IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 FAO.No. 153 of 2009() --------------------- AGAINST THE ORDER IN IA 517/2009 IN OS.59/2009 of SUB COURT,KOTTARAKKARA .................... APPELLANT/RESPONDENT/DEFENDANT(S): ------------------------------------------------------------- JAMES VARHGES,S/O. VARGHESE, KAKKANATTUPARAMBIL, KAIAMPOOR, ENANALLOOR VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DIST. BY ADV. SRI.K.J.JOSEMON SRI.MATHEW SKARIA RESPONDENT(S)/PETITIONER/PLAINTIFF: --------------------------------------------------------- STATE OF KERALA, REP. BY THE SUPERINTENDENT ENGINEER, K.I.P. (RB) CIRCLE, KOTTARAKKARA. GOVERNMENT PLEADER SRI. R. LAKSHMI NARAYAN. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 153 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2009. JUDGMENT Bhavadasan, J, This appeal is filed against the order in I.A. 517 of 2009 in O.S. 59 of 2009 restraining the appellant from withdrawing the amount deposited by the State Government in E.P. 31 of 2005 in O.P. (Arb) 1 of 1997 on the file of the District Court, Thiruvananthapurm until the disposal of the suit. 2. It is pointed out by the appellant that in view of the arbitration clause contained in the agreement between the parties, the court has no jurisdiction to entertain and try the suit. The appellant claims to have approached this court for appointment of an arbitrator and a sole arbitrator was appointed. Arbitration proceedings were commenced as per ARB.1/1997. The order appointing the arbitrator was challenged before the Supreme Court, but that was dismissed F.A.O. 153/2009. 2 on 13.3.2002. Thereafter, the arbitration proceedings culminated in an award on 28.1.2005. That award has become final. A challenge to that award before the District Court, Thiruvananthapuram did not succeed. Then Arbitration Appeal 2 of 2009 was filed before this court. According to the appellant, that is not maintainable. Whatever that be, the appellant says that the amount deposited in execution proceedings, namely, E.P.31 of 2005 lying in deposit may be allowed to be withdrawn by him on furnishing bank guarantee. 2. Learned Government Pleader opposed the prayer and pointed out that there is a vigilance enquiry pending against the appellant and also that the amount may not be allowed to be withdrawn. 3. It is not disputed that the award has become final. It is also not in dispute that in execution proceedings a sum of Rs.75,00,000/-has been deposited. There is no reason as to why the appellant should not be allowed to withdraw the said amount on F.A.O. 153/2009. 3 furnishing unconditional bank guarantee as the amount lying in court deposit benefits none. This appeal is allowed and the appellant is allowed to withdraw the amount lying in deposit in relation to E.P.31 of 2005 in O.P(Arb) 1 of 1997 on condition that he furnishes unconditional bank guarantee to the satisfaction of the court below for the said amount. P.R. Raman, Judge P. Bhavadasan, Judge sb.