1 ARBP448.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 448 OF 2009 Kail Ltd. and Anr. ... Petitioners. V/s. Sahebrao Deshmukh Co-op. Bank Ltd. & Ors. ... Respondents. Mr. R.D. Soni i/b. Ram and Co. for the Petitioners. Mr. R.S. Ghadge i/b. A.S. Desai for Respondent 1. Mr. V.M. Vaghela for Respondent Nos.2 and 4. Mr. Bhalchandra Raut, Manager (Recovery) of Respondent No. 1 present in Court. CORAM : R.Y. GANOO, J. DATED : 20th JULY 2010. P.C. :- Respondent No.1 had advanced loan to Respondent No.2 partnership firm of which Respondent Nos.3 and 4 are partners. Petitioner No.1 is a Limited Company of which Petitioner No.2 is a Director and Petitioner No.1 had stood as a guarantor for the loan transaction between Respondent Nos.1 and 2. 2 ARBP448.09.sxw 2. Respondent No.1 has applied to the appropriate forum so as to secure a certificate under Section 101 of the Maharashtra Co-operative Housing Societies Act. As according to Respondent No.1, Respondent Nos.2 to 4 have not complied with the loan liabilities. The said certificate is yet to be received by Respondent No.1. 3. It is noticed that on yearly basis article of agreement used to be entered into between Respondent Nos.1, 2 and the Petitioners so as to set down the terms and conditions on which the loan would be granted. In the said agreement, there has been an arbitration clause. According to the Petitioners, for the years 2008-2009, an agreement was duly engrossed and the Petitioners executed the said agreement so far as they are concerned and forwarded the said documents to Respondent No.1 for favour of signature of Respondent Nos. 1 and 2. A copy of the said document is at Exhibit ‘A’. 4. This Petition has been filed by the Petitioners by treating that the articles of agreement dated 25th March 2008 have been duly signed by all the parties. By this Petition, the 3 ARBP448.09.sxw Petitioners want that Respondent No.1 should be directed to take steps for referring the dispute to the Arbitration. Pending the disposal of this Petition, the Petitioners want that Respondent No.1 should be restrained from proceeded against the Petitioners on the basis of Notice dated 5th May 2009 under Section 101 of the Maharashtra Co-operative Societies Act. The Petitioners also want appointment of a Court Receiver in regard to shop owned by Respondent No.2, more particularly described in prayer clause (c). 5. The Petition proceeds on the footing that agreement dated 25th March 2008 has been duly engrossed and signed by all the parties. 6. As the matter was taken up for final hearing, the learned Counsel appearing on behalf of Respondent No.1, upon instructions from Mr. Bhalchandra Raut, the Manager (Recovery) of Respondent No.1, stated that the Bank has not signed the agreement dated 25th March 2008 which was forwarded to the Bank. He has also submitted that same is the position as regards Respondent No.2. This will mean that 4 ARBP448.09.sxw today, before the Court, there is no agreement which is duly executed by all the parties and on which reliance is placed by the Petitioners. If this be so, the present Arbitration Petition based on the relevant clause 11 which appears in the document (not executed) is not maintainable. Hence, this Petition cannot be entertained and is dismissed with no order as to costs. 7. If the Petitioners have any remedy so as to protect their interest as a guarantor, the Petitioners are free to adopt that remedy. If the Petitioners intend to take any action against Respondent Nos. 1 and 2 based on any agreement which has been duly executed by and between the parties, the Petitioners are free to adopt appropriate proceedings on the strength of said documents. In view of the dismissal of the Petition, the ad-interim relief granted earlier stand vacated. (R.Y. GANOO, J.)