The Block Development Officer vs Abraham Kuriakose
2023 Latest Caselaw 3573 Ker

W.P.(C) No. 29212/2022             :1:




                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945

                         WP(C) NO. 29212 OF 2022

PETITIONER/S:

           THE BLOCK DEVELOPMENT OFFICER
           PAMPADY BLOCK, ANIKKAD P.O., KOTTAYAM, PIN - 686 503.
           BY ADV. SMT. K.R. DEEPA, SPL. GOVERNMENT PLEADER


RESPONDENT/S:

     1     ABRAHAM KURIAKOSE
           PROPRIETOR, M/S. ENERGYSOL, VADAVATHOOR, P.O., KOTTAYAM,
           PIN - 686 503.
     2     THE CHAIRMAN,
           MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL,
           KERALA, THIRUVANANTHAPURAM, PIN - 695 033.
           BY ADVS.
           ANIL SIVARAMAN
           RAJI VINCENT(K/34/1988)
           JOTHISHA K.A.(K/123/2022)



THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.03.2023, THE

COURT ON 29.03.2023 DELIVERED THE FOLLOWING:
 W.P.(C) No. 29212/2022                :2:


                            SHAJI P. CHALY, J.
           ---------------------------------------------------------
                    W.P.(C). No. 29212 of 2022
           ---------------------------------------------------------
                    Dated this the 29RD day of March, 2023.

                              JUDGMENT

The writ petition is filed by the Block Development Officer

(BDO), Pampady Block, Kottayam, challenging Exhibit P13 award

dated 22.01.2022 in O.A. No. 54 of 2020 passed by the Micro and

Small Enterprises Facilitation Council, Kerala.

2. As per the award, the appellant was directed to pay an

amount of Rs.3,47,800/- along with compound interest calculated at

three times of bank rate notified by the Reserve Bank as provided

under Section 16 of the Micro, Small and Medium Enterprises

Development Act, 2006 from 22.10.2019 till the date of realization

of the award. The legality and correctness of the said award is

under challenge in this writ petition.

3. The paramount contention advanced by the petitioner is

that the writ petitioner invited tender "A4/1041/17 Project No.2 -

MPLADS (Member of Parliament Local Area Development Scheme)

2016-2017', against which the first respondent contractor has

submitted offer for the supply of the LED High Mast Light System

for the use of the Block Development Officer, Pampady Block

Panchayat. The writ petitioner has accepted the offer subject to the

conditions stipulated in the agreement executed by and between

the parties in pursuance of the work order dated 28.02.2018 issued

by the writ petitioner.

4. As per the agreement dated 18.04.2018, the item offered

by the first respondent was the installation of the LED High Mast

Light System with 12 meter High Mast pole, 4 numbers of 150

watts LED Flood light luminary and other allied items as per

specifications attached with the agreement executed on

07.03.2019.

5. It is also stated that several complaints were received

regarding the foundation work of the installation of the High Mast

Light and the same was enquired by the petitioner with the first

respondent. However, the enquiry was never answered by the first

respondent. Other contentions were also raised. The contention

put forth by the first respondent is that after the installation in

accordance with the contract, several requests were made to pay

the money, however the writ petitioner failed to pay the amount

due as per the contract and the agreement executed.

6. Due to failure on the part of the writ petitioner to pay the

amount, the petitioner had to approach the Micro and Small

Enterprises Facilitation Council as provided under the provisions of

the Act, 2006. It is further submitted that in spite of sufficient

opportunity made by the Facilitation Council, the respondent has

failed to file any written statement and contest the proceedings.

7. Even though the matter was placed for conciliation, it has

failed and thereafter, the Facilitation Council has proceeded with

arbitration and has passed the award. Therefore, according to the

learned counsel for the first respondent, the petitioner, having failed

to challenge the award in accordance with the provisions of the Act,

2006 and the Rules, 2019, is not entitled to challenge the award by

filing a writ petition. Therefore, the first question to be answered is

whether the writ petition is maintainable under law.

8. I have heard the learned Special Government Pleader Smt.

K.R Deepa for the petitioner and Sri. Anil Sivaraman for the first

respondent, and perused the pleadings and material on record.

