Judgement SUNIL KUMAR SINHA, J. :- The petitioner is a company registered under the Companies Act, 1956. It proposed to establish a coal based power plant of 1200 MW capacity, in phases, near Korba in Chhattisgarh. Since in a coal based power plant, requirement of coal is a must, therefore, the petitioner approached the South Eastern Coal Fields Ltd. (for short 'SECL'), which is a subsidiary of Coal India Limited, and finally the petitioner and the SECL entered into a coal supply agreement dated 31-12-2005. The petitioner pleaded that as per condition given in clause 2.4 of the agreement it achieved financial closure for the first 300 MW Unit on 20-9-2005 and the same was informed to the respondents/SECL vide letter dated 4-2-2006. In further compliance of the conditions of the agreement, the petitioner gave bank guarantees of Rs. 5,87,50,000/- and Rs. 1,77,50,000/- on account of earnest money (EM) deposit as required by SECL and work of the establishment of the power plant was going on. The petitioner further pleaded that all of a sudden, vide letter dated 27/28-2-2007, the SECL informed the petitioner that the agreement has become liable for termination on certain grounds, which are : (a) The SECL has not received information of financial closing of the plant within one year of the signature date/within one week after it occurs (Refer clause 2.3 and 2.4); (b) It has not received intimation of all necessary requisite sanctions, approvals, licenses, consents including environmental clearance in respect of the plaint within one year of signature date (Refer clause 2.3 B). (c) It has not received the bank guarantee towards commitment advance within one year from the signature date (Refer clause 2.6 B) and (d) It has not received intimation about "Four Month Window" within 30 days of the financial closing (Refer clause 4.3 B), (it may be added that financial closing itself was necessary latest by 31-12-2006). The petitioner replied to the same vide a letter dated 28-2-2007, wherein the petitioner apprised the respondent that entire information sought from the petitioner was already given to the respondent but once again the copies of the same are being appended with the letter. The petitioner replied to the same vide a letter dated 28-2-2007, wherein the petitioner apprised the respondent that entire information sought from the petitioner was already given to the respondent but once again the copies of the same are being appended with the letter. The case of the petitioner is that the reply filed against the notice was kept for consideration and in the meantime, the petitioner also asked about the exact amount of the bank guarantee to be submitted towards the commitment advance. The SECL vide its letter dated 7-3-2007 directed the petitioner to furnish the bank guarantee of Rs. 15,30,000,00/- towards the commitment advance, which the petitioner fulfilled on 8-3-2007. Thereafter, vide a letter dated 8-1-2008, the petitioner requested the SECL to commence supply of coal from June, 2008 onwards but the respondents (SECL) abruptly issued an order dated 29-2-2008 to the petitioner, by which, it was informed that the agreement dated 31-12-2005 was terminated and the BGs towards EMD/Security deposit/Commitment Advance are invoked. It is at this stage the writ petition was filed and the order dated 29-2-2008 terminating the agreement dated 31-12-2005 was challenged in the writ petition. 2. Mr. Shanti Bhushan, learned Senior Advocate, appearing for the petitioner, referring to the letter dated 28-2-2007 (Annexure-P/9), argued that all the grounds raised by the SECL in its letter dated 27/ 28-2-2007 were fully explained to them, but the SECL did not pay any attention to the contents of the letter. He would submit that it was informed to the SECL that the petitioner has achieved the financial closure for the 300 MW Unit on 20-9-2005, which was informed to the SECL on 4-2-2006. The petitioner had also obtained all necessary approvals for the project and the bank guarantee of Rs. 7,65,00,000/- was also furnished at the time of signing coal supply agreement. The petitioner company has also expressed that the company had written a letter dated 4-2-2006 requesting for waiver of Payment Advance and the company is awaiting for a favourable response. However the company is ready to furnish the bank guarantee towards commitment advance at the earliest. With regard to Four Month Window, the petitioner had informed that the project construction had made substantial progress and would be requiring coal dispatches during the Four month Window commencing from 1st April, 2008 to 31st July, 2008. However the company is ready to furnish the bank guarantee towards commitment advance at the earliest. With regard to Four Month Window, the petitioner had informed that the project construction had made substantial progress and would be requiring coal dispatches during the Four month Window commencing from 1st April, 2008 to 31st July, 2008. He also argued that the termination of the agreement amounts to an arbitrary order passed by the authority of public undertaking which is 'State' within the meaning of Article 12 of the Constitution and is therefore in contravention of Article 14 of the Constitution. 3. Mr. Vivek Tankha, learned senior Advocate, appearing for the respondents, while justifying the grounds for termination of the contract, mainly argued that there is an arbitration clause in the agreement dated 31-12-2005 and the petitioner without taking recourse under the provisions contained in the said clause, has rushed to this Court invoking extraordinary jurisdiction under Article 226 of the Constitution, therefore, in view of the above this petition would not be maintainable. He would submit that the petitioner herein has filed the writ petition for enforcing a contract qua contract and praying for enforcing the terms and conditions of the contract which cannot be decided by the High Court. He submitted that it is also well settled that the High Court would not entertain a writ petition involving disputed questions of fact particularly when the alternative remedy by way of recourse to arbitration is available to the petitioner. 