IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).NO. 24042 OF 2010(O) ------------------------------------------- (O.P(ARB.) NO.551 OF 2010, DISTRICT COURT, ERNAKULAM) PETITIONER(S): --------------------- 1. RASHEED, KADAVIL PARAMBIL HOUSE PONNARIMANGALAM,MULAVUKADU, KOCHI. 2. SHANAVAS RASHEED KADAVIL PARAMBIL HOUSE PONNARIMANGALAM,MULAVUKADU, KOCHI. BY ADV. SRI.FRANKLIN CHELLATH RESPONDENT(S): --------------------------- HDFC BANK, ERNAKULAM REPRESENTED BY ITS MANAGER (LEGAL) SUMIT P.PRASATH PIN 682 016 ADV. SRI.T.RAJESH, SC, HDFC BANK LTD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.24042 of 2010 ==================================== Dated this the 02nd day of August, 2010 J U D G M E N T Petitioners are respondents in O.P.(Arb.) No.551 of 2010 of the court of learned District Judge, Ernakulam. According to the petitioners they purchased an Excavator availing loan from the respondent on executing hypothecation agreement. At that time respondent obtained signed blank cheques from petitioners. Petitioners contended that by now they have paid Rs.8 lakhs and odd to the respondent. While so respondent filed Ext.P1, application before learned District Judge under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, “the Act') seeking attachment of the Excavator. That application was dismissed for default as per Ext.P4, order. Thereafter respondent filed O.P(Arb.) No.551 of and moved Exts.P6 and P7, applications to appoint Advocate Commissioner to take possession of the property and to hand over the same to the respondent and also for attachment. On Ext.P7, application learned District Judge passed Ext.P7(a) order directing petitioners to furnish security or show cause why they W.P(C) No.24042 of 2010 -: 2 :- should not furnish security. Exhibits P6, P7 and P7(a) are under challenge in this Writ Petition. Learned counsel for petitioners contended that O.P(Arb.) No.551 itself is not maintainable in the District Court for so many reasons including that there is no proper arbitration agreement and Sections 17 and 18 of Recovery of Debts Due to Bank and Financial Institutions Act barred respondent from filing application in the District Court under Section 8 of the Act. Learned counsel placed reliance on the decision in P.Narayanan Nair v. Achuthan Nair and Another (1973 KLT 299) and in particular paragraphs 13 and 17 of that decision. 2. I do not consider it necessary to go into the contentious issues in this Writ Petition since petitioners can raise all their objection before learned District Judge. Learned counsel for petitioner states when the applications came up on 27.7.2010 petitioners challenged jurisdiction of the court and the applications are now posted on 29.9.2010. I make it clear that it will be open to the petitioners to raise their objection before learned District Judge and if necessary request learned District Judge to advance hearing of the case. It is for the learned District Judge to consider whether objection raised by petitioners carry W.P(C) No.24042 of 2010 -: 3 :- weight. It is not necessary for this Court to go into the issues at this stage. Writ Petition is closed without prejudice to the right of petitioners to challenge maintainability of O.P(Arb.) No.551 of 2010 and the applications preferred by respondent. THOMAS P. JOSEPH, JUDGE. vsv