Madras High Court
M/S.Saravana Selvarathinam Dairy ... vs M/S.Nivjer Infrastructure Rep. By Its on 28 October, 2024
Author: M.Sundar
Bench: M.Sundar
O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
and
C.M.P. Nos.20454 and 20455 of 2022
in O.S.A. (CAD) No.19 of 2022
O.S.A. (CAD) No. 8 of 2024:
M/s.Saravana Selvarathinam Dairy Division
rep. By its Proprietor S.Saravana Arul,
No.33, Ranganathan Street,
T.Nagar, Chennai – 17. .. Appellant
Vs
1.M/s.Nivjer Infrastructure rep. By its
Chief Executive R.Vincent Raju,
No.44A (Old No.22), 18th Avenue,
Ashok Nagar, Chennai – 600 083.
2.The Chairman,
Micro Small Enterprises Facilitation Council,
Chennai Region,
O/o.The Director of Industries and Commerce,
Behind Ezhilagam, Chennai – 5. .. Respondents
O.S.A. (CAD) No. 19 of 2022:
M/s.Nivjer Infrastructure rep. By its
Chief Executive R.Vincent Raju,
No.44A (Old No.22), 18th Avenue,
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Page 1 of 9
O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
Ashok Nagar, Chennai – 600 083. .. Appellant
Vs
1.M/s.Saravana Selvarathinam Dairy Division
rep. By its Proprietor S.Saravana Arul,
No.33, Ranganathan Street,
T.Nagar, Chennai – 17.
2.The Chairman,
Micro Small Enterprises Facilitation Council,
Chennai Region,
O/o.The Director of Industries and Commerce,
Behind Ezhilagam, Chennai – 5. .. Respondents
Prayer in O.S.A. (CAD) No.8 of 2024: Appeal filed
under Section 13 of The Commercial Courts Act, 2015 read with
Section 37 of The Arbitration and Conciliation Act, 1996 and Order
XXXVI Rule 9 of Original Side Rules against the fair and decretal
order dated 30.01.2020 made in O.P.No.481 of 2009.
Prayer in O.S.A. (CAD) No.19 of 2022: Appeal filed
under Section 13 of The Commercial Courts Act, 2015 read with
Section 37 of The Arbitration and Conciliation Act, 1996 and Order
XXXVI Rule 9 of Original Side Rules against the fair and decretal
order dated 18.11.2021 made in Arb.O.P.No.160 of 2021.
O.S.A. (CAD) No.8 of 2024:
For Appellant : Mr.T.V.Ramanujun,
Sr. Counsel
for Mr.E.Karthik Raja
For Respondents : Mr.Hari Radhakrishnan for R1
R2 – Not ready in notice
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
O.S.A. (CAD) No.19 of 2022:
For Appellant : Mr.Hari Radhakrishnan
For Respondents : Mr.T.V.Ramanujun,
Sr. Counsel
for Mr.E.Karthik Raja for R1
No appearance for R2
COMMON JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.)
This common order will now dispose of the captioned two
'Original Side Appeals' (hereinafter 'OSAs' in plural and 'OSA' in
singular for the sake of brevity) and captioned two 'Civil
Miscellaneous Petitions' (hereinafter 'CMPs' in plural and 'CMP' in
singular for the sake of brevity) thereat.
2. Captioned OSAs are appeals under Section 37 of 'The
Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)'
(hereinafter 'A and C Act' for the sake of brevity, convenience and
clarity).
3. Owing to the trajectory the matter has taken in the Section
34 Court, short facts shorn of elaboration will suffice.
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
4. Factual matrix in a nut shell is that 'Micro Small Enterprises
Facilitation Council' (hereinafter 'MSME Council' for the sake of
brevity) passed an 'award dated 09.01.2009' (hereinafter 'said
Award' for the sake of convenience and clarity) in favour of one
'Nivjer Infrastructure' (hereinafter 'NI' for the sake of brevity); that
said Award in favour of NI is against 'Saravana Selvarathinam Dairy
Division' (hereinafter 'SSDD' for the sake of brevity); that SSDD
filed a Section 34 petition in O.P.No.481 of 2009 assailing said
Award; that in O.P.No.481 of 2009, Section 34 Court resorted to
sub-section (4) of Section 34 of A and C Act; that vide order dated
04.03.2010, Section 34 Court adjourned the O.P. by three months
('Call on 16.06.2010' is the order) and sent it to the Arbitral Tribunal
(MSME Council) to resume the arbitration proceedings or to take
such other action as the opinion of Arbitral Tribunal will eliminate
the ground for setting aside the arbitral Award; that pursuant to
this 04.03.2010 Section 34(4) order, MSME Council in an endeavour
to eliminate the ground for setting aside the arbitral Award made
proceedings dated 10.06.2010; that post 10.06.2010 proceedings of
MSME Council, when O.P.No.481 of 2009 was listed before the
Commercial Division, Hon'ble Commercial Division ought to have
heard 09.01.2009 Award and 10.06.2010 proceedings together
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
treating the same as one Award and decided the question as to
whether the Award deserves to be set aside or sustained (whether
setting aside ground has been eliminated) but the Commercial
Division made an order dated 30.01.2020 dismissing O.P.No.481 of
2009 by merely saying that earlier order of MSME Council
(09.01.2009) has been superseded by subsequent order
(10.06.2010 order) and therefore nothing survives for further
consideration in O.P.No.481 of 2009; that this has led to captioned
O.S.A. (CAD) No.8 of 2024 by the SSDD; that after this 30.01.2020
order, on 04.03.2020, SSDD filed a separate Section 34 petition in
Arb.O.P.No.160 of 2021 and that has been allowed by another
Hon'ble Judge presiding Section 34 Court in and by an order dated
18.11.2021; that against this 18.11.2021 order of Section 34 Court,
NI has filed captioned O.S.A. (CAD) No.19 of 2022.
5. Mr.T.V.Ramanujun, learned senior counsel instructed by
Mr.E.Karthik Raja, learned counsel on record for SSDD and Mr.Hari
Radhakrishnan, learned counsel for NI are before us.
6. Both counsel fairly submit that the procedure adopted by
the Section 34 Court is not in consonance with sub-section (4) of
Section 34 of A and C Act as sub-section (4) of Section 34 only
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
provides for adjournment of O.P. and it was also fairly agreed that
instead of filing an independent