4. The first question raised before us is whether in the facts and circumstances of the case, a writ petition under Article 226 of the Constitution would lie or the petitioner's remedy lies elsewhere in terms of the arbitration clause admittedly present in the agreement between the parties? 5. Arguing the point of jurisdiction, Mr. Shanti Bhushan, learned Senior Advocate, firstly referred to the judgment of the Apex Court rendered in the matter of LIC of India v. Consumer Education and Research Centre, (1995) 5 SCC 482 : (AIR 1995 SC 1811). He took us to Para 24 to 29 of the judgment, in which the earlier decided cases are quoted by the Apex Court. Shanti Bhushan, learned Senior Advocate, firstly referred to the judgment of the Apex Court rendered in the matter of LIC of India v. Consumer Education and Research Centre, (1995) 5 SCC 482 : (AIR 1995 SC 1811). He took us to Para 24 to 29 of the judgment, in which the earlier decided cases are quoted by the Apex Court. They are as follows : In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 SC 1642), it was held by the Apex Court that "The Corporation must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such Corporation. Every activity of public authority must be informed by reasons and guided by the public interest. All exercises of discretion or power by public authority must be judged by that standard. In that case when the building owned by the port trust was exempted from the Rent/ Act, on terminating the tenancy for development when possession was sought to be taken, it was challenged under Article 226 that the action of the port trust was arbitrary and no public interest would be served by termining the tenancy. In that context, the Apex Court held that even in contractual relations the Court cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium in imperio. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action." In Mahabir Auto Stores v. India Oil Corpn. (1990) 3 SCC 752 : (AIR 1990 SC 1031), it was held by the Apex Court that "The State when acting in its executive power, enters into contractual relations with the individual, Article 14 would be applicable to the exercise of the power. The action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the Governmental action even in the matter of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. The action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the Governmental action even in the matter of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/Instrumentality in dealing with citizens. Even though the rights of the citizens, therefore, are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play and natural justice, equality and non-discrimination. It is well settled that there can be "malice in law". It was also further held by the Apex Court that whatever be the act of the public authority in such monopoly or semimonopoly, it must be subject to rule of law and must be supported by reasons and it should meet the test of Article 14." 5.3 In Kumari Shrilekha Vidyarthi v. State of U. P. (1991) 1 SCC 212 : (AIR 1991 SC 537) the Apex Court in para 22 pointed out that "The private parties are concerned only with their personal interest but the public authority are expected to act for public good and in public interest. The impact of every action is also on public interest. It imposes public law obligation and impresses with that character, the contracts made by the State or its instrumentality (SCC pp. 236- 37, para 22) : "It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions." 5.4 In Food Corpn. of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 : AIR 1991 SC 1601 (SCC at p. 76 in para 8) the Apex Court held that : "the mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process." 5. In Sterling Computers Ltd. v. M and N Publications Ltd. (1993) 1 SCC 445 : (AIR 1996 SC 51) (SCC at p. 464, para 28), it was held by the Apex Court that "Even in commercial contracts where there is a public element, it is necessary that relevant considerations are taken into account and the irrelevant consideration discarded." 5.6 In Union of India v. Graphic Industries Co. (1994) 5 SCC 398 : AIR 1995 SC 409, the Apex Court held that "Even in contractual matters public authorities have to act fairly,; and if they fail to do so approach under Article 226 would always be permissible because that would amount to violation of Article 14 of the Constitution." 5.7 In General Assurance Society Ltd. v. Chandumull Jain, AIR 1966 SC 1644, the Apex Court held that "The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of Article 14. While exercising the power under Article 226 the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down. The actions of the appellants bear public character with an imprint of public interest element in their offers regarding terms and conditions mentioned in the appropriate table inviting the public to enter into contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element. The Apex Court said, therefore, there would be no hesitation to hold that the writ petition is maintainable to test the validity of the conditions laid in Table 58 term policy and the party need not be relegated to a civil action." 6. Mr. Shanti Bhushan, then cited the judgment of ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553. The principles laid down in this matter regarding the maintainability of the writ petition in contractual matters are : (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 7. He then referred to the judgment of the Apex Court rendered in the matter of Kumari Shrilekha Vidyarthi (supra) and deeply canvassed that if it is shown that the act of the State or its instrumentality is arbitrary and, therefore violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. 