IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 20233 of 2008(H) ----------------------------------------- PETITIONER: ---------------------- M/S. MOBIL LB GLUE WORLD, REPRESENTED BY THE MANAGING PARTNER SHAMUN.K.P., AGED 39, SON OF IMBICHI KOYA KP, T.C.NO.38/2708 SRIRAM BUILDINGS, KILLIPALAM, TRIVANDRUM. BY ADV. SRI.C.KHALID RESPONDENTS: ------------------------ 1. M/S.DOW COMING INDIA PVT.LTD., REPRESENTED BY THE MANAGING DIRECTOR, RAJ.S.KAPOOR, WOCKHARDT TOWERS, EAST WING LEVEL 2 BANDRA KURIA COMPLED, BANDRA (E), MUMBAI – 400 051. 2. SRI. RAJ. S.KAPOOR, AGED ABOUT 58 YEARS WHOSE FATHER'S NAME IS NOT KNOWN, MANAIGNG DIRECTOR, DOW COMING INDIA PVT.LTD., WOCKHARDT TOWERS, EAST WING LEVEL 2 BANDRA KURIA COMPLEX, BANDRA (E), MUMBAI – 400 051. 3. INDIAN OVERSEAS BANK, REPRESENTED BY MR.GIRIJA SHANKAR, CHIEF MANAGER, POWER HOUSE ROAD BRANCH, TRIVANDRUM – 695 036. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 20233 OF 2008 ............................................ DATED THIS THE 4th DAY OF JULY, 2008 JUDGMENT Petitioner filed O.P. (Arbitration )141 of 2008 before District Court,Thiruvananthapuram. In that Arbitration OP, he filed I.A.2899 of 2006 for an order of temporary injunction restraining encashing of the bank draft furnished by the petitioner to first respondent. Learned District Judge did not grant an order without notice and instead, issued notice. This petition is filed under Article 227 of Constitution of India to quash that order and to pass an order directing third respondent Bank from realising the amount by encashing the bank guarantee. 2. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that bank guarantee was furnished at the time of the transaction entered into by the petitioner with first respondent under Ext.P3 agreement and accounts are not settled and without settlement of accounts, first respondent is not entitled to encash the amount and as there is an arbitration clause, the dispute between the petitioner and first respondent is to be settled by arbitration. Learned counsel WP(C) 20233/2008 2 argued that as per Ext.P5 statement of account maintained by the petitioner, total liability is only Rs.5,17,432.20 and in such circumstances, first respondent is not entitled to encash the bank guarantee, to the extent of Rs.17,75,136/-. Learned counsel argued that if the bank guarantee is encashed, the very purpose of arbitration will be lost and the entire business of petitioner will be ruined and learned District Judge did not consider this aspect, while issuing notice without passing an order in favour of the petitioner. 3. The question whether petitioner is entitled to an order of injunction as sought for under Ext.P7 petition(I.A.2899 of 2008) is a matter to be decided by the learned District Judge. When after hearing the petitioner, learned District Judge was not satisfied with the case of the petitioner and granted an order without notice to respondent, it is not for this court to interfere with that order and grant an interim order as sought for by the petitioner. If the case of the petitioner is that learned District Judge did not follow the case argued, or did not appreciate the case in the proper perspective, petitioner is at liberty to file an application, either to review that order or to advance the hearing of the case, so that appropriate order could be obtained from the WP(C) 20233/2008 3 District Judge. Petitioner cannot be granted an interim order as sought for. If a petition is filed by the petitioner, learned District Judge has to consider the same and pass appropriate order in accordance with law. To enable the petitioner to move the District Judge, it is directed that third respondent shall not permit encashment of the bank guarantee for five days from today to the extent of Rs.17,75,137/-. M.SASIDHARAN NAMBIAR, JUDGE lgk/-