1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.20 OF 2009 IN WRIT PETITION NO.1533 OF 2007 Rajesh Shah ...Appellant V/s. Hemendra V .Kothari & Ors. ..Respondents ---- Mr. S.U.Kamdar Sr.Advocate with Ashish Kamat i/by Kartikeya & Associates for the appellant. ---- Coram : D.K.Deshmukh & R.S.Mohite,JJ Date : 25th June, 2009. P.C. 1. This appeal is directed against the order of the learned single Judge rejecting Writ petition filed by the appellant. The relevant facts are that the petitioner had invoked arbitration clause in an agreement, because of which, the Court appointed an Arbitrator by consent of both the parties. The Court also continued ad-interim order in favour of the petitioner. The Arbitrator on 30.9.2006 granted time till 15.11.2006 for filing statement of claim. At this juncture it should be noted that the Arbitral proceedings really commence only after statement of claim is filed. Within the time allowed by the Arbitrator, no statement of claim is filed. Then a letter was sent to 2 the Arbitrator seeking three weeks extension for filing statement of claim. Arbitrator did not communicate anything. Therefore, the petitioner could have assumed that the extension as sought by him is deemed to have been granted by the Arbitrator and should have filed his statement of claim within the time that he was seeking. But again no statement of claim was filed. Ultimately, the Arbitrator getting fed up with the attitude of the appellant, terminated the arbitral proceedings in February-2007. That order was subjected to challenge in a Writ petition before the learned single Judge. That Writ petition was registered as Writ Petition No.1533 of 2007. Principal grievance was that in view of the provisions of Section 25-A of the Arbitration Act the Arbitrator was obliged to give show cause notice asking the appellant to show cause why the proceedings should not be terminated for failure of the appellant to file his statement of claim. In our opinion, even assuming that the order terminating arbitral proceedings for failure of the claimant to file statement of claim can be made only after issuing show cause notice to the claimant and after giving him an opportunity to show sufficient cause, learned single Judge was perfectly justified in not entertaining the petition. A petition under Article 226 of the Constitution of India is not a remedy of right, it is an extra ordinary remedy provided by the Constitution of India. The Court exercises that jurisdiction when it finds that the action in relation to which grievance is made, has resulted in failure of justice. In the present case the appellant himself was a claimant. He invoked the arbitration clause. He got the arbitrator appointed. He also got the interim order continued against the respondents. While enjoying interim order, he did not care to file his statement of claim during the time granted by the Arbitrator. He did not file his statement of claim even during the period he had asked for. If this attitude of the 3 appellant is seen in the background of the fact that he is enjoying interim order, in our opinion, the learned single Judge was perfectly justified in saying that it will not be in the interest of justice to entertain the petition. What is further pertinent to be noted is that it appears from the record that except for the arbitration proceeding, the suit for the same relief is also time barred. Therefore, continuation of the proceedings against the respondents would have meant continuation of the claim which was otherwise time barred against the respondents. In our opinion, continuation of arbitral proceedings even in the face of the attitude adopted by the appellant would have resulted in prejudices to the respondents. In our opinion, it cannot be said that by declining to entertain the petition, learned judge has not acted in the interest of justice. In our opinion, order of the learned judge is in the interest of justice and no interference is called for. Appeal stands rejected. (D.K.DESHMUKH,J) ( R.S.MOHITE, J. ) 4