8. With reference to the availability of the arbitration clause in contractual matters, learned senior counsel then cited the judgment of Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107 : (AIR 2003 SC 2120). The Apex Court held in the said judgment that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. It was laid down that in an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the said case, there was an arbitration clause in the agreement and the High Court took the view that since there was a remedy by way of recourse to arbitration, the writ petition would not be maintainable. The Apex Court held that the facts and circumstances of the case would show that the petitioners' licence was cancelled relying on an irrelevant and non-existent fact and the case of the petitioners attract applicability of the first two contingencies. The Apex Court observed that the petitioners' dealership, which was their bread and butter, came to be terminated for an irrelevant and nonexistent cause, therefore, in such circumstances, the petitioners should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. 9. The Apex Court observed that the petitioners' dealership, which was their bread and butter, came to be terminated for an irrelevant and nonexistent cause, therefore, in such circumstances, the petitioners should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. 9. We have carefully considered the arguments advanced by the Counsel for the petitioner. We have no doubt that if an action of the State or its instrumentality or the authority or a body, which is State within the meaning of Article 12, is violative of the equality clause of Article 14, a writ petition would be maintainable, notwithstanding the fact that the pith of the matter was contractual. But if disputed questions of fact and law are raised requiring detailed examination in depth, may be that some evidence, oral or documentary, also required, the appropriate course would be availing of the other remedy than a writ petition filed under Article 226. 10. In the matter of ABL International Ltd. (supra), while laying down the above principles, the Apex Court added that while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 is plenary in nature and the High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions and this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. In the said judgment while laying down the principles regarding entertaining a writ petition in contractual matters, the Apex Court has referred to the judgment rendered in the matter of State of U. P. v. Bridge and Roof Co. (India) Ltd., AIR 1996 SC 3515, in which it was held as under : "Further, the contract in question contains a clause providing inter alia for settlement of disputes by reference to arbitration. (India) Ltd., AIR 1996 SC 3515, in which it was held as under : "Further, the contract in question contains a clause providing inter alia for settlement of disputes by reference to arbitration. The arbitration can decide both questions of fact as well as questions of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt that remedy and invoke the extraordinary jurisdiction of the High Court under Article 226. The existence of an effective alternative remedy - in this case, provided in the contract itself - is a good ground for the Court to decline to exercise its extraordinary jurisdiction under Article 226." 11. The Supreme Court categorically observed in ABL International Ltd. judgment that since there was an arbitration clause in Bridge and Roof Companies' case (supra), the Court refused to invoke the remedy under Article 226 of the Constitution in the said matter. Whereas, in ABL's case, there was no such arbitration clause in the contract and in this context, it was observed by the Apex Court that it is well known that if the parties to a dispute had agreed to settle their dispute by an arbitration and if there is an agreement in that regard, the Courts will not permit recourse to any other remedy without invoking the remedy by way of arbitration, unless of course both the parties to the dispute agree on another mode of dispute resolution. 12. Therefore, in the realm of contractual matters a line can be drawn and they may be classified in two groups. First, in which, there is an agreement of arbitration between the parties and the second, in which, there is no such agreement and the disputes may be dealt with by the civil Courts. In almost all the cases cited by Mr. Shanti Bhushan, except the one i.e. Harbanslal's (supra), there were no arbitration agreements and in such situation, the writ petitions were entertained and were held to be maintainable. 13. In Harbanslal's case, the Apex Court has used the words like "in appropriate cases". These words have great significance. In addition to such words, the Apex Court has given three contingencies, which we have referred to above. 13. In Harbanslal's case, the Apex Court has used the words like "in appropriate cases". These words have great significance. In addition to such words, the Apex Court has given three contingencies, which we have referred to above. If we examine the case in hand with reference to the contingencies referred to in the matter of Harbanslal's, we find that none of the contingencies are there in this matter, as there is no question of enforcement of any of the fundamental rights, neither there is failure of principles of natural justice nor the present is a case where there is a question of order to proceedings being wholly without jurisdiction nor the vires of an Act is challenged. The Harbanslal's case is distinguishable because the Apex Court found it to be an appropriate case in the prevailing facts and circumstances as the first two contingencies were found attracted and it was observed by the Apex Court that it was a case in which the bread and butter of the petitioners came to be terminated for an irrelevant and non-existent cause and perhaps in all these prevailing circumstances only, the Apex Court found it to be an appropriate case for exercising of writ jurisdiction by passing the remedy available under the arbitration clause. 