IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 OP(C).No. 2639 of 2011(O) ------------------------------------- [O.S.NO.190/2011 OF ADDITIONAL SUB COURT, THALASSERY] .................... PETITIONER: ------------------- K.MUHAMMED HAJI,S/O.MOIDEENKUTTY, AGED 62 YEARS,P.W.D. CONTRACTOR, M.P.K MANZIL, P.O EDAYANNUR, THALASSERI TALUK. BY ADVS. SRI.K.V.PAVITHRAN, SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL, SRI.T.P.SAEED, SRI.E.M.UNNIKRISHNAN (MANJERI), SRI.K.C.ANTONY MATHEW. RESPONDENT: ---------------------- SOUTHERN DREDGING COMPANY PRIVATE LIMTED, FLAT NO.905, PIONEER TOWERS, MARINE DRIVE, ERNAKULAM,REPRESENTED BY MANAGING DIRECTOR, SUNIL SIVADASAN, S/O.SIVADASAN,AGED 41 YEARS - 682 031. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2639/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 190/2011 ON THE FILE OF SUB COURT, THALASSERI. EXT.P.2: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF APPLICATION FOR INTEIRM ATTACHMENT. EXT.P.3: COPY OF THE COUNTER FILED BY RESPONDENT. EXT.P.4: COPY OF THE ORDER DTD. 31/05/2011 IN THE APPLICATION FOR INTERIM ATTACHMENT. EXT.P.5: COPY OF THE BANK GUARANTEE FURNISHED BY THE RESPONDENT DTD. 30/05/2011. EXT.P.6: COPY OF THE SECURITY BOND FURNISHED BY THE RESPONDENT. EXT.P.7: COPY OF THE APPLICATION PRAYING TO EXTEND THE SECURITY. EXT.P.8: COPY OF THE ORDER IN I.A. NO. 221/2011 DTD. 26/07/2011 OF THE SUB COURT, THALASSERI. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2639 of 2011 ==================================== Dated this the 20th day of September, 2011 J U D G M E N T Respondent is served but there is no response. 2. This Original Petition is in challenge of Ext.P8, order whereby the application filed by petitioner to direct the respondent to extend the Bank Guarantee until disposal of the suit was closed on an undertaking made by the respondent and on the strength of the affidavit which is said to have been filed. 3. Petitioner filed O.S. No.190 of 2011 in the court of learned Additional Sub Judge, Thalassery for return of advance money, damages and other reliefs and obtained a conditional attachment of movables belonging to the respondent. Learned Sub Judge while issuing show cause notice directed respondent why it shall not furnish security. Respondent appeared and produced a Bank Guarantee, the period of which expired 29.08.2011 as seen from Ext.P5, Bank Guarantee. Respondent also filed an affidavit that the Bank Guarantee will remain in force until 29.08.2011. By O.P(C) No.2639 of 2011 -: 2 :- the time period of Bank Guarantee was to expire, petitioner filed I.A. No.221 of 2011 for a direction to extend the Bank Guarantee. In answer to that application respondent made an undertaking that it will not withdraw the Bank Guarantee until disposal of the suit and is said to have filed an affidavit to that effect. Based on that, learned Sub Judge closed I.A. No.221 of 2011. That order is under challenge in this petition filed on August 10, 2011. It is contended by learned counsel that a mere undertaking that the Bank Guarantee will not be withdrawn is not sufficient since that statement will not bind the Bank which issued the Bank Guarantee. 4. Learned counsel submitted that on 07.09.2011 the Bank Guarantee has been extended for a period of three months (which is to expire on 06.12.2011). Apprehension of petitioner is that if the Bank Guarantee is extended for a limited period of three months, petitioner has to file application every time before the period of Bank Guarantee expires for its extension. Learned counsel submitted that normally it is not possible to dispose of the suit within three months and in the circumstances learned Sub Judge ought to have extended the Bank Guarantee till disposal of O.P(C) No.2639 of 2011 -: 3 :- the suit. It is submitted by learned counsel that unless Ext.P8, order is set aside, if a fresh application is filed by petitioner, respondent may contend that petitioner is bound by Ext.P8, order and the trial court may refuse to grant relief to the petitioner. 5. Now that as submitted by learned counsel on 07.09.2011 the Bank Guarantee has been extended for a period of three months, much of grievance of petitioner has already been redressed. What remained is whether the Bank Guarantee is to be extended beyond 06.12.2011. That should depend upon the facts of the case as at that time. It may not be possible to extend the Bank Guarantee until disposal of the suit since that will be for an uncertain period. Bank Guarantee normally should be for a specified period. Learned Munsiff has to consider whether it should be limited to a period of three months or for a considerable length of specified period having regard to the facts and circumstances of the case. 6. I make it clear that notwithstanding Ext.P8, order it will be open to the petitioner to request the learned Sub Judge to extend the Bank Guarantee for appropriate, considerable period O.P(C) No.2639 of 2011 -: 4 :- as the case may be and as circumstances warranted on the expiry of the period of three months from 07.09.2011 and if any such request is made, learned Sub Judge shall consider the same and pass appropriate orders having regard to observations and grievance of petitioner. Original Petition is disposed of with the above direction and observation. THOMAS P. JOSEPH, JUDGE. vsv