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