1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7107 OF 2009 Shri Gayatri Developers, A registered Partnership Firm, Having its office at M/s Rajendra Refineries, Industrial Estate, Dhule Road, Chalisgaon, Dist. Jalgaon Through its Partner 1] Mrs. Angha Rajendra Agrawal, Age 48 years, Occu. Business, R/o M/s Rajendra Refineries, Industrial Estate, Dhule Road, Chalisgaon, Dist. Jalgaon. 2] Mrs. Kalpana Shashikant Dhamane, Age 49 years, Occu. Business, R/o ‘Abhipuja’ plot No. 17, Sajjan Cooperative Housing Society, Chalisgaon, Dist. Jalgaon. Through power of Attornery Shri Raendra Narayan Agrawal, age 56 years, Occu. Business R/o Rajendra Refineries, Industrial Estate, Dhule Road, Chalisgaon, Dist. Jalgaon. ....Petitioner. Versus M/s. Patel and Company A registered Partnership Firm Having its office at Bhadgaon Road, Chalisgaon, Dist. Jalgaon Through its Partners : 1] Mrs. Gangubai Deoji Patel, Age Major, Occu. Business, R/o Station Road, Chalisgaon. 2] Shri Jagdish Deoji Patel, Age Major, Occu. Business, R/o Station road, Chalisgaon. 2 3] Shri Purushottam Deoji Patel, Age Major, Occu. Business, R/o Station road, Chalisgaon. ....Respondents. Shri. S.V. Adwant, Advocate for the Petitioner Shri. K.B. Deshpande, Advocate for the respondents 1 to 3. CORAM : R.K. DESHPANDE, J. DATE : 1st of July, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges order dated 20/09/2009 passed by the learned arbitrator acting as an arbitral Tribunal under the provisions of Arbitration and Conciliation Act, (here-in-after referred as “said Act”) holding that the Development Agreement is not admitted as piece of evidence and shall not be exhibited and shall not be looked into for the purpose of ascertaining the terms and conditions of it. 2. Notice in this matter was issued on 03/11/2009. Shri K.B. Deshpande, learned counsel appears for respondent Nos. 1 to 3. The learned counsel for the parties agree that the matter can be finally heard at the stage of admission. Hence Rule returnable forthwith. Matter is heard by consent of parties. 3. This Court in exercise of powers under Section 11(6) of the 3 Arbitration and Reconciliation Act, 1996 appointed Mr. S.C. Malte a retired Judge of this Court, as an arbitrator to resolve the disputes between the petitioner who is the developer of the property and the respondents who are the owners of the property, arising out of the Development Agreement dated 19/06/2002. By an order dated 20/09/2009, the learned Arbitrator has held that the Development Agreement is not admitted as a piece of evidence and it cannot be looked into for the purposes of ascertaining the terms and conditions of it. Shri S.V. Adwant, learned counsel appearing for the petitioner has urged that in view of this, the very basis of the dispute between the parties may not survive, and hence, jurisdiction of this Court under Article 226 and 227 of the Constitution of India can be invoked. The learned counsel also addressed this Court on merits of the matter regarding illegality and correctness of the order, impugned in the petition, in order to urged that the Writ Petition under Article 226 and 227 of the Constitution of India is maintainable challenging the order passed by the learned Arbitrator, he relied upon the following judgments :- 1] Arbitration Case No. 229 of 1998, decided on 30/01/1999. 2] Volume 2(2002) B.C. 705, Madras High Court 3] 1993 Supple.(2), Supreme Court Cases, 433 ( M.V. Elisabeth & others V/s. Harwan Investment and Trading Pvt. Ltd., ) 4] AIR, 1976, Supreme Court, 425 ( Rohtas Industries Ltd. and one another V. Rohtas Industries Staff Union and others) 4 4. Shri K.B. Deshpande, learned counsel appearing for respondent Nos. 1 to 3 has urged that there is an alternative, efficacious remedy available under Section 34 of the said Act, to challenge the arbritral award. According to him, if on the basis of the decision given by the learned Arbitrator, nothing survives for adjudication then this is an arbitral award and for setting it aside, remedy is provided under Section 34 of the said Act. According to him, the instant Writ Petition is liable to be dismissed, on this sole ground. He relied on the following judgments :- 1] AIR, 2006 Supreme court, 450 (M/s. S.B.P. & Co. V. M/s. Patel Engineering Ltd., and Anr. ) 2] 2008(5) All MR 665 ( M/s. Sandip Industries Vs. M/s. Superpack & Anr.) 5. When no dispute survives in view of order dated passed 20/09/2009 by the learned Arbitrator holding that the Development agreement dated 19/06/2002, cannot be looked into and it is not admissible in the evidence, then certainly remedy under Section 34 of the said Act, is available, to seek setting aside of the award. In view of this, position law laid down in SBP’s case cited supra is required to be looked into. Paras No. 44 of the said judgment is relevant and the same is 5 reproduced below :- “Para No. 44 :- It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution of India. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appelable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible.” The aforesaid the view has been followed by the Division Bench of this Court in its judgment in M/s. Sandip Industries case cited supra. Thus, law is well settled that if statutory remedy is available, 6 then this Court shall not interfere with such orders in exercise of Writ jurisdiction under Article 226 and 227 of the Constitution of India. 6. The judgments referred by Shri Adwant, the learned counsel appearing for the petitioner, are essentially on the powers of the High Court to entertain writ under Article 226 and 227 of the Constitution of India. All those judgments are rendered prior to the decision of the Constitution Bench of the Apex Court in SBP’s case cited supra. Be that as it may, none of the judgments cited lay down a law that inspite of the fact that alternate statutory remedy is available to challenge arbritral award, a writ under Article 226 and 227 of the Constitution of India, should be entertained. It is a question of propriety or of judicial restrain, in exercise of such power. Hence, the judgments relied upon are of no help to the petitioner. 7. In view of the aforesaid position, there is no substance in this Writ Petition and same is therefore, dismissed. Rule is discharged accordingly. It is made clear that, this Court has not observed anything on the merits of the matter. The petitioner is at liberty to avail the alternate remedy, and all points urged on merits are kept open. No orders as to costs. [ R.K. DESHPANDE, J. ] SDM*7107.09WP