- (1.) This arbitration petition is for interim measure. Mr. Banerjee, learned advocate appears on behalf of petitioner and submits, his client obtained personal guarantee from respondent no.1 in consideration of financial accommodation granted to her husband, since deceased. The guarantee is dated 30th November, 2016. Clause 3 in the guarantee provides for default on part of customer and failure by guarantor to make payment on invocation of the guarantee. Drawing attention to invocation letter dated 26th February, 2019 Mr. Banerjee submits, this was delivered to said respondent guarantor. Reproduced below is relevant paragraph operating as the invocation. "Under such circumstances and under specific instructions received from our client it is hereby informed that the said personal guarantee agreement dated 30th November, 2016 is hence invoked, thus holding Addressee nos. 1 to 5 herein liable to liquidate the dues amounting to Rs.64331850.48p (Rupees Six Crore Forty Three Lakhs Thirty One Thousand Eight Hundred Fifty and Forty Eight Paise Only) on behalf of the borrower in terms of the agreement between the parties, within 7 (seven) days from the date of receipt of this letter failing which our client shall resort to appropriate relief under the provisions of the said Act by way of impleading Addressee nos. 1 to 5 herein as parties to the proceedings in terms of the instant agreement between the parties being the personal guarantee agreement dated 30th November, 2016."
(2.) He submits, in spite of due invocation guarantor did not pay. Clause 33 in the guarantee provides for arbitration clause and arbitration is contemplated. At this time interim measure is necessary to prevent guarantor from seeking to frustrate the claim of his client. On query from Court regarding clause 29 in the guarantee he submits, guarantor did not furnish list of immovable or movable properties held by her. He hastens to add, his client has obtained statement of encumbrance on properties held by guarantor, as heir of her deceased husband who was customer of his client. The certificates are at pages 139 to 149 of the petition. He submits, affidavit of service has been filed to show good service of the petition on said respondent. Affidavit bears postal receipt showing consignment no.EW251374943IN despatched to said respondent, against which postal track record shows that on 10th April, 2019 it was delivered as 'unclaimed'. He submits further, her husband as customer of his client had wilfully and deliberately defaulted in repaying the accommodation. Guarantee provides for his client to sue the guarantor as principal debtor. Money has become due on the guarantee. Clause 23 in the guarantee provides for service of notice. Said clause is reproduced below:- "23. Any demand for payment or notice under this Guarantee shall be sufficiently given is sent by post to or left at the last known address of the Guarantor(s) and such demand or notice shall be assumed to have reached the addressee in the course of post, if given by post, and no period of limitation shall commence to run in favour of the Guarantor(s) until after demand for payment in writing shall have been made or given as aforesaid and in proving such demand/notice when sent by post it shall be sufficiently proved that the envelope containing the demand/notice was posted and a certificate by any official of SEFL that to the best of his/her knowledge and belief, the envelope containing the said demand/notice was so posted shall be conclusive as against the Guarantor(s), even though it was returned unserved on account of refusal of the Guarantor(s) or otherwise." Going by the clause Court is satisfied that the petition was duly served.
(3.) Petitioner will obtain and serve copy of this order on respondent no.1 for her to be given yet another opportunity to come and be heard, failing which Court will deal with this petition on considering list of properties, shown in the statement of encumbrance on property document, to be held by said respondent, as correct. Petitioner will file affidavit of service. List on 26th June, 2019. ;