IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 38034 of 2007(C) ---------------------------------------- PETITIONER(S): ----------------------- BENNY PAUL, S/O. A.V.PAILY, ARAMBALAKUDIYIL HOUSE, MANDAD, MUTTIL VILLAGE, VYTHIRI TALUK. BY ADV. MR.RAJESH VIJAYAN RESPONDENT(S): ------------------------ 1. M/S. SREERAM INVESTMENT CO.LTD., SREERAM GROUP OF COMPANIES, CHEROOTTY RORAD, KOZHIKODE. 2. MANAGING DIRECTOR, KERALA TRANSPORT DVELOPMENT FINANCE CORPORATION LTD., TRIDA COMPLEX, PALAYAM, THIRUVANANTHAPURAM. BY ADVS.MR.RAJESH NAMBIAR FOR R1 MR.K.SHIBILI NAHA FOR R.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.38034/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RELEVANT PAGES OF THE R.C. BOOK OF THE STAGE CARRIAGE BEARING REGISTRATION NO.KL 12/B 2767. P2:- COPY OF THE ORDER IN IA. 1080/06 IN OS. NO.153/06 OF THE SUB COURT, SULTHAN BATHERY. P3:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER . RESPONDENT'S EXHIBITS R1 (A):- COPY OF THE AGREEMENT DT. 25.2.02. R1(B):- COPY OF THE NOTICE SENT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT. R1(C):- COPY OF THE ORDER DT. 3.4.07 IN IA. NO.1080/06 IN OS. 153/06. R1(D):- COPY OF THE NOTICE DT. 11.12.07 INTIMATING THE PETITIONER THE NAME OF THE ARBIRATOR. TRUE COPY P.A. TO JUDGE TSS P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 38034 of 2007(C) ====================== Dated, this the 24th day of March, 2009 J U D G M E N T The grievance of the petitioner is that the first respondent is taking the law into their hands for forcefully taking possession of the stage carriage bearing registration No.KL-12/B 2767 belonging to the petitioner wrongly referring to the hypothecation in favour of the “second respondent”. 2. The case of the petitioner is that there is absolutely no agreement or privity of contract between the petitioner and the first respondent and that the latter was only acting as a 'collection agent' of the second respondent who sought to realise huge amounts from the petitioner, which hence was sought to be intercepted by filing O.S. No.153 of 2006 before the Sub Court, Sulthan Bathery seeking for a permanent prohibitory injunction also seeking for a positive direction against for furnishing the actual statement of accounts. In the course of the proceedings W.P.(C) No. 38034 of 2007 -:2:- before the court below, the respondents herein, along with the predecessor-in-office of the first respondent company - as it existed earlier, filed a petition under the Arbitration and Conciliation Act, 1956 stating that a lease agreement had been executed between the first respondent company and the petitioner; that there was no agreement between the petitioner and the 'second respondent' at any point of time and that there was a specific clause (Clause 35) providing for Arbitration, if at all any dispute was there between the parties. Placing reliance on the Arbitration clause, the court below returned the plaint and such other documents under Order 7 Rule 10(11) of C.P.C. observing that the petitioner/plaintiff could approach the Arbitrator. It is stated that the above order passed by the court below has not been subjected to challenge by the petitioner and has become final. 3. The first respondent has filed a counter affidavit producing a copy of the relevant agreement executed with the petitioner (Exhibit R1(r) and such other proceedings W.P.(C) No. 38034 of 2007 -:3:- including Exhibit R1(c) order passed by the court below as aforesaid. It is pointed out that the petitioner is trying to establish his rights and liberties flowing from a contract, which is not permissible in a Writ proceeding, in view of the binding judicial precedents. The learned counsel for the petitioner submits that pursuant to order passed by the court below, referring to Clause 35 of the agreement stated as executed with the first respondent, the Arbitration proceedings have already been commenced before the Arbitrator. The immediate cause of action for the petitioner for approaching this Court is stated as the apprehension as to the steps being pursued by the first respondent for effecting the seizure of the vehicle, which otherwise would have resulted in much adverse consequence. 4. The learned counsel for the first respondent submits that even though no interim order was passed by this Court, no attempt to re-possess/seize the vehicle was ever thought of by the first respondent and that the W.P.(C) No. 38034 of 2007 -:4:- petitioner is still operating the concerned stage carriage. It is also added by the learned counsel that even if such apprehension persists, the petitioner is at liberty to invoke Section 93 of Arbitration and Conciliation Act, 1993 for appropriate reliefs. As such, it is not at all a fit case to have a fact adjudication to be pursued by this Court, particularly with regard to the rights and liberties sought to be enforced on the basis of a contract and further when appropriate proceedings are stated as pending before the Arbitrator, in conformity with the stipulation under Clause 35 of Exhibit R1(a) agreement. In the above facts and circumstances, the writ petition is disposed of, making it clear that the parties can pursue their rights and remedies before the other appropriate authorities. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.