SRJ IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1425 OF 2009 Navinchandra H. Somaiya & Others .. Petitioners V/s. Bank of India & Another .. Respondents. Mr. N.G.Thakkar, Sr.Counsel with Mr. Gaurav Joshi a/w. Mr. K.N.Bhandary i/b. M/s. Bhandary & Bhandary, for Petitioner. Ms. Farzana B. Kamdin with Ms. Swati Deshpande i/b. FZB & Associates, for Respondents. CORAM : F.I. REBELLO & R.V. MORE, JJ. DATED : JUNE 14, 2010 P. C.: 1. Rule. 2. Heard forthwith. 3. Petitioners are aggrieved by the order of the learned Arbitrator for closing the arbitration proceedings in so far as their claim is concerned without permitting them to file their claim statement. The point was raised that the learned Arbitrator had disclosed no reasons while rejecting the statement. In reply, Respondent Bank has placed on record that in fact, reasons had been given by the learned Arbitrator as to why he has rejected the claim of the Petitioner herein in filing their claim. SRJ 4. There was no Arbitration Agreement between the parties. However, an M.O.U. was entered into by which parties agreed to withdraw all Civil cases filed by them against each other. They also agreed to the appointment of Justice D.M. Rege (Retd.) as Sole Arbitrator and agreed that the plaint and the claim statement filed before the Civil Courts in the case mentioned in the annexure be treated as claim and replies before the Arbitrator and the Arbitration proceedings shall proceed accordingly. Nine suits filed by the Bank and one suit filed by Petitioner herein are listed in the said annexure. 5. It appears that in so far as the nine suits filed by the Bank, apart from the plaint, independently claim statements were filed as also replies were filed by the Petitioner herein. It may also be mentioned that in so far as the Petitioner’s claim is concerned, the Petitioner went on seeking time to file claim statement. As Justice D.M. Rege (Retd.) withdrew from the Arbitration, Justice R.G.Sindhakar (Retd.) has been appointed as a Sole Arbitrator. The Petitioner herein, thereafter prays that the plaint in the suit be treated as statement of claim. Reliance was placed on M.O.U. The learned Arbitrator proceeded on the same footings that from the very beginning the parties were directed to file their Written Statement. The learned Arbitrator further noted that at that stage to treat the plaint as claim would not be correct and accordingly, rejected the application/ claim against the present Petitioner. 6. In our view, merely because the parties have filed claim statement and replies thereof though in the M.O.U., the plaint was to be SRJ treated as a claim by itself cannot result in holding that the M.O.U. was not acted upon or detracted from. M.O.U. was the contract which contained the arbitral clause. It was open to the parties to have done so and once the parties had agreed, merely because the learned Arbitrator called upon them to file fresh claim or parties thereafter failed to do so, by itself would not estop the Petitioner herein from contending that in terms of M.O.U. the plaint in the suit be treated as the claim statement. In our opinion, therefore the learned Arbitrator misdirected himself at law or failed to exercise jurisdiction, while holding that parties had agreed to file claim statement and hence the Plaint cannot be treated as a claim. 7. Apart from that, Petitioner has also applied for removal of the Arbitrator. In our opinion, such a relief cannot be entertained in a Writ Petition. The Arbitration and Conciliation Act, 1996, contains provisions whereby parties can move at appropriate stage for removal of the Arbitrator, if they are so entitled. Once the Act has provided for the mechanism, in our opinion, Writ jurisdiction of this Court cannot be availed of. The view that a Writ Petition maintainable in M/s. Anuptech Equipments Pvt. Ltd., v/s. M/s. Gampati Co-operative Housing Society Ltd. AIR 1991, Bombay 219 was taken because there was no remedy available to party. In case, the proceedings are closed, that does not amount to an award. That view, thereafter, has been reiterated in the case of Vimal Madhukar Wasnik (Dr.) Nagpur v/s. Sole Arbitrator, the Hon’ble Shri Justice M.S.Deshpande & Others, reported in 2006(1) Bom.C.R.419. SRJ 8. In view of the above, in our opinion, the impugned order is liable to be set aside with the following directions:- (i) The plaint in Civil Suit No.1563 of 1985 be treated as the claim statement. It will be open to the Respondent herein, if they so desire, to file reply . (ii) After the reply is filed by the Respondent, the next steps would be to complete the discovery of documents in the present claim. (iii) Petitioner then to file affidavit of evidence in the present claim. (iv) After these steps have been completed, it will be open to the Respondents Bank, if they so desire, to seek to lead additional evidence in their claims, now pending before the learned Arbitrator and if learned Arbitrator, if such application is made, to decide the same according to the law. (v) It is only after these steps are completed, the cross examination of witness for the Respondent Bank be proceeded with. 9. Rule made absolute to the above extent, with no order as to costs. (R.V. MORE,J.) (F.I. REBELLO,J.) SRJ SRJ IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.161 OF 2010 IN SUIT NO.1425 OF 2009 Navinchandra H. Somaiya & Others .. Petitioners V/s. Bank of India & Another .. Respondents. Mr. N.G.Thakkar, Sr.Counsel with Mr. Gaurav Joshi a/w. Mr. K.N.Bhandary i/b. M/s. Bhandary & Bhandary, for Petitioner. Ms. Farzana B. Kamdin with Ms. Swati Deshpande i/b. FZB & Associates, for Respondents. CORAM : F.I. REBELLO & R.V. MORE, JJ. DATED : JUNE 14, 2010 P. C.: 1. Heard the parties. 2. Chamber Summons is allowed in terms of prayer clause (a). 3. Amendment to be carried out within two weeks from today. (R.V. MORE,J.) (F.I. REBELLO,J.) SRJ