LMJ INTERNATIONAL LTD Vs. SLEEPWELL INDUSTRIES CO LTD

JUDGEMENT

(1.) Feeling aggrieved by the ex -parte ad -interim order of injunction dated August 10, 2011 passed on GA 2427 of 2011 filed in connection with CS 185 of 2011, the Respondent No. 1 has applied for vacating the same.

(2.) Mr. Mookerji, learned senior advocate appearing in support of the application contended that the suit instituted by the Petitioner is not maintainable having regard to the arbitration clause in the contract between the parties. Without waving such contention, it was further contended that the Petitioner abused the process of the Court while obtaining the ex -parte ad -interim order of injunction. He referred to prayer (a) of the application for injunction whereby the Petitioner claimed and obtained an order restraining the Respondent No. 1 from taking steps in terms of the letters dated July 28, 2011, being annexures X and Y thereto. According to him, the said letters do not relate to the subject contract bearing No. #LMJ/SIC/OCT/01 dated October 25, 2010 but were issued in connection with a different contract. It was next contended that the Petitioner did not approach the Court with clean hands. Material facts were suppressed to suit the Petitioner's convenience. The addendum by which the clause in the original contract regarding payment was amended from time to time, the report issued by the competent authority of the Govt. of Bangladesh upon inspection of the rice supplied to it, the Bill of Exchange in its entirety, etc. were not disclosed. Grant of injunction being a discretionary relief, he contended that the Petitioner by conduct has disentitled it to continuance of the order of injunction. Finally, it was contented that having regard to the terms of the GAFTA Arbitration Rules, 125 (hereafter the GAFTA Rules) and in particular Clause 2.2 thereof, notice of arbitration given by the Respondent No. 1 and appointment of an arbitrator by it is not at all time barred, as projected by the Petitioner. He further contended that even if it is time -barred, any grievance that the Petitioner might have had in respect of reference of an alleged time -barred dispute to arbitration ought to be urged before the arbitral tribunal to be constituted in terms of provisions contained in the GAFTA Rules and the arbitral tribunal, depending on the merits of the rival claims, may entertain the reference or refuse to entertain it. Since the suit itself is not maintainable, he concluded by submitting that grant of interim relief does not and cannot arise and, accordingly, prayed for an order to vacate the order dated August 10, 2011.

(3.) Mr. Deb, learned senior advocate appearing for the Petitioner, at the outset, conceded that there was indeed a mistake on the part of the advocate -on -record for the Petitioner, as a result whereof, documents issued on the same date and bearing similar contents in respect of contract No. #LMJ/SIC/OCT/02 were annexed to the application. He submitted that since technicality cannot override substantial justice, the mistake ought to be condoned. Insofar as the contention advanced by Mr. Mookerji that the Petitioner had suppressed material facts is concerned, it was submitted that there has been suppression of no fact that could be considered material for a decision on the application and hence fatal for the Petitioner. He endeavored to impress the Court by inviting its attention to the pleadings in the application for injunction that all material facts were on record. Answering the last contention, it was submitted that there is no valid arbitration agreement between the parties and that even if there be any, reference of the dispute to arbitration was indeed time barred, and therefore, no valid claim for vacating the order dated August 10, 2011 has been set up.