Shaw Wallace And Company Limited ... vs Supra Medicate Private Limited ...
2021 Latest Caselaw 3063 Bom

                                                                              (9) CRA-2-19.doc

BDP-SPS

  Bharat
  D.
  Pandit
  Digitally signed
  by Bharat D.
  Pandit
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION
  Date:
  2021.02.20
  13:23:13 +0530




                                   CIVIL REVISION APPLICATION NO. 2 OF 2019

                     Shaw Wallace and Company Limited
                     and Anr.                                    ..... Applicants.
                                       V/s
                     Supra Medicate Private Limited              ..... Respondent.
                     ---
                     Mr. Vikram Sathaye a/w Rupani i/b Alpha Chambers for the
                     Applicants.
                     Mr. Satyajeet P. Dighe for Respondent No.1.
                     ----
                                       CORAM: NITIN W. SAMBRE, J.

                                         DATE:    FEBRUARY 16, 2021

                     P.C.:-

                     1]       Special Civil Suit No.331 of 2004 came to be initiated by the

Respondent/Plaintiff claiming certain relief under the Interest on

Delayed Payment to Small Scale and Ancillary Industrial Undertakings

Act, 1993 (hereinafter referred to as "the Act of 1993" for the sake of

brevity). The Applicants/Defendants to the said suit moved an

application under Order 7 Rule 11(d), thereby pointing out that the

Act of 1993 was replaced in 2006 by the Micro, Small and Medium

Enterprises Development Act, 2006 (hereinafter referred to as "the Act

of 2006" for the sake of brevity).

(9) CRA-2-19.doc

2] According to the learned Counsel for the Applicants, Order 7

Rule 11(d) will operate in case if jurisdiction of the Civil Court is

ousted and based on the same considering the mechanism provided for

settlement of dispute under the Act of 2006, application-Exhibit-264

either for rejection of the Plaint under Order 7 Rule 11(d) or return of

the Plaint came to be moved. The learned Counsel would urge that

since there is faster remedy available to the Respondent/Plaintiff

under the Act of 2006 and there is no saving provided under the new

Act qua the action taken under the old Act of 1993, claim of

Respondent/Plaintiff needs to be dealt with in accordance with the

provisions of the Act of 2006 i.e. by relegating him to Falicitation

Council. Apart from above, drawing support from Division Bench

Judgment of this Court in the mater of Sonali Power Equipment vs.

Maharashtra State Electricity Board, 2018 SCC OnLine Bom 2253,

submissions are, whether in view of the Act of 1993 or the Act of

2006, jurisdiction of the Civil Court is ousted is an issue pending

consideration before the larger Bench pursuant to the reference made

in the aforesaid judgment and that being so, suit is liable to be stayed

or the Plaint is liable to be returned.

(9) CRA-2-19.doc

3] The learned Counsel for the Respondent supported the order

impugned. According to him, once the saving in the Act of 2006 in

express terms is not provided, provisions of Section 6 of the General

Clauses Act will come into play. According to him, the court below

have rightly considered the provisions of Section 32 of the Act of 2006

and has proceeded to interpret that proceedings will continue under

the Act of 1993 as same are not saved. He sought dismissal.

4] Considered rival submissions.

5] Fact remains that proceedings were initiated by the Respondent/

Plaintiff under the Act of 1993. Though the Act of 2006 does not

provide for express saving clause, however, court below was verymuch

justified in invoking provisions of Section 6 of the General Clauses Act

so as to infer that even if the Act of 1993 is replaced by the Act of

2006 proceedings initiated under the Act of 1993 are saved and can be

continued.

6] Whether Respondent/Plaintiff can be relegated to the

mechanism of giving faster remedy under the new Act i.e. the Act of

(9) CRA-2-19.doc

2006 is an issue which can be agitated at appropriate stage of the suit

and same can be looked into by the Civil Court dealing with the suit

claim. One more principle of law which is required to be taken into

account is that in case of number of remedies being available, election

of one of them cannot be faulted with by saying that another remedy

should have been taken recourse to so as to have expeditious disposal

of the claim. Fact remains that provisions of Order 7 Rule 11(d) of

CPC can be invoked based on existing provisions of law whereby it has

to be established that suit claim was barred by provisions of law. Even

if the Applicants have relied upon the judgment of this Court in the

matter of Sonali Power Equipment cited supra, what can be inferred is

only a reference is made as to ouster of jurisdiction of the Civil Court.

However, fact remains that it cannot be read in statute that as on date

there is ouster of jurisdiction of Civil Court under the Act of 1993 and

that being so, proceedings are not maintainable.

7] In the aforesaid backdrop, no case for interference with the

impugned order is made out. Petition fails and same stands dismissed.

( NITIN W. SAMBRE, J. )