1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 926 OF 2010 WITH WRIT PETITION NO.927 OF 2010 WITH WRIT PETITION NO.928 OF 2010 M/s. Rainproof Exports Pvt. Ltd. ...Petitioner Vs. Abhyudaya Co-operative Bank Ltd. & Ors. ...Respondents Mr. S. K. Shinde, Advocate for the Petitioner Mr. S.D. Rairikar, A.G.P for Respondents 3 and 7 Mr. V.C. Ghosalkar, Advocate for Respondent No.1 CORAM : SMT.ROSHAN DALVI, J. DATED : 24TH FEBRUARY, 2010 P.C. : 1. These Petitions challenge the order of the Assistant Registrar, Co-operative Society, Mumbai dated 28th March 2009 allowing Respondent No.1 Bank to withdraw the recovery application made by it before that Court. It is the contention of the Petitioner that he was not heard before the application filed by the Bank was sought to be withdrawn by the Bank. Upon that contention he challenges the order of withdrawal. 2 2. A party can withdraw whatever proceedings it files. The opposite party is required to be heard, if an order prejudicial to that party is passed. When a party withdraws the application, it is elementary that the party against whom an application is sought to be withdrawn would not have to defend that application. Hence the contention that the Petitioner was not heard before the Respondent No.1 Bank sought to withdraw its own application is entirely misconceived. 3. In any event any order passed by the Assistant Registrar, Co-operative Societies can be challenged in Revision under Section 154 of the Maharashtra Co-operative Societies Act 1960 (the Act) before the Additional Joint Registrar. That alternative remedy has not been resorted to. 4. The application came to be filed for withdrawal of the Recovery Proceedings by the Respondent No.1 Bank because Arbitration Proceedings had been filed by the Bank prior thereto under Section 84 of the Multi- State Co-operative Societies Act, 2002 (Multi State Act) upon it having become a Multi State Bank. The Arbitration Proceedings were commenced on 23rd January 2009. Since that remedy was available to the Respondent No.1 Bank under the Multi-State Act they could not pursue the earlier remedy resorted by them. 5. The Arbitration Proceedings have continued. Notice has been issued upon the Petitioners. The Petitioners have filed their written statement in 3 Arbitration. The Petitioners have raised contention that the learned Arbitrator has no jurisdiction in view of the order of this Court in the case of Respondent No.1 Bank Vs. The State of Maharashtra. The Petitioners have also raised other contentions on merits. 6. Mr. Shinde states that the Petitioner has not filed his written statement. I have been shown the affidavit filed by the Petitioner on merits of the claim, including in his last paragraph the reference to the aforesaid judgment affirmed on 14th December 2009. In view of this, it is most improper for Counsel of this Court to make a statement that no written statement is filed. 7. The learned Arbitrator is entitled to consider all aspects including the aspect of lack of his own jurisdiction under Section 16 of the Arbitration and Conciliation Act 1996 (Arbitration Act). The Petitioner has not pursued his application for determination of the issue relating to jurisdiction. The Arbitration Proceedings have continued. The Arbitrator has placed the matter for trial. The Petitioner may take up whatever contention he/it requires before the Arbitrator. Since the Arbitration Proceedings are also pending the Writ jurisdiction cannot be invoked. The Petitioners are seen to have resorted to the Petition only to bind time. 8. The Writ Petitions are dismissed. (SMT.ROSHAN DALVI, J.)