Execution Petition filed under Order XXI Rule 46 of the Code of Civil Procedure, 1908, for execution of the arbitral award.

The decree holder has filed the above execution proceedings to execute an award that they have obtained against the first respondent by attaching the shares of the 1st respondent which, they would contend, are ostensibly registered in the name of the respondents 3 to 7. It is the case of the Decree Holder that the shares are being held by respondents 3 to 7 for and on behalf of the 1st respondent. As a prelude, the orders passed on various hearing dates are culled out briefly.

2. This execution petition has been instituted in the year 2019. On 28.03.2019, the 3rd respondent had sought time to file a detailed counter to the above execution proceedings. At that point in time, the other respondents had not been served. Although the 3rd respondent had undertaken to file a counter in the above execution proceedings, the said counter has not been filed to date and thereafter, the respondents 3 to 7 had started addressing arguments regarding the maintainability of the petition. On 22.03.2021, the senior counsel who had submitted the arguments was reported to be indisposed and therefore the matter was posted to 12.04.2021.

Thereafter, there was a change in the roster.

3. Since the matter had been heard extensively by this Court, on the representation of the parties to the proceedings, the matter was once again listed before this Court as a specially ordered matter by orders of the Acting Chief Justice on 08.05.2023 and the parties had commenced their arguments on 30.08.2023 and orders were reserved by this Court on 18.10.2023. The parties had submitted that they would be filing their written arguments.

4. The 3rd respondent and the 8th respondent had filed their written arguments on 10.11.2023. Respondents 4 to 7 had filed their written arguments on 09.11.2023 and the decree holder had filed their written arguments on 15.11.2023. After orders had been reserved, the 2nd respondent who had never appeared before the Court on any of the earlier dates of hearing had filed a counter into the Registry on 20.10.2023.

5. This Court is now called upon only to decide on the maintainability of the Execution proceedings and arguments have been made only in this regard.

Submissions:

6. Since the oral arguments had been reduced into written arguments, this Court is only extracting the contents of the written arguments submitted by the respective parties.

(i) Respondents 3 and 8:

7. The 3rd and 8th respondents, although they have submitted separate written arguments, have more or less raised the same issues. It is their contention that the execution petition has been filed on the basis that 6.16 % shares in the 2nd respondent Company are held by respondents 3 to 7 beneficially/in trust for the 1st respondent/Judgement Debtor. Therefore, the very execution petition cannot be maintained in the light of the order passed by the Division Bench of this Court in O.S.A.Nos. 220 to 223, 227, 228, 230 to 237 of 2018. These appeals had arisen against the order passed on the various applications in C.S.No.33 of 2018.

8. It is apposite here to mention that the present decree holder is not a party to this suit. It is the contention of the respondents 3 and 8 that in these proceedings the Division bench had held that the beneficial interest could not be decided on account of the following facts:

(a) The money had come from different entities in Dubai.

(b) The Beneficial Interest declared in the financial statement has been prepared in Dubai.

(c) The deconsolidation was done at Dubai between various Dubai based entity as a result of which the beneficial interest ceased to exist.

It is also their further case that this Judgement and Decree has been confirmed by the Hon'ble Supreme Court in Civil Appeal Nos.9786 to 9799 of 2018. That being the case the present execution petition filed for attaching and bringing these shares to sale is also not m