9. The issue is guided by the provisions of the Act, 2006. The

Act, 2006 is an enactment introduced to provide for facilitating the

promotion and development and enhancing the competitiveness of

micro, small and medium enterprises and for matters connected

therewith or incidental thereto.

10. There is no dispute that the first respondent is a

registered MSE unit entitled to secure the benefits of the Act, 2006.

Section 15 deals with 'the delayed payments to the Micro and Small

Enterprises', which specifies that where any supplier supplies any

goods or renders any services to any buyer, the buyer shall make

payment therefor on or before the date agreed upon between him

and the supplier in writing or, where there is no agreement in this

behalf, before the appointed day. The proviso thereto makes it

clear that in no case the period agreed upon between the supplier

and the buyer in writing shall exceed forty-five days from the day of

acceptance or the day of deemed acceptance.

11. Section 16 dealing with 'the date from which and rate at

which interest is payable', stipulates that where any buyer fails to

make payment of the amount to the supplier, as required under

section 15, the buyer shall, notwithstanding anything contained in

any agreement between the buyer and the supplier or in any law for

the time being in force, be liable to pay compound interest with

monthly rests to the supplier on that amount from the appointed

day or, as the case may be, from the date immediately following the

date agreed upon, at three times of the bank rate notified by the

Reserve Bank.

12. Section 17 further makes it clear that for any goods

supplied or services rendered by the supplier, the buyer shall be

liable to pay the amount with interest thereon as provided under

Section 16. Section 18 dealing with 'reference to Micro and Small

Enterprises Facilitation Council', is the provision to be discussed in

detail to identify the issue as to whether the writ petition is

maintainable. It reads thus:

"18. Reference to Micro and Small Enterprises Facilitation Council.--(1) .--(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitation Council.

(2) On receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act.

(3) Where the conciliation initiated under sub-section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer it to any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in sub-section (1) of section 7 of that Act.

(4) Notwithstanding anything contained in any other law for the time being in force, the Micro and Small Enterprises Facilitation Council or the centre providing alternate dispute resolution services

shall have jurisdiction to act as an Arbitrator or Conciliator under this section in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India. (5) Every reference made under this section shall be decided within a period of ninety days from the date of making such a reference.

13. Therefore, it is clear that when the money is not paid in

terms of the agreement, the supplier is entitled to approach the

Council in terms of the provisions of the Act, 2006. It was

accordingly that the first respondent approached the Council. On a

perusal of Exhibit P13 award, it is clear that the Facilitation Council

has taken cognizance of the dispute in the year 2020 and issued

statutory notices to the petitioner herein as well as the first

respondent for appearing before the Council for the hearing held on

05.01.2021. It is also clear that the petitioner herein was also

served with a copy of the Original Petition filed by the first

respondent herein.

14. It is further clear that both the parties were present on

the aforesaid sittings and the Council initiated conciliation

proceedings. But, the conciliation failed, since the petitioner herein

raised a complaint with respect to the work done by the first

respondent. The grievance highlighted by the writ petitioner before

the Facilitation Council was that it has received complaints from the

public regarding the question of low quality standards of the

foundation of High Mast Light System and as per their version, the

electrical installation was standing as a threat to life and safety of

the public. However, the Council found that no valid proof has been

submitted to substantiate the said issue by the writ petitioner.

15. Anyhow, in order to assess the genuineness of the

allegation made by the writ petitioner, the Council sought a

comprehensive report from the District Collector, Kottayam in that

regard. Later, the case was taken up for arbitration by the Council

on the sittings held on 09.02.2021, 24.04.2021, 28.07.2021 and

22.01.2022 and on all the sittings, both parties were present and

the Council heard both the parties in detail. It is quite clear and

evident from the award that the Council has considered each and

every aspect and has arrived at the conclusion that the first

respondent is entitled to recover the amount from the writ

petitioner. Therefore, the contention advanced in the writ petition

that the petitioner was not provided with an opportunity to contest

the proceedings by the Facilitation Council, cannot be sustained

under law.

16. I have evaluated the rival submission made across the

Bar. In my considered opinion, there is a clear provision contained

under Section 18(3) of the Act, 2006 that if the petitioner was

aggrieved, the remedy available to the petitioner was to challenge

the award in terms of the provisions of the Arbitration and

Conciliation Act, 1996. Therefore, the writ petition is not the

remedy available to the petitioner, if he was aggrieved by the

award.

