IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 21277 of 2009(O) --------------------------------------- PETITIONER(S): --------------------- ROMAN TARMAT LIMITED TARMAT CHAMBERS,SECTOR-24,PLOT-19,TURBHE FLYOVER NAVI MUMBAI- 400 705, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER C.J.GEORGE, GEO TECH CONSTRUCTION COMPANY PVT LTD, KSHB OFFICE COMPLEX, 8TH FLOOR,PANAMPILLY NAGAR,KOCHI 682 036. BY ADV. MR.M.RAMASWAMY PILLAI MR.P.M.JOSEPH RESPONDENT(S): ------------------------ 1. THE PROJECT DIRECTOR KERALA STATE TRANSPORT PROJECT TC 47/1795, 2ND FLOOR, RAJADHANI COMPLEX, KILLIPALAM, KARAMANA PO, THIRUVANANTHAPURAM- 695 002. 2. THE FINANCE CONTROLLER KERALA STATE TRANSPORT PROJECT TC 47/1795, 2ND FLOOR, RAJADHANI COMPLEX, KILLIPALAM, KARAMANA PO, THIRUVANANTHAPURAM- 695 002. 3. SOUTH INDIAN BANK LIMITED REPRESENTED BY ITS CHIEF MANAGER, M.G.ROAD, ERNAKULAM, KOCHI-16 4. STATE BANK OF TRAVANCORE REPRESENTED BY ITS CHIEF MANAGER M.G.ROAD, ERNAKULAM. R3 BY ADV. MR.GEORGE VARGHESE, SC, SIB. R4 BY ADV. MR.K.S. DILIP, SC, SBT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.21277 OF 2009 (O) ----------------------------------- Dated this the 29th day of April, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: (a) to direct to hear and dispose of Arbitration O.P.No.99/2009 only after considering I.A.No.1780/2009 filed therein for amendment of the petition. (b) to issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner, a party to an arbitration proceedings has moved an application under Section 9 of the Arbitration and Conciliation Act, herein after referred to as the 'Act' seeking some interim reliefs in respect of the matter covered by that proceedings. The respondent appeared in that proceedings and resisted the reliefs sought for. The learned District Judge after hearing both sides, has posted the petition for orders. WPC.21277/09 2 Petitioner has moved an amendment to the petition to incorporate some additional statements in the petition and also to seek an additional relief, and if the petition is disposed of without considering the amendment, it would cause miscarriage of justice, is the case advanced for issuing appropriate orders or directions to the court below for disposing the petition moved under Section 9 of the Act, only after considering the amendment application. Ext.P8 is the copy of the application for amendment moved by the petitioner to amend the petition filed under Section 9 of the Act. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. The arbitration proceedings are now admittedly in progress. During the course of such proceedings, petitioner, a party to that proceedings moved an application under Section 9 of the Act before the District Court, Ernakulam and that court passed an WPC.21277/09 3 order that it has no jurisdiction to entertain that petition. Pursuant thereto, as the arbitrators venue was also shifted to Thiruvananthapuram, it is the case of the petitioner, he moved the application under Section 9 of the Act before the District Court, Thiruvananthapuram. Whatever be the circumstances connected with the filing of the petition before the District Court, Thiruvananthapuram, with reference to the relief claimed in the present petition which relate to the application for amendment (Ext.P8) now pending, I find the attempt of the petitioner, it appears, is to prevent the respondents from enforcing the bank guarantee. The enforcement of a bank guarantee in terms thereof cannot be prevented or interdicted in the absence of satisfaction by the court that it is vitiated by fraud or such other justifiable exceptional circumstances. Whether the petitioner is entitled to an interim relief during the pendency of the arbitration proceedings has already been heard by the learned District Judge and the petition itself is posted for orders. That petition has been taken up for consideration without the respondent filing a counter and before the amendment application moved by him is WPC.21277/09 4 considered, is the grievance of the petitioner for filing the petition. It is seen that Ext.P8 application is dated 24.7.2009. The nonfiling of a counter by the 1st respondent to the main petition under Section 9 of the Act is not a circumstance against the petitioner and the proposed amendment as seen from Ext.P8 is one for preventing the enforcement of bank guarantee, as evident from the additional relief sought by way of amendment, which on the face of it cannot be considered as bona fide. I find the writ petition lacks merit, and it is not entertainable. Petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp