arbp-lod-11-33-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION LOD.NO.11 OF 2011 ALONGWITH ARBITRATION PETITION LOD.NO.33 OF 2011 Bharat Infrastructure & Engineering Ltd .. Petitioner Versus Azad Nagar Jeevan Sandhya Co-op.Hsg. Society Ltd & Anr. .. Respondents Mr.M.M.Vashi i/by M.P.Vashi & Associates for the petitioner. Mr.Ahmed Abdi i/by Abdi, Wagh & Co for respondent No.1. Mr.Dinesh Purandare a/w Hiren Mehta for respondent Nos.2 and 4. CORAM: S.C.DHARMADHIKARI, J. DATE : 7th FEBRUARY 2011 P.C. . Heard both sides. Admit. By consent taken up forthwith. The differences between the petitioner and the 1st respondent- Society arise on account of compliance with the obligations under an agreement between the petitioner and the 1st respondent. Both sides do not dispute that the same provides for resolution of these disputes and differences by arbitration. The petitioner is ready and arbp-lod-11-33-11.doc 2 willing to go for arbitration and so is the 1st respondent-Society. Bearing in mind that the petitioner and the respondents are accusing each other of not complying with the respective obligations, it would not be proper on my part to express any opinion. Further, the bank guarantee in question having been already invoked and encashed, in the peculiar facts of this case, the request of Mr.Vashi to direct the 1st respondent-Society to bring back the monies in Court cannot be acceded to. Such request cannot be considered and granted unless the Court records a prima facie opinion with regard to the breaches committed, if any, by the parties to the agreement. Any opinion being expressed even at this prima facie stage is likely to prejudice both sides at the arbitration. In these circumstances, the petitions can be disposed of with a direction to the 1st respondent- Society that in case an award is made in the arbitral proceedings in favour of the petitioner, it will abide by the same and bring back or pay the monies as directed thereunder with interest at such rate as the arbitral tribunal may determine subject ofcourse to the legal rights of the 1st respondent-Society. All contentions on merits of both sides are kept open. arbp-lod-11-33-11.doc 3 2 As far as the request to initiate suo mouto contempt proceedings against the respondent No.2 and respondent No.4 is concerned, I am satisfied from a reading of the affidavit filed by Mr.K.Narayan, Vice President and Senior Relationship Manager of Development Credit Bank Ltd., that the bank acted bonafide in releasing the payment under the subject bank guarantee in favour of the 1st respondent-Society. The affidavit makes it clear that the payment was made before the order was communicated to the bank either by the petitioner or the 1st respondent-Society. In fact, the order itself indicates that the representative of the Society had reached the bank prior to the petition being moved and in fact the payment may have been made by the time the order was passed. In these circumstances and in the facts peculiar to this case, I am of the opinion that no case for proceeding in contempt is made out. Request in that behalf is rejected. Petitions disposed off with aforesaid directions. No costs. (S.C.DHARMADHIKARI, J)