1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR MISC. CIVIL APPLICATION NO. 898 OF 2006 Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 23, 2007. At the threshold itself, Shri Mehadia, learned counsel for the for the respondent has made grievance that the detailed arguments advanced by him pointing out non availability of Arbitration in such dispute has not been considered or at least its consideration has not been recorded by this Court on 15.2.2007. His contention is that the arbitration is being invoked in misappropriation matter which is criminal offence and therefore recourse to civil remedy is excluded. He has taken the Court through correspondence and notice issued by the applicant in this respect wherein the word misappropriation and tampering of documents and criminal breach of Trust etc. are used by present applicant. He had also placed reliance upon the judgment of the Hon'ble Apex Court in the case of Trisuns Chemical Industry vs. 2 Rajesh Agarwal, reported at (1999) 8 SCC 686, in support of his contention. Shri Thakkar, learned counsel for the applicant in reply had pointed out the arbitration clause and has contended that the notice issued is for recovery of amount only and no punishment as such is being sought against the non-applicant/ respondent. He states that if entire notice is read appropriately, it does not signify any criminal element in it. He contended that judgment of the Hon'ble Apex Court is not at all relevant. After hearing both the counsel on last occasion, I had expressed that judgment of the Hon'ble Apex Court which dealt with basically the aspect of scope of Section 482 of Criminal Procedure Code was not relevant in the matter. The perusal of paras 7 to 9 of reported judgment reveal that there First Information Report or cognizance in criminal matter was sought to be quashed by pointing out Arbitration clause in the agreement between the parties. The Hon'ble Apex has noted that Arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. It has been also observed by the 3 Hon'ble Apex Court that Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the Arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. In this view of the matter, the Hon'ble Apex Court noted that those cannot be good reasons for the High Court to axe down the complaint at the threshold itself. I find that the facts at hand are entirely different. Hence, on last occasion this Court had asked the parties to proceed further for appointment of Arbitrator and accordingly order came to be recorded on 15.2.2007. Today, Shri Mehadia, learned counsel states that the respondent has decided to appoint Advocate O.U. Agarwal, resident of Opposite Dhanwantari Hospital, Khare Town, Dharampeth, Nagpur, as their Arbitrator. In the circumstances, the Arbitrator appointed by present applicant Advocate O.U. Agarwal can proceed further with arbitration proceedings in accordance with law. They will proceed to appoint a Presiding Arbitrator for further 4 proceeding of the matter. In view of these directions, the present Misc. Civil Application does not survive and the same is accordingly disposed of. The petitioner / applicant shall deposit processing fee of Rs.5,000/- under clause 12(b) of the Scheme, within a period of two weeks. JUDGE *GS.