M/S. MOBIL LB GLUE WORLD v. M/S.DOW COMING INDIA PVT.LTD

M.SASIDHARAN NAMBIAR, J............................................WP(C).No. 20233 OF 2008............................................DATED THIS THE 4th DAY OF JULY, 2008JUDGMENTPetitioner filed O.P. (Arbitration )141 of 2008 beforeDistrict Court, Thiruvananthapuram. In that Arbitration OP, hefiled I.A.2899 of 2006 for an order of temporary injunctionrestraining encashing of the bank draft furnished by thepetitioner to first respondent. Learned District Judge did notgrant an order without notice and instead, issued notice. Thispetition is filed under Article 227 of Constitution of India toquash that order and to pass an order directing third respondentBank from realising the amount by encashing the bankguarantee.2. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that bank guarantee wasfurnished at the time of the transaction entered into by thepetitioner with first respondent under Ext.P3 agreement andaccounts are not settled and without settlement of accounts, firstrespondent is not entitled to encash the amount and as there isan arbitration clause, the dispute between the petitioner andfirst respondent is to be settled by arbitration. Learned counsel WP(C) 20233/20082argued that as per Ext.P5 statement of account maintained bythe petitioner, total liability is only Rs.5,17,432.20 and in suchcircumstances, first respondent is not entitled to encash thebank guarantee, to the extent of Rs.17,75,136/-. Learnedcounsel argued that if the bank guarantee is encashed, the verypurpose of arbitration will be lost and the entire business ofpetitioner will be ruined and learned District Judge did notconsider this aspect, while issuing notice without passing anorder in favour of the petitioner.3. The question whether petitioner is entitled to an orderof injunction as sought for under Ext.P7 petition(I.A.2899 of2008) is a matter to be decided by the learned District Judge. When after hearing the petitioner, learned District Judge was notsatisfied with the case of the petitioner and granted an orderwithout notice to respondent, it is not for this court to interferewith that order and grant an interim order as sought for by thepetitioner. If the case of the petitioner is that learned DistrictJudge did not follow the case argued, or did not appreciate thecase in the proper perspective, petitioner is at liberty to file anapplication, either to review that order or to advance the hearingof the case, so that appropriate order could be obtained from the WP(C) 20233/20083District Judge. Petitioner cannot be granted an interim order assought for. If a petition is filed by the petitioner, learned DistrictJudge has to consider the same and pass appropriate order inaccordance with law. To enable the petitioner to move theDistrict Judge, it is directed that third respondent shall notpermit encashment of the bank guarantee for five days fromtoday to the extent of Rs.17,75,137/-. M.SASIDHARAN NAMBIAR, JUDGElgk/-