IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No.34489 of 2008 (E) ---------------------------------- ARBITRATION OP.1080/2008 of II ADDL.DISTRICT COURT,ERNAKULAM .................... PETITIONER: --------------- M/S.BHAGHEERATHA ENGINEERING LIMITED, A PUBLIC LIMITED COMPANY HAVING ITS HEAD OFFICE AT BHAGEERATHA RESIDENCY, BANERJEE ROAD, ERNAKULAM, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER, MR.K.CHANDRASEKHARAN. BY ADV. SRI.BOBY MATHEW RESPONDENTS: ------------------ 1. NATIONAL HIGHWAYS AUTHORITY OF INDIA G5 AND G6, SECTOR 10, 'DWARAKA', NEW DELHI - 110 075, REPRESENTED BY ITS CHAIRMAN. 2. STATE BANK OF INDIA, COMMERCIAL BRANCH, ERNAKULAM, EXPRESS HOUSE, KALOOR, KOCHI - 682 017 REPRESENTED BY ITS BRANCH MANAGER. 3. SYNDICATE BANK, PERUMANOOR BRANCH, ERNAKULAM, KOCHI - 682 015 REPRESENTED BY ITS BRANCH MANAGER. 4. UNION BANK OF INDIA, PANAMPILLY NAGAR BRANCH, ERNAKULAM, KOCHI - 682 036 REPRESENTED BY ITS BRANCH MANAGER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34489 of 2008 ------------------------------------------------ Dated this the 21st day of November, 2008 JUDGMENT Heard the counsel for the petitioner. 2. Standing Counsel for National Highways Authorities of India, the first respondent herein enters appearance and opposes this application. Advocate Sri.A.S.P.Kurup appears for the fourth respondent/Bank and submits that the bank will be bound for whatever order is passed in this Writ Petition and that they have no other interest. The grievance of the petitioner is that under Section 9 of the Arbitration and Conciliation Act a petition has been filed before the District Court, Ernakulam for an interim order restraining the respondent from encashing the bank guarantee filing Arbitration O.P. 1080/08, but the said petition was dismissed by the District Court after hearing both sides; that the petitioner W. P. C. No.34489 of 2008 -2- has applied for a carbon copy of the order and they will be getting it probably today or tomorrow and that some breathing time be granted to prefer an arbitration appeal before this Court and obtain appropriate orders and that till then, the first respondent be restrained by an interim order from invoking the bank guarantee furnished by the petitioner/company. Counsel for the first respondent vehemently opposes the request and submits that no arbitration proceedings have been started or initiated till now and that there is only a petition under Section 9 before the District Court for interim orders and it was being convinced that the petitioner is not entitled to an interim order under Section 9 that the Arbitration O.P. was dismissed. Even if it is as submitted by the counsel for the first respondent, the fact remains that the petitioner who is a party to W. P. C. No.34489 of 2008 -3- a litigation cannot be deprived of an opportunity to prefer an appeal refusing him even breathing time. The order was passed by the District Court on 20/11/08. Carbon copy is not yet obtained though applied for. Counsel submits that they will get the copy either today or tomorrow and that immediately they will file the appeal and seek for appropriate orders. 3. In the result, I direct the first respondent not to invoke or encash the bank guarantee furnished by the petitioner/company till 28/11/08. 4. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-