R.D. DHANUKA, J.

1. By this petition filed under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) the petitioners have prayed for leave to file this petition for raising their objections to the impugned award dated 19th March, 2013 and have prayed that the said award be quashed and set aside. The learned arbitrator is impleaded as respondent no. 2. The petitioner has also prayed that this court shall direct the learned arbitrator to deposit in this court all the records, paper and proceedings of the arbitration between the respondent no. 1 (original claimant) and the society i.e. Apsara Coop. Hsg. Soc. Ltd. By the impugned award the learned arbitrator had declared that the MOU dated 30th April, 2008 executed between M/s. Heritage Enterprises (original claimant in arbitration proceedings and respondent no. 1 herein) and Apsara Coop. Hsg. Soc. Ltd. is valid subsisting, enforceable and binding upon those parties and that the claimant is entitled to specific performance thereof.

2. At the threshold Mr. Samdani learned senior counsel for the respondent no. 1 raises a preliminary objection to the maintainability of this petition. In view of the issue of maintainability raised by the learned senior counsel for respondent no. 1. I have heard the learned senior counsel for the petitioner as well as the respondent no. 1 on the issue of maintainability of this petition filed by the petitioners.

3. Mr. Samdani learned senior counsel for the respondent no. 1 submits that the memorandum of understanding which recorded an arbitration agreement was between the respondent no. 1 developer and M/s. Apsara Co-op. Hsg. Soc. Ltd. a society registered under the provisions of Maharashtra Co-operative Societies Act, 1960. The said society consists of 24 tenements allotted to 24 persons who are members of the said society. Petitioners are three of the members of the said society. Learned senior counsel submits that the petitioners were not parties to the said memorandum of understanding which contained arbitration agreement. It is submitted that the society had passed a resolution pursuant to which dispute was referred to arbitration. The petitioners were not parties to the arbitration proceedings as they were not parties to the arbitration agreement.

4. It is submitted that since the petitioners were not parties to the arbitration agreement, petitioners cannot file a petition under section 34 of the Arbitration and Conciliation Act, for impugning an arbitral award. In support of this submission learned senior counsel invited my attention to section 34 and also definition of party defined under section 2(1) (h) of the Act. It is submitted by the learned senior counsel that only a party to the arbitration agreement can file a petition under section 34 of the Act and not an outsider. It is submitted that section 34 has to be read with section 2(1)(h) of the Act. There is no general power under section 34 of the Act to permit a person who is not a party to the arbitration agreement to file a petition for impugning an arbitral award. It is submitted that the said Apsara Co. Hsg. Soc. Ltd. who was party to the arbitration agreement and also before the learned arbitrator has accepted the arbitral award by passing a resolution. The impugned award has been acted upon by the society. The petitioners who are members of the society thus cannot be allowed to impugn the arbitral award as they were not parties to the arbitration agreement.

5. Learned senior counsel submits that this court has no power to grant any leave to the petitioners to file arbitration petition and to impugn the arbitral award. It is submitted that this is not an appellate proceeding in which a party aggrieved can apply for leave to file an appeal. Learned senior counsel placed reliance on section 36 of the Mah. Coop. Societies Act, 1960 and submits that the society having registered is a body corporate and thus society only can be s