- (1.) Petitioner has moved this Court for interim measure. Mr. Banerjee, learned advocate appears on behalf of petitioner and submits, pursuant to direction made in order dated 12th June, 2019, copy of said order, downloaded from website of this Court, was sent by registered post with acknowledgement due card to, inter alia, respondent no.1 under cover of letter dated 14th June, 2019. Postal article showing consignment number RW220487327IN was tracked as same could not be delivered to addressee on having left without instruction. He submits, this is good service on compliance of clause (b) under sub-section (1) of section 3 in Arbitration & conciliation Act, 1996. He presses for orders being made pending reference contemplated. He submits further, under section 27 of General Clauses Act, 1897 this would also qualify as good service.
(2.) To avoid repetition, it would be convenient to set out order dated 12th June, 2019. "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."
(3.) 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.;