Bharat Sanchar Nigam Ltd. (Bsnl) ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 4508 MP

                                                          1                              WP-11534-2021
                              The High Court Of Madhya Pradesh
                                         WP-11534-2021
                       (BHARAT SANCHAR NIGAM LTD. (BSNL) HARISH CHANDRA MATHUR LANE JANPATH DELHI AND
                                     OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                      2
                      Jabalpur, Dated : 23-08-2021
                            Heard through Video Conferencing.
                            Shri Ram Narayan Tiwari, learned counsel for the petitioners.
                            Shri Shanshank Shekhar, learned counsel with Shri Ankit Saxena,
                      learned counsel for the caveator.

                            Shri Sheetal Tiwari, learned Panel Lawyer for the State.
                            Petitioner has filed this writ petition making a prayer to quash award
                      dated 3.2.2021 passed in case No. MSEFC/1060/2020.
                            Counsel appearing for the petitioners submitted award has been passed
                      ignoring provisions of Section 18 (2) and without giving proper opportunity
                      of defence to petitioners. It is submitted that since rights of natural justice of
                      petitioners are violated, therefore, this Court may interfere in the award which
                      has been passed contrary to provisions of Small and Medium Enterprises
                      Development Act, 2006 (hereinafter referred to as Act of 2006).

                            Shri Shashank Shekhar, learned counsel with Shri Ankit Saxena,
                      learned counsel appeared for the caveator. Respondents had filed caveat

application which was registered as I.A. No. 18016/2021. Counsel appearing for the respondent i.e. M/s Om Optel Industries Private Limited submitted that there exists an alternative and efficacious remedy under Section 19 against impugned award dated 3.2.2021. Pre deposit of 75% of award amount is mandatory under Section 19 of Act of 2006 for considering any application for setting aside award or decree. Petitioner has not deposited 75% of award amount and there is an alternative and efficacious remedy available to petitioners, therefore, writ petition may not be entertained.

Counsel appearing for caveator relied on judgment passed by Chattisgarh High Court in W.P. No. 699/2015 dated 25.11.2016. High Signature Not SAN Verified Court of Chhatishgarh placed reliance on the judgment passed by Apex Court Digitally signed by ARVIND KUMAR DUBEY Date: 2021.08.26 12:02:37 IST 2 WP-11534-2021 in case of Snehadeep Structures Private Limited Vs. Maharashtra Small-Scale Industries Development Corporation Limited and also on judgment of Goodyear India Limited Vs. Norton Intech Rubbers Private Limited and another reported in (2010) 3 SCC 34 and (2012) 6 SCC 345. In said cases, it was held by Apex Court that Section 19 of the Act of 2006 requires deposit

to be made before an application under Section 34 of the Arbitration and Conciliation Act 1996 is filed. Court has no discretion to waive or reduce the amount of 75% of award. However, Court can give direction to make pre- deposit in installments. Condition of pre-deposit of 75% while filing an application for setting aside an award is mandatory. Since pre-deposit is mandatory, therefore, writ petition filed by petitioner under Article 227 of the Constitution of India is not maintainable. Respondent-caveator also relied on the judgment passed by Division Bench of this Court in Writ Appeal No.234/2019 dated 29.2.2020. In case of M/s Fives Stein India Project Pvt. Ltd. Vs. State of Madhya Pradesh and other, wherein it was held that writ petition under Article 226 of Constitution of India will not be an appropriate remedy against an award as there exists an alternative and efficacious remedy.

Counsel appearing for the petitioners relied on the order dated 26.7.2021 passed in W.P.No. 14122/2019. In case of M/s DSC Limited and another Vs. Madhya Pradesh Micro and Small Enterprises Facilitation Council and another. In this case, application for setting aside an award was entertained by this Court despite availability of alternative remedy.

Heard learned counsel for the petitioner as well as counsel for the respondents.

It is establish law that this Court can exercise jurisdiction under Article 226 of the Constitution of India despite availability of alternative remedy. Apex Court in case of Whirphool Corporation Vs. Registrar of Trade Marks, Mumbai and others -reported in (1998) 8 SCC 1 held that High Court has imposed upon itself restrictions to entertain writ petition under Article 226 of the Constitution of India if an efficacious and alternative remedy is available.

Signature
 SAN      Not
Verified

Digitally signed by
ARVIND KUMAR
DUBEY
Date: 2021.08.26
12:02:37 IST
                                                            3                           WP-11534-2021

High Court would not normally exercise its jurisdiction under Article 226 of the Constitution of India if an efficacious and alternative remedy is available to a party. However, existence of alternative remedy will not operate as a bar in existence of three contingencies i.e. when writ petition is filed for enforcement of fundamental rights or where there has been violation of principles of natural justice. or where order of proceedings wholly without jurisdiction or the wires of an act is challenged. This Court entertained Writ Petition in case of case M/s DSC Limited (supra) as Facilitation Council has exceeded its jurisdiction and wrongly decided the issue that Limitation Act is not applicable in the case Despite the fact that application filed before Facilitation Council was barred by limitation Act and same was entertained

and holding that Limitation Act 1963 is not applicable, and therefore, award passed contrary to law would have gone to roots of the matter which could have rendered the award to be nullity. In this case petitioner, has challenged the award on the ground that same is passed contrary to provisions of the Act of 2006 and without giving proper opportunity of hearing to petitioners. This is not a case where question of jurisdiction to entertain an application is involved. Provision of Section 19 of the Act of 2006 are mandatory in nature. Petitioner has an alternative and efficacious remedy to file an application under Section 34 of the Act .

In view of alternative remedy available to petitioners, Writ Petition is disposed off with direction that petitioners may resort to alternative remedy available to him according to law.

VISHAL DHAGAT) JUDGE

DUBEY/-

Signature
 SAN      Not
Verified

Digitally signed by
ARVIND KUMAR
DUBEY
Date: 2021.08.26
12:02:37 IST