17. The learned Special Government Pleader has invited my

attention to the judgment of the Apex Court in Whirlpool

Corporation v. Registrar of Trademarks, Mumbai and others

[(1998) 8 SCC 1] to contend that even though a remedy is

provided under the statute, that will not debar the writ court from

entertaining any application under Article 226 of the Constitution of

India. So also, the judgment of the Apex Court in Harbanslal

Sahnia and another v. Indian Oil Corporation Ltd. and others

[(2003) 2 SCC 107) was also pressed into service to highlight the

said legal proposition.

18. But, in my considered opinion, the facts and

circumstances of this case are entirely different and this is a case

where the Facilitation Council has passed the award in accordance

with the provisions of the Act, 2006 and sufficient opportunity was

provided to the petitioner to participate in the proceedings. This is

a case where the writ petition was filed when the first respondent

filed Execution Petition No. 255 of 2022 in O.A.No. 54 of 2020 of

MSEFC before the Principal District Court, Kottayam to execute the

award.

19. The question with respect to entertaining a writ petition

against the award passed by the MSEF Council was considered by

me in Sajith Kumar v. State of Kerala [2019 (2) KLT Online 2052

= 2019(2) KLT SN 44 (C. No. 52)] and held that having failed to

challenge the award in terms of the provisions of the Act, 2006, the

aggrieved was not at liberty to invoke Article 226 of the Constitution

of India to challenge the award passed by the Facilitation Council.

Considering the facts and circumstances and the law

discussed above, I have no hesitation to hold that the writ petition

is not maintainable under law and accordingly, it is dismissed.

sd/- SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 29212/2022

PETITIONER'S EXHIBITS:

Exhibit1 TRUE COPY OF THE TENDER BY THE SECRETARY, PAMPADY BLOCK PANCHAYAT DATED 22.02.2018 Exhibit P2 TRUE COPY OF THE AGREEMENT DATED 18.04.2018 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT.

Exhibit P3 TRUE COPY OF SUPPLEMENTARY AGREEMENT EXECUTED ON 07. 03.2019 Exhibit P4 TRUE COPY OF SUPPLY ORDER DATED 26.02.2019 ISSUED BY THE BDO, PAMPADY Exhibit P5 TRUE COPY OF THE COMMUNICATION OF THE PETITIONER TO THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KOTTAYAM, DATED 09.07.2019 Exhibit P6 TRUE COPY OF THE COMMUNICATION FROM THE DISTRICT COLLECTOR REFERRING TO A WHATSAPP MESSAGE Exhibit P7 TRUE COPY OF THE LETTER DATED 05.07.2019 FROM THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KOTTAYAM Exhibit P8 TRUE COPY OF THE LETTER DATED 20.07.2019 TO THE RESPONDENT FROM THE BDO, PAMPADY Exhibit P9 TRUE COPY OF THE LETTER DATED 24.07.2019 TO THE RESPONDENT FROM THE BDO, PAMPADY Exhibit P10 TRUE COPY OF THE INVOICE DATED 06.09.2019 SUBMITTED BY THE RESPONDENT.

Exhibit P11 TRUE COPY OF THE VALIDATION CERTIFICATE DATED 05.09.2019 FROM THE KSEB Exhibit P12 TRUE COPY OF THE COMMUNICATION DATED 17.02.2021 TO THE CHAIRMAN, MSEF COUNCIL, THIRUVANANTHAPURAM Exhibit P13 TRUE COPY OF THE AWARD PASSED BY THE MSEF COUNCIL IN OA 54/2020 DATED 22.01.2022 Exhibit14 TRUE COPY OF THE COMMUNICATION DATED 23.06.2022 TO THE CHAIRMAN, MSEF COUNCIL, THIRUVANANTHAPURAM Annexure 1 TRUE COPY OF THE NOTICE RECEIVED IN THE EP ALONG WITH THE COPY OF THE EXECUTION PETITION

RESPONDENTS' EXHIBITS: NIL True Copy

PS To Judge.

rv