Delhi High Court
M/S. Hindustan Construction Company ... vs Mr. Navin Kumar Prop. M/S Jai Durge ... on 18 March, 2024
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~31.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 224/2024 & CM APPLs. 16617-18/2024
M/S. HINDUSTAN CONSTRUCTION COMPANY LTD
..... Appellant
Through: Ms. Charu Sachdev with Mr. Gulshan
Kumar Sachdev, Advs.
versus
MR. NAVIN KUMAR PROP. M/S JAI DURGE
CONSTRUCTION & ANR. ..... Respondents
Through: Mr. Natwar Rai, Advocate (Through
VC)
% Date of Decision: 18th March, 2024
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, ACJ: (ORAL)
CM APPL. 16619/2024 (for exemption)
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
LPA 224/2024 & CM APPLs. 16617-18/2024
1. The present Letters Patent Appeal has been filed under Clause X of
the Letters Patent of the then High Court of Judicature at Lahore, which
stands extended to the High Court of Delhi, challenging the impugned order
dated 15th December, 2023, passed in W.P.(C) 10657/2023, whereby the
learned Single Judge declined to interfere with the Order dated 22 nd May,
2023 passed by the Sole Arbitrator and disposed of the writ petition with
directions to the Sole Arbitrator to take evidence on the issue, as to when
was the actual date of registration of the MSME, so as to determine whether
the Respondent has rendered any service under the contract after the date of
registration or not.
2. The order dated 22nd May, 2023 was passed by the Sole Arbitrator
while adjudicating the Appellant's objection to the jurisdiction of the
Arbitral Tribunal on the anvil of Section 16 of the Arbitration and
Conciliation Act, 1996 ('Act of 1996').
3. Learned counsel for the Appellant states that the learned Single Judge
failed to decide the issue of lack of jurisdiction of the Arbitral Tribunal,
which is a pure question of law. She states that the works contract entered
between the parties is not governed by the Micro, Small and Medium
Enterprises Development Act, 2006 ('MSMED Act').
4. We are of the considered opinion that the writ petition filed by the
Appellant before the learned Single Judge for assailing the order dated 22nd
May, 2023, passed by the Sole Arbitrator was not maintainable. The
Constitution Bench of the Supreme Court [seven Judges Bench] in SBP and
Co. v. Patel Engineering Ltd.1 has expressly disapproved the practice of
High Courts in entertaining writ petitions under Article 226/227 of the
Constitution against the order passed in the arbitral proceedings.
(2005) 8 SCC 618 (paras 45 and 46)
5. The present proceedings emanate from a reference made to
Arbitration by the Micro and Small Enterprises Facilitation Council. The
Appellant has raised an objection that the provisions of the MSMED Act are
not attracted in the present case. The Sole Arbitrator vide order dated 22 nd
May, 2023, has adjudicated on the said objection on the anvil of Section 16
of the Act of 1996 and rejected the same to hold that the Arbitral Tribunal
has the requisite jurisdiction to try the arbitral proceedings. The Supreme
Court in its recent pronouncement dated 6th November, 2023, passed in Civil
Appeal No. 7491/2023, titled as 'M/s India Glycol limited and Anr. v.
Micro and Small Enterprises Facilitation Council, Medchal - Malkajgiri
and Ors.' unequivocally held that petitions filed under Article 226/227 of
the Constitution ought not to be entertained in view of Section 18 of the
MSMED Act, which provides for recourse to statutory remedy for
challenging the award under Section 34 of the Act of 1996.
6. The Appellant herein will therefore, have to await the passing of the
final award and if aggrieved, take recourse under Section 34 of the Act of
1996, wherein the Appellant will also have the opportunity of challenging
the order passed by the Arbitral Tribunal under Section 16 of the Act of
1996. However, no writ petition can be maintained by the Appellant against
the in-between orders of the Arbitral Tribunal.
7. We are not satisfied with the reasons pleaded in CM APPL.
16618/2024 seeking condonation of delay of 50 days in filing this appeal. In
fact, we also note that the Appellant herein unequivocally acted upon the
impugned order dated 15th December, 2023 and sought favourable directions
from the Sole Arbitrator in the proceedings held on 23 rd February, 2024. The
Appellant has therefore, elected to act upon the relief granted in its favour
and for this additional reason, the present appeal is not maintainable.
8. The present appeal along with applications is accordingly, dismissed
on merits and on the grounds of limitation.
ACTING CHIEF JUSTICE
MANMEET PRITAM SINGH ARORA, J
MARCH 18, 2024/hp/aa
