IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6247 OF 2010 M/s. Modern Anitasha Electronics -- PETITIONER V/s. The Cosmos Co-operative Bank Ltd. & Ors. -- RESPONDENTS Shri K.B. Adyanthaya, Advocate for Petitioner Ms. P.S. Cardoza, A.G.P. For State. CORAM : G.S. GODBOLE, J. DATE : 17th NOVEMBER, 2011 P.C. : 1. Heard Mr. Hardas for the Petitioner and Mr. Siddharth Karpe for the Respondent Bank. At the outset Mr. Karpe raised his preliminary objection that the Writ Petition is not maintainable by relying upon the Constitution Bench Judgment of Supreme Court in S.B.P. & Company V/s. Patel Engineering Ltd., AIR 2006 SC 450. He relies on the observations in Paragraph 44,45 and 46 (vi) of the said judgment and states that in the impugned order the Arbitrator has held that he has jurisdiction and considering the scheme of Section 16 of the Arbitration and Conciliation Act, 1996, as explained by the Supreme Court, the Writ Petition is not maintainable. ---2/-- : 2 : 2. On the other hand, Mr. Hardas states that by process of interpretation, the jurisdiction of the High Court under Constitution of India cannot be completely taken away. Mr. Hardas states that there are many documents on record which show that the Petitioner is not a member of Respondent Bank and hence, the proceedings of arbitration suffer from inherent lack of jurisdiction. He submits that from the letter written by the Respondent Bank to the Petitioner on 14th October, 2001 as also endorsements made on the application for membership it can be conclusively established that the Petitioner is not member of the Respondent Bank. He further apprehends that now the Respondent Bank may pay/deposit the deficit contribution to the share capital on behalf of the Petitioner and thereby try to show that the Petitioner is member of the Respondent Bank. In rejoinder it is submitted by Mr. Karpe that the Respondent Bank will not make any payment on behalf of the Petitioner as apprehended by Petitioner. This submission and statement is accepted. In view of the statement the apprehension of Mr. Hardas does not survive. 3. The question whether Petitioner is member of the Respondent Bank or not is a disputed question of fact and will ---3/-- : 3 : have to be determined by the arbitrator at the time of trial. Prima facie burden to show that the Petitioner is member of the Respondent Bank or continues to be member of the Bank will obviously be on Respondent Bank and both the parties can lead oral and documentary evidence in that regard which will have to be considered by the arbitrator. The present petition is therefore, premature and challenge is obviously a qua-timet action which cannot be entertained. The Judgment of the Supreme Court and particularly observations in SBP Company cited Supra and the observations in Paragraph 44 & 45 are clear. As stated above it is clarified that though Petitioner is free to raise the issue before arbitrator after the evidence is recorded and the arbitrator will consider the question of jurisdiction after the evidence is recorded on the basis of the evidence as may be produced and led by the parties before the arbitration. Any decision of the Arbitrator on the question of jurisdiction, either the preliminary decision which is impugned in this petition or the final conclusion can be challenged by the Petitioner in case the award is against the Petitioner. Subject to this clarification Writ Petition is dismissed. ( G.S. GODBOLE, J.)