Kerala High Court
M/S.Sunshine Plastics vs M/S.Mahima Enterprises on 1 November, 2021
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
WP(C) NO. 26713 OF 2008
PETITIONER/S:
ABDULLA HAJI, AGD 58 YEARS, C/O M/S MAHIMA
ENTERPRISES, PALAKUNNU P.O. BEKAL P.O., KASARAGOD
BY ADV SRI.T.K.VIPINDAS
RESPONDENT/S:
1 THE KERALA MICRO AND SMALL ENTERPRISES FACILITATION
COUNCIL, THIRUVANANTHAPURAM
2 M/S. EVERSHINE INDUSTRIES
KAITHERIPOYIL P.O., PATHIRIYODU, KANNUR DISTRICT.
BY ADV SRI.R.SUDHIR, R2
SMT.RASHMI K.M., SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01.11.2021, ALONG WITH OP(C).2586/2011, 8817/2010, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
WP(C) NO. 8817 OF 2010
PETITIONER/S:
ABDULLA HAJI,AGED 58 YEARS
C/O.M/S.MAHIMA ENTERPRISES,, PALAKUNNU P.O., BEKAL
P.O.,, KASARAGOD.
BY ADV SMT.P.K.PRIYA
RESPONDENT/S:
1 THE KERALA MICRO AND SMALL ENTERPRISES
FACILITATION COUNCIL, THIRUVANANTHAPURAM.
2 MS.EVERSHINE INDUSTRIES
KAITHERIPOYIL P.O., PATHIRIYODU,, KANNUR DISTRICT.
ADD.R3 SUNSHINE PLASTICS, KAITHERIPOYIL, POST PATHIRIYAD,
KANNUR DISTRICT REP.BY ITS MANAGING PARTNER, N
ARAVINDAKSHAN, S/O C.M.RAMAN, AGED 50 YEARS,
PRASANTHI, P.O.PATHIRIYAD, KANNUR DISTRICT.
ADDL.R3 IS IMPLEADED AS PER ORDER DT.25.10.11 IN IA
16862/11
BY ADVS.
SRI.R.SUDHIR
SRI.SANTHEEP ANKARATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01.11.2021, ALONG WITH WP(C).26713/2008 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
OP(C) NO. 2586 OF 2011
AGAINST THE ORDER/JUDGMENT IN OA 1/07/MSEFC PASSED BY DISTRICT
COURT, KASARGOD
PETITIONER/S:
M/S.SUNSHINE PLASTICS
POST-PATHRIYAD, KANNUR DISTRICT,REP.BY ITS, MANAGING
PARTNER,N.ARAVINDAKSHAN,S/O.C.M.RAMAN,, AGED 50
YEARS,'PRASANTHI,PO PATHIRIYAD,, KANNUR DISTRICT.
BY ADVS.
SRI.SANTHEEP ANKARATH
SRI.SUMODH MADHAVAN NAIR
RESPONDENT/S:
M/S.MAHIMA ENTERPRISES
POST BEKAL,KASARGOD DISTRICT,REP.BY ITS MANAGING,
PARTNER K.ABDULLA HAJI,S/O.ABDUL RAHIMAN,, MUDIYAKKAL
PALLIKERE VILLAGE,PO PALLIKERE-671316,, HOSDURG
TALUK,KASARGOD DISTRICT.
BY ADVS.
SMT.P.K.PRIYA
SRI.T.K.VIPINDAS
SRI.K.V.SREE VINAYAKAN
SRI.K.M.MUHAMMED HUSSAIN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2021,
ALONG WITH WP(C).26713/2008 AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 4
P.V.KUNHIKRISHNAN, J
--------------------------------------------
W.P.(C.) Nos.26713 of 2008, 8817 of 2010
and OPC No. 2586 of 2011
--------------------------------------
Dated this the 1st day of November, 2021
JUDGMENT
The above two Writ Petitions and the Original petition
(Civil) are connected and therefore, I am disposing of these
three cases by a common judgment.
2. First I will narrate the facts in W.P.(C.) No. 26713
of 2008 and W.P.(C.) No. 8817 of 2010. In both these cases,
the impugned orders are award passed under Sec.18(3) of
Micro, Small and Medium Enterprises Development Act, 2006
(for short 'Act 2006'). Admittedly, there is an alternative
remedy to challenge an award passed under Sec.18(5) of the
Act 2006 and there are certain procedures to be followed as
per Sec.19 of the Act, 2006. When there is an alternative
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 5
remedy to challenge the award passed under Sec.18(5) of the
Act 2006, no writ petition is maintainable, in the light of the
decisions of this Court in Sajith Kumar M.S. v. State of
Kerala [2019 (2) KHC 570] and KSRTC v. Union of India
[2010 (1) KLT 65]. Therefore, the petitioner has to challenge
the impugned award before the appropriate court as per the
procedure prescribed in the Act, 2006. The petitioner can be
given a breathing time to file such proceedings before the
appropriate court and till then, the interim order can be
extended for a short period.
