1 wp1572-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1572 OF 2011 Omprakash G Soni .. Petitioner versus The Cosmos Co-op. Bank Ltd & Anr .. Respondents Mr.Vivek Phadke for the petitioner. Mr.A.Y.Sakhare, Sr.Adv. With Mr.Siddharth Karpe for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. 12th September 2011. P.C.: . This petition under Article 226 of the Constitution of India challenges what has been referred to as an order dated 29th June 2011 of the sole arbitrator Mr.M.M.Parlikar. 2 That order reads thus: “17 In the result, I hereby order that the respondent Nos.1 to 5 who are jointly and severally liable, shall pay the amount of Rs.2,58,71,804.00 with future interest at the rate of 8.50% per annum from the 2 wp1572-11.doc institution of the claim i.e 15.09.2010 till payment (realisation) of the whole of the amount. It is hereby made clear that, the interest up to the date of institution of the claim (dispute) shall be as per the agreed rate of interest and/ or as the case may be, as per the directives and instructions issued by the Reserve Bank of India, from time to time. The claimant Bank shall adjust the payment, if any, made after the institution of the claim and obviously the interest charged in that case will be on the reducing balance. The respondents shall also bear the costs of Rs. 75,500.00, which the claimant bank is entitled to. Award accordingly.” 3 It is clear that what was referred to the sole arbitrator, was a claim of the 1st respondent which is a co-operative society under the Multi State Co-operative Societies Act, 2002 (for short “the Act”). This claim was treated as one dealt with as a dispute under section 84 of the Act, Chapter IX is entitled “Settlement of disputes” and section 84 falling in the said chapter reads thus: “84. Reference of disputes.-(1) Notwithstanding anything contained in any other law for the time being in force, if any dispute [other than a dispute regarding disciplinary action taken by a mutli-State Co-operative society against 3 wp1572-11.doc its paid employee or an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947)] touching the constitution, management or business of a multi-State Co-operative Society arises- (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past members and persons claiming through a member, past member or deceased member and the multi-State co-operative society or liquidator, past or present, or (c) between the multi-State co-operative society or its board and any past board, any officer, agent or employee, or any past officer, past agent or past employee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the multi-State co-operative society, or (d) between the multi-State co-operative society and any other multi-State co-operative society, between a multi-State co-operative society and liquidator of another multi-State co-operative society or between the liquidator of one multi-State co-operative society or between the liquidator of one multi-State co-operative society and the liquidator of another multi-State co-operative society, such dispute shall be referred to arbitration. 4 wp1572-11.doc (2) For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or business of a multi-State co-operative society, namely:- (a) a claim by the multi-State co-operative society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not, (b) a claim by a surety against the principal debtor where the multi-State co-operative society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not; (c) any dispute arising in connection with the election of any officer of a multi-State co-operative society. (3) If any question arises whether a dispute referred to arbitration under this section is or is not a dispute touching the constitution, management or business of a multi-State co-operative society, the decision thereon of the arbitrator shall be final and shall not be called in question in any Court. 5 wp1572-11.doc (4) Where a dispute has been referred to arbitration under sub-section (1), the same shall be settled or decided by the arbitrator to be appointed by the Central Registrar. (5) Save as otherwise provided under this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to all arbitration under this Act as if the proceedings for arbitration were referred for settlement or decision under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996).” 4 It is clear that the claim was referred for arbitration and it was settled or decided by the arbitrator. That is how it has been termed as final arbitral Award dated 29th June 2011. 5 Upon a query from the Court as to how a writ petition under Article 226 of the Constitution of India would lie to challenge this Award, all that is argued is that this Award was rendered without hearing the petitioner and, therefore, the writ petition is maintainable. 6 Upon the attention of the learned counsel being invited to 6 wp1572-11.doc sub-section 5 of section 84 of the Act, he fairly states that the impugned final Award can be challenged by resorting to section 34 of the Arbitration and Conciliation Act, 1996 and seeks leave of this Court to withdraw the writ petition with liberty to file arbitration petition under section 34 of the Arbitration and Conciliation Act, 1996. 7 In the light of the above, the writ petition is dismissed as withdrawn with liberty to file appropriate proceedings before the appropriate Court under provisions of sub-section 5 of section 84 of the Multi State Co-operative Societies Act, 2002. Petition is disposed off. (S.C.DHARMADHIKARI, J)