Petition Praying for Interim Measures

Petition Praying for Interim Measures

In the High Court at Calcutta Ordinary Original Civil Jurisdiction

In the matter of:

The Arbitration & Conciliation Act 1996

And

In the matter of:

An application under section 9 of the
said Act

And

In the matter of:

An Arbitration Agreement contained in the Contract No. 3 dated ………………

And

In the matter of:

Builders India Private Ltd., a company registered under the Companies Act 1956 and carrying on business at 7A, Camac Street, Calcutta 700 016

Petitioner

versus

S.N. Udyog Private Ltd., a company registered under the Companies Act 1956 and carrying on business at 6 S.P. Mukherjee Road, Calcutta 700 025

Respondent

To

The Hon’ble Mr. …………………… Chief Justice and His Companion Justices of the said Hon’ble Court

The humble petition of the petitioner above-named most respectfully

Sheweth:

1. The petitioner is engaged in construction of houses, flats, guest houses and other apartments.

2. The petitioner has a good reputation as a contractor in the construction business.

3. By and under a contract No. 3 dated ……………………………… entered into with the respondent, your petitioner agreed to build and construct several houses, flats and guest houses for and on behalf of the respondent in accordance with the specifications and on terms and conditions contained in the said contract.

4. Your petitioner carried out the work of construction in accordance with the said agreement and completed the work and obtained the completion certificate from the respondent.

5. Your petitioner submitted running bills from time to time but the respondent wrongfully deducted 10% from the same purported to be as Security Money.

6. The respondent also obtained the Performance Guarantee, from the petitioner issued by the petitioner’s Banker. The respondent also obtained from the petitioner Bank Guarantees for the Earnest Money that were required to be deposited with the respondent.

7. The respondent has wrongfully refused to take delivery of the completed houses, flats and guest houses on some flimsy pretext and has withheld payment of the outstanding bills amounting to Rs. 50 lakhs.

8. In breach of the said agreement, the respondent has invoked the said Bank Guarantees but the same has not yet been paid by the bank concerned.

9. Your petitioner gave due notice to the respondent regarding the dispute to the sole Arbitrator Mr. Rajib Khaitan an Advocate in terms of the arbitration clause in the said Contract No. 3. The respondent has not yet replied to the said notice appointing the said sole Arbitrator by the petitioner.

10. The said Bank Guarantees were furnished pursuant to fraud practised by the respondent on your petitioner inasmuch as your petitioner was led to believe that the respondent intended to act in accordance with the terms of the agreement and that it would not create problems for any oblique motives. The said Guarantees were issued on terms and conditions dictated by the respondent unilaterally and were burdensome. The petitioner was not aware of such terms and conditions dictated by the respondent to the bank without any intimation to the petitioner.

11. There is special equity that the said Bank Guarantee should not be enforced or encashed inasmuch as your petitioner has duly complied with the terms and conditions of the said Contract No. 3 and the respondent cannot have any genuine grievance in relation to the performance of any obligation of the petitioner under the Contract No. 3.

12. The respondent is commercially insolvent and several petitions are pending for windingup of the respondent company.

13. If the company goes into liquidation then your petitioner being an unsecured creditor will not get any payment in the winding up proceedings from the Official Liquidator. If in the meantime the Bank Guarantees were encashed then on the one hand, your petitioner’s huge amount will be taken away by the respondent and on the other hand, the outstanding bills amounting to Rs. 50 lakhs would remain outstanding and would never be recovered. The petitioner has a special equity in its favour for an Order of Injunction restraining invocation or encashment of the Bank Guarantees issued in relation to the Contract No. 3 namely Bank Guarantees Nos. 1 and 2 dated  5th and 10th January 1999 for Rs. 20 lakhs and Rs. 5 lakhs issued by State Bank of India, Camac Street Branch in favour of the respondent on behalf of the petitioner.

14. By reasons of the aforesaid, your petitioner prays for an Order of Injunction restraining the respondent from encashing the said Bank Guarantees until settlement of the disputes between the parties by the Arbitrator.

15. Unless  Orders are made as prayed for herein your petitioner will suffer loss and prejudice.

16. This application is made bona fide and in the interest of justice.

Your petitioner, therefore, humbly prays Your Lordships for the following Orders:

(a) Injunction restraining the respondent from enforcing the Bank Guarantees Nos. 1 and 2 issued by the State Bank of India, Camac Street Branch for Rs. 20 lakhs and Rs. 5 lakhs or encashing the same or receiving payment until the disposal of the arbitration proceedings in terms of the arbitration clause in the said contract;

(b)   Ad-interim Order in terms of prayer (a) above;

(c)   Costs incidental to this application be the costs in the proceedings.

And your petitioner, as in duty bound shall ever pray.

Signature of Advocate                                                                 Signature of

for the petitioner                                                                         the petitioner

Verification

I, ……………………………………… son of …………………………… ………………… aged about ………… years, by occupation service working for gain at 7A, Camac Street,
Calcutta 700 016 do hereby solemnly affirm and say as follows:

(1)  I am the Manager of Builders India Private Ltd. and a Principal Officer and a Constituted Attorney. I know and I have made myself acquainted with the facts and circumstances of this case and I am able to depose thereto. I am authorised and competent to verify the aforesaid petition and I do verify the same on behalf of the petitioner.

(2)  The statements contained in the paragraphs No. 1 to 16 hereinabove are true to my knowledge based on information derived from records maintained by the petitioner company and I believe them to be true.

Solemnly affirmed by the said Mr…………………………………… pursuant to Board Resolution of the Builders India Private Ltd. dated ………………… in the Court House at Calcutta on the 5th day of November 1999.

Before me

Commissioner

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