3. As far as O.P.(C.) No. 2586/2011 is concerned, it is
an original petition filed challenging Ext.P5 order. The
original petition is filed by the 3 rd respondent in W.P.(C.)
No.8817/2010. The grievance of the petitioner is that the
petitioner in the original petition hererin obtained the award
from the Kerala Micro and Small Enterprises Facilitation
Council against the respondent in this case. Ext.P1 award is
Ext.P2 in W.P.(C.) No. 8817/2010. The petitioner in the
original petition filed an execution petition before the
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 6
District Court, Kasargod. The attachment was ordered in the
execution proceedings. At that stage, W.P.(C.) No. 8817/2010
was filed challenging the very same award in which the sister
concern of the petitioner is made as party. The petitioner was
not made a party in the writ petition. This Court passed an
interim stay in that writ petition. The judgment-debtor filed an
application for lifting of the attachment, in the light of the
stay granted by this Court. Even though the petitioner filed a
detailed counter, without considering the same, the District
Court lifted the attachment, as per Ext.P5 order. Aggrieved by
the same, this original petition is filed.
4. In the light of the fact that the petitioner in O.P.(C.)
No. 2586/2011 is already impleaded in W.P.(C.) No.
8817/2010 and also in the light of the fact that this Court
already allowed the petitioner in that writ petition to take
appropriate steps to challenge the award before the
appropriate court, I think Ext.P5 in O.P.(C.) No. 2586/2011
can be set aside and the matter can be remanded back to the
court below for fresh consideration, in accordance to law.
Therefore, these three cases are disposed in the
following manner :
1) The petitioner in W.P.(C.) No. 26713/2008 and
W.P.(C.) No.8817/2010 can challenge Ext.P2 awards
produced in these two writ petitions by filing appeal
before the appropriate court, within two months from the
date of receipt of a copy of this judgment.
2) If such an appeal is received by the competent
court, the time during which this writ petition is pending
before this Court, will be excluded for calculating the
limitation period.
3) The interim order of the stay of Ext.P2 awards in
W.P.(C.) Nos. 26713/2008 and 8817/2010 are extended
for a further period of two months from the date of
receipt of a copy of this judgment, to facilitate the
petitioner to approach the competent court.
4) Ext.P5 in O.P.(C.) No. 2586/2011 is set aside and
the execution court is directed to reconsider EA
No.74/2010 in EP No. 14/2009 in OA No.1/2007 in
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 8
accordance to law, after giving opportunity of hearing to
all parties concerned.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 9
APPENDIX OF WP(C) 26713/2008
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE APPLICATION
SUBMITTED BY THE 2ND RESPONDENT BEFORE
THE 1ST RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT DATED 19-4-2008
RESPONDENT EXHIBITS
EXT.R2(A) TRUE COPY OF THE STATEMENT OF DEFENCE FILED ON
BEHALF OF THE PETITIONER AGAINST EXT.P1 APPLICATION FILEDBY
THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT
EXT.R2(B) TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND
RESPONDENT TO THE STATEMENT OF DEFENCE FILED BY THE
PETITIONER.
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 10
APPENDIX OF WP(C) 8817/2010
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE APPLICATION
SUBMITTED BY THE 2ND RESPONDENT BEFORE
THE 1ST RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE 1ST RESPONDENT DATED
19-4-2008
EXHIBIT P3 TRUE COPY OF THE ORDER IN WP(C)26713/2008
BEFORE THIS HON'BLE COURT.
WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 11
APPENDIX OF OPC 2586/2011
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF AWARD DATED 19.4.2008 IN OA
1/07 OF MSEFC
EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION
IN EA NO.74/2010 IN EP NO 14/2009 DATED
17.10.2010 IN OA NO. 01/07/MSEFC FILED BY
THE RESPONDENT BEFORE THE DISTRICT COURT,
KASARGOD
EXHIBIT P3 TRUE COPY OF COUNTER TO EXT.P2 DATED
22.11.2010 FILED BY THE PETITIONER BEFORE
THE DISTRICT COURT, KASARGOD
EXHIBIT P4 TRUE COPY OF MEMORANDUM OF WRIT PETITION
IN WPC NO. 8817/2010 WITHOUT EXHIBITS
FILED BEFORE THIS HON'BLE COURT
EXHIBIT P5 TRUE COPY OF ORDER DATED 22.6.2011 IN EA
NO. 74/2010 IN EPNO. 14/2009 IN OA
NO.1/07/MSEFC PASSED BY DISTRICT COURT,
KASARGOD.
