ORDER

Feeling aggrieved and dissatisfied with the impugned order, this miscellaneous petition filed under Article 227 of the Constitution of India seeking a prayer to set aside the order dated 04.09.2023 (Annexure P-5) passed by the Court of Principal District Judge, Burhanpur in Execution Arbitration No.Ex AB 62/2018.

2. The Brief facts of this case revealed from the records are that the respondent-Bank had initiated arbitration proceedings against the petitioner for recovery of overdue loan amount borrowed by him. The claim made by the respondent-Bank was allowed by the Arbitrator and award was passed in favour of the respondent-Bank on 31.03.2017 holding that respondent-Bank is entitled to recover a sum of Rs.2,03,600/- with cost of Rs.500/-and the said award had attained finality.

3. The respondent-Bank thereafterwords had filed execution petition under Order 21 Rule 11(2) of CPC and Section 36 of the Arbitration and Conciliation Act, 1996 in Ex-AB-62/2018 before the Court of Principal District Judge, Burhanpur claiming award amount with interest at the rate of 18% per annum till the date of presentation of the application, which totally amount of Rs.2,66,439/- and seeking appropriate relief under Order 21 Rule 41(2) of CPC for attachment of movables annexed to the petition.

4. The petitioner filed an objection under Section 47 of CPC and Order 21 Rule 58 of CPC and Section 35 of the Indian Stamp Act, 1899 read with Schedule 1A-12 against the recovery of the award amount dated 31.03.2017.

5. The facts, in issue, are as under that petitioner had availed finance a tractor of Eicher Company from the respondent-bank in the year 2015-16 and paid 6 monthly instalments and due to non-payment of one full instalment, the respondent-Bank seized and confiscated the tractor. Further stated that respondent-bank unilaterally appointed Arbitrator and he has passed unilateral award on 31.03.2017 and the recovery is being sought.

6. The petitioner presents the following objections against recovery of the award dated 31.03.2017 :-

(i) that, since the award dated 31.03.2017 was not passed by the Arbitrator appointed by the Hon’ble Court, the same is not eligible for recovery in the present case.

(ii) that, the award is not ‘adequately stamped’ as per the Indian Stamp Act Schedule-I-A, Article 12.

(iii) that, as per the Arbitration and Conciliation Act, 1996, the Arbitrator did not give any declaration that he was not an interested party, the Arbitrator is an interested party and his entire remuneration has been paid by the applicant and thus, the award dated 31.03.2017 is void and awarded amount cannot be recovered.

(iv) that, the award dated 31.03.2017 passed by the Arbitrator without hearing the applicant.

(v) that, as per Section 12(5) of the Arbitration and Conciliation Act, 1996, the award passed by the Arbitrator appointed by the applicant is void.

(vi) that, since applicant belongs to ST community (Gond Caste), no attachment proceedings can be taken against him.

The land and house cannot be attached as per the provisions of Section 165 of the MP Land Revenue Code, 1956.”

7. In the light of the above objections, he prays that the execution proceedings initiated by the respondent-bank in Ex-AB-62/2018 may be rejected as it is not maintainable.

8. The learned counsel for the petitioner submits that the Managing Director of respondent-Bank became ‘ineligible’ to appoint Arbitrator and he could not nominate the sole Arbitrator unilaterally without consent of petitioner. Further would submit that the award passed by the Arbitrator is ‘ineligible’ under amended Act of the Arbitration and Conciliation Act and further would submit that when the respondent-Bank sought to be enforcement of the award dated 31.03.2017 by filing the execution petition, the same is not adequately stamped as per the Indian Stamped Act read with Schedule 1-A, Article12 and furthe