GENERAL TYRE EAST AFRICA LTD v. HSBC BANK PLC [2006] TLR

Facts
Having filed a plaint~the applicant/plaintiff is by this application seeking a temporary injunction to restrain the defendant/respondent from commencing receivershipproceedings against its assets pending the determination ofthe main suit. The applicant contended that because the respondent had given notice of its intention to appoint a receiver, an order of temporary injunction was necessary so as not to defeat the very purpose of the main suit and also to prevent irreparable loss/injury to the applicant.The respondent strongly opposed the application on, among other grounds, that the pre-conditions for grant of a temporary injunction were not met and that the law applicable was not properly cited.
Held: (i) This application for an interlocutory injunction was properly brought under Order XXXVII, Rules 1 and 3 of the Civil Procedure Code and, to that extent, cannot be faulte.
(ii) The right to appoint a receiver is overdue as this right accrued to the respondent as a debenture-holder immediately upon default being made by the appellant in repayment of the principal and interest; to say otherwise would be to defeat the very purpose for which a debenture is issued as a security.
(iii) The Court's jurisdiction to interfere in the case of a contract by granting an interlocutory injunction is limited to cases where it is clear that a breach must result from the acts of the defendant; in the instant case no breach will result from the act of the defendant/respondent of appointing a receiver as it is his contractual right.
(iv)Banksllenders and their customerslborrowers must fulfill and enforce their respective contractual obligations under the various lending/securities agreements entered into by the parties; to restrain a debenture-holder from exercising his contractual rights and enforcing his security is not only unreasonable but contrary to the express contractual terms ofthe agreements entered into by the parties which, in this case, were clearly admitted by the applicant himself.
(v) A grant of a restraining order in this case would be contraty to generally established banking principles and securities law.


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