Bombay High Court
Rajesh S/O Krishnanarayan ... vs Central Board For Workers ... on 20 December, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 486/2016
Rajesh S/o Krishnanarayan Tripathi,
Aged about 44 years, Occ. Business,
Proprietor, Online Computers, R/o
Plot No. 46, Friends Colony, Katol Road,
Nagpur ..... PETITIONER
...V E R S U S...
1] Central Board For Workers Education,
Acting through its Director, North
Ambazari Road, Nagpur
2] Shri S.G. Gautam,
Additional Commissioner, Nagpur &
Chairman, Industries Facilitation Council,
Nagpur 440 001
3] Shri Vikas Jain,
Joint Director of Industries, Nagpur
Region, Nagpur and Member Secretary,
Industries Facilitation Council, Civil
Lines, Nagpur 440 001
4] Shri P.G. Bhagwatkar,
Zonal Manager, Bank of India, Nagpur (Deleted as per Hon'ble
and Member, Industries Facilitation Registrar's Order dated
Council, Civil Lines, Nagpur 440 001 27/01/2017)
5] Shri Prafulla Doshi,
President, Vidarbha Industries
Association and Member, Industries
Facilitation Council, Civil Lines,
Nagpur 440 001
6] Capt. Randhir,
Representing MIDC, Industries
Association, Nagpur and Member
Secretary, Industries Facilitation
Council, Civil Lines,
Nagpur 440 001 ..... RESPONDENTS
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Shri A. V. Bobde, Adv with Shri R.S. Akbani, Adv for the petitioner
Shri A.M. Joshi, Advocate for the respondent no. 1
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 20 December, 2017
th
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The petitioner has challenged the order passed by the
learned Principal District Judge condoning delay in filing the
petition under Section 34 (2) of the Arbitration and Conciliation
Act, 1996 (hereinafter referred as "the Act of 1996"). The
challenge is not on the point that the delay in filing the application
under Section 34 (2) of the Act of 1996 is not sufficiently
explained but is on the point that in the application filed under
Section 34 (2) of the Act of 1996, the award passed by the
Industries Facilitation Council is challenged and therefore the
mandate of Section 19 of the Micro, Small and Medium
Enterprises Development Act, 2006 (hereinafter referred as "the
Act of 2006") should have been complied with by the respondent
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no. 1-Board and 75% of the amount of award should have been
deposited within the time prescribed by Section 34 (3) of the Act
of 1996.
3] The Industries Facilitation Council has passed an award
in favour of the petitioner and against the respondent no. 1 on
21/07/2014. The respondent no. 1 has filed an application under
Section 34 (2) of the Act of 1996 on 08/11/2014. The application
under Section 34 (2) of the Act of 1996 is filed after the period
prescribed by Section 34 (3) of the Act of 1996. It is undisputed
that till the application under Section 34 (2) of the Act of 1996
alongwith the application praying for condonation of delay were
filed, the respondent no. 1 had not deposited any amount as per
the award. The respondent no. 1 filed an application on
07/01/2015 seeking permission to deposit 75% of the amount of
award. This application is allowed on 09/01/2015 and the
respondent no. 1 deposited the amount of 75% of the award on
14/01/2015.
4] The learned Principal District Judge has condoned the
delay in filing application under Section 34 (2) of the Act of 1996
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holding that the provisions under Section 19 of the Act of 2006
will not be attracted while considering/entertaining the
application praying for condonation of delay.
5] The learned advocate for the petitioner submits that
Section 19 of the Act of 2006 would be attracted even while
considering the application for condonation of delay and to
support his submission, reliance is placed on the judgment given
by the Madras High Court in the case of Goodyear India Ltd., rep.
by its Zonal Manager, A. Baburaj vs Nortan Intec Rubber (P) Ltd.
and another reported in 2013 (5) CTC 25.
Per contra, the learned advocate for the respondent no.
1 has submitted that Section 19 of the Act of 2006 would not be
attracted at the stage of consideration of the application for
condonation of delay and this argument is supported by the
judgment given by this Court in the case of E-Square Leisure Pvt.
Ltd., vs K.K. Dani Consultants and Engineers Pvt. Ltd. Reported in
2013 (3) Mh.L.J. 24.
6] After hearing, I find that the learned Principal District
Judge has rightly relied on the judgment given by this Court in the
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case of E-Square Leisure Pvt. Ltd (supra). It cannot be said that the
learned Principal District Judge has committed any error of
jurisdiction by deciding the application filed by the respondent no.
1 praying for condonation of delay, though the respondent no. 1
had not deposited 75% of the amount of award within the time
prescribed by Section 34 (3) of the Act of 1996. Whether Section
19 of the Act of 2006 is attracted, will have to be examined at the
time when the application under Section 34(2) of the Act of 1996
is considered.
At this stage, submission is made on behalf of the
petitioner that the learned Principal District Judge, after
condoning the delay, has entertained the application filed by the
respondent no. 1 under Section 34 (2) of the Act of 1996 and
notice of the proceedings is issued to the petitioner. The learned
advocates for the petitioner and the respondent no. 1 have
submitted that various interlocutory applications have been filed
in the application filed by the respondents under Section 34 (2) of
the Act of 1996 and they are being considered by the learned
Principal District Judge.
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7] As recorded earlier, the submission on behalf of the
petitioner is that as per Section 34(3) of the Act of 1996, the
application for setting aside the award is required to be filed
within three months from the date on which the party making the
application has received the arbitral award, or if the request has
been made under Section 33 of the Act of 1996, then from the
date on which that request is disposed by the Arbitral Tribunal,
and that as per the proviso below sub-section (3) of Section 34 of
the Act of 1996 the Court can entertain the application for setting
aside the award, after the period of three months as provided by
sub-section (3) of Section 34 of the Act of 1996, provided that the
application is filed within further period of 30 days and the Court
is satisfied that the applicant was prevented by sufficient cause
from making the application within the period of three months. It
is argued that therefore, the mandate of Section 19 of the Act of
2006 regarding deposit of 75% of the amount of decree or award
has to be complied with within the period prescribed by Section
34(3) of the Act of 1996. It is argued that in the present case the
amount required to be deposited as per Section 19 of the Act of
2006 is not deposited within the time prescribed by Section 34(3)
of the Act of 1996 and therefore, the application filed by the
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respondent No.1 under Section 34(2) of the Act of 1996 cannot be
entertained.
8] On going through the documents placed on record of
the petition, I find that the learned Principal District Judge has not
adverted to these aspects. There is no consideration whether the
application filed by the respondent no. 1 under Section 34 (2) of
the Act of 1996 can be entertained as the respondent no. 1 has not
deposited 75% of the amount of award within the time prescribed
by Section 34 (3) of the Act of 1996 and within the extended time
as per the proviso below Section 34 (3) of the Act of 1996. The
learned Principal District Judge is under an obligation to consider
whether the application filed by the respondent no. 1 under
Section 34 (2) of the Act of 1996 can be entertained or not and
this consideration has to be at the inception.
9] In view of the above, the following order is passed:-
O R D E R
1] The order passed by the learned
Principal District Judge condoning the delay in
filing the application under Section 34 (2) of the
Act of 1996 is maintained.
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2] The learned Principal District Judge
shall decide the point whether the application filed
by the respondent no. 1 under Section 34 (2) of
the Act of 1996 can be entertained though the
deposit as required by Section 19 of the Act of
2006 is made beyond the period prescribed by
Section 34(3) of the Act of 1996. This point shall
be decided before proceeding in the matter further.
The writ petition is disposed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