14. The judgment of Harbanslal's (supra) was later cited in the matter of Mrs. Sanjana M. Wig v. Hindustan Petro Corporation Ltd., AIR 2005 SC 3454. It was argued that a public law remedy cannot be held to be not available to a person aggrieved only on the ground of existence of an arbitration clause; although fundamental right at the hands of the State is alleged to have been breached. It was also argued that from the chain of events, it would appear that the respondent had condoned the lapse on the part of the appellant in the matter of alleged violations of the conditions of the agreement and only insisted on payment of the alleged dues in terms of the notice issued on that behalf and strong reliance was placed on Harbanslal's case. On the above arguments in the matter, the Apex Court observed vide paras 16 and 17 as under : "16. On the above arguments in the matter, the Apex Court observed vide paras 16 and 17 as under : "16. We may, however, notice that the Bench did not notice the earlier decisions in M/s. Titagarh Paper Mills Ltd. v. Orissa State Electricity Board, (1995) 2 SCC 436 and in M/s. Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board, (AIR 1976 SC 127). However, there cannot be any doubt whatsoever that the question as to when such a discretionary jurisdiction is to be exercised or refused to be exercised by the High Court has to be determined having regard to the facts and circumstances of each case wherefor, no hard and fast rule can be laid down." "17. A three Judge Bench of this Court in State of H. P. v. Gujarat Ambuja Cement Ltd. (2005 AIR SCW 3727) : AIR 2005 SC 3936, referring to Harbanslal Shania (supra) held : "There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition." 15. We may note that after termination of the earlier agreement between the parties by the impugned order dated 29-2-2008, the petitioner and the SECL has re-entered into a subsequent coal supply agreement on 25th of June, 2008 and they have also signed a side letter to the agreement on the same day to place on record the facts relating to termination of agreement dated 31-12-2005 and the direction given by this Court in order dated 30-4-2008 and the SECL has already started the coal supply to the petitioner's power plant in compliance thereof. Therefore, now the question remains for decision is the refund of amount(s) relating to earnest money/security deposit/ commitment advance. Therefore, now the question remains for decision is the refund of amount(s) relating to earnest money/security deposit/ commitment advance. The SECL has alleged the breach of contract by the petitioner elaborating the grounds taken in the termination order by factually supporting them with their averments in so many words. The arbitration clause of the agreement is in the following manner : "11.2 Arbitration Except as otherwise provided in this agreement, any disagreement, dispute, controversy or claim arising out of or relating to this agreement or the interpretation hereof, any arrangements relating to this agreement or contemplated in this agreement or the breach, termination or invalidity of this agreement shall be settled exclusively and finally by arbitration. It is specifically understood and agreed that any disagreement, dispute or controversy which cannot be resolved between the parties, including without limitation any matter relating to the interpretation of this agreement, shall upon election by either party be submitted to arbitration irrespective of the magnitude hereof, the amount in dispute or whether such disagreement, dispute or controversy would otherwise be considered justifiable or suitable for resolution by a Court or arbitral tribunal. Should either party submit a request to the arbitrators to determine whether and when the termination of the agreement had occurred, each party's obligations and rights under this agreement including, for the avoidance of doubt, the rights of each party set out in clause 9.2(A) shall be continuing and remain in full force during the term of the arbitration proceedings until an award stating the occurrence and timing of termination of the agreement has been rendered." The subsequent clause i.e. 11.3 of the agreement further provides the Arbitration Rules. We find that this completely secures the rights of the parties and it is an efficacious remedy for settlement of the disputes raised between the parties. We find that this completely secures the rights of the parties and it is an efficacious remedy for settlement of the disputes raised between the parties. We find that all the contentions raised against the petitioner's claims to justify the termination of the contract by the SECL by referring various clauses of the agreement seems to be covered by the arbitration agreement and in the prevailing facts and circumstances of the case, particularly in light of the subsequent development by which another fuel supply agreement has been entered into between the parties and the supply of the coal has began and no public interest is likely to suffer, which was on account of likely stoppage of the work of power project of the petitioner and none of the contingencies laid down by the Apex Court in Harbanslal's case (supra) is existing in the matter, there is no reason why the petitioner should not pursue the remedy of arbitrator which it has solemnly accepted under clause 11.2 of the agreement and insist to invoke the extraordinary jurisdiction of the High Court under Article 226 to determine the questions which really form the subject-matter of the arbitration agreement. 16. We, therefore, decline to pass any order on merits in this writ petition and hold that in the prevailing facts and circumstances, a writ petition under Article 226 of the Constitution would not lie and the petitioner's remedy lies elsewhere in terms of the arbitration clause referred to above. 17. Now we shall consider the technical question raised by Mr. Shanti Bhushan, learned senior counsel for the petitioner, that once the High Court has entertained the petition for hearing, therefore, the same should be decided on merits. In this regard, he has referred to the three decisions of the Apex Court namely L. Hirday Narain v. Income-tax Officer, Bareilly, AIR 1971 SC 33; S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, (2004) 7 SCC 166 : AIR 2004 SC 2421 and Durga Enterprises, (P) Ltd. v. Principal Secretary, Govt. of U. P., (2004) 13 SCC 665. 18. In the mater of L. Hirday Narain, the petitioner instead of invoking a remedy under the Income-tax Act against an order passed under Section 35, moved a petition in the High Court and the High Court entertained that petition. of U. P., (2004) 13 SCC 665. 18. In the mater of L. Hirday Narain, the petitioner instead of invoking a remedy under the Income-tax Act against an order passed under Section 35, moved a petition in the High Court and the High Court entertained that petition. In the said situation, the Apex Court said that if the High Court had not entertained his petition, he could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. It is in this situation, the Apex Court observed that the High Court was not justified in dismissing the writ petition as not maintainable, which was entertained and was heard on merits. The matter is distinguishable as the challenge under the writ petition was to a statutory order the validity of which could have been examined either by the revisional authority or by the High Court. 19. In the matter of S.J.S. Business Enterprises (P) Ltd., the factual matrix is quite distinguishable. In the said case, admittedly, the appellant had withdrawn the suit 2 weeks after the suit had been filed and the appellant elected to pursue its remedies only under Article 226 and the pleadings were also complete before the High Court and reasonable time has elapsed. It is in this situation, the Apex Court said that when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable, then the petition would have been decided on merits. It was not a case having an arbitration agreement. The party has firstly elected to go to civil Court and then it has come to writ Court and the writ Court has not taken the view that the writ petition was otherwise not maintainable. In the present case, we have taken a view that the writ petition was not maintainable, therefore, question of deciding the petition on merit on the above logic does not arise. 20. The last judgment i.e. in the matter of Durga Enterprises (P) Ltd. the facts are entirely different. In the present case, we have taken a view that the writ petition was not maintainable, therefore, question of deciding the petition on merit on the above logic does not arise. 20. The last judgment i.e. in the matter of Durga Enterprises (P) Ltd. the facts are entirely different. In the said case, the writ petition was pending since last 13 years and then it was disposed of on the ground of existence of alternative remedy. Examining the propriety, the Apex Court held that the High Court having entertained the writ petition in which the pleadings were also complete ought to have decided the case on merits, instead of relegating parties to a civil suit. Again, we will say that it was also not a matter covered by arbitration agreement, which might have been an elected remedy between the parties. Therefore, this is also not helpful to the petitioner. Moreover, there may be many reasons to entertain a petition at the preliminary stage including that of wisdom of the Court at a particular stage when the real objections are not there on record, particularly with reference to the maintainability of the petition. But, when the returns are filed and the legal objections are taken in this regard and on due consideration of the submissions of the parties, a Court gets later satisfied that the writ petition would not be maintainable in the prevailing facts and circumstances of the case or to expedite the hearing would not be possible for many ancillary reasons the Court cannot be bound by taking the stand that it should decide the petition on merits, even, if it was otherwise not maintainable. In our considered opinion that would not be the correct position of law. If the writ petition was otherwise not maintainable and it was otherwise not possible to expedite the hearing on merits, the petition has to be dismissed without passing any orders on merits. 21. In this view of the matter, we find substance in the objection raised on the ground of maintainability of the writ petition. 22. For the foregoing reasons, the petition deserves to be and is accordingly dismissed. 23. It shall be open to the parties to raise their dispute(s) before the Arbitrator(s) in terms of clauses 11.2 and 11.3 of the arbitration agreement. 24. 22. For the foregoing reasons, the petition deserves to be and is accordingly dismissed. 23. It shall be open to the parties to raise their dispute(s) before the Arbitrator(s) in terms of clauses 11.2 and 11.3 of the arbitration agreement. 24. Before parting with the order we may make it clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the case. The dispute raised by the parties shall be adjudicated by the Arbitrator(s) on its own merits in accordance with law. 25. No order as to costs(s). Petition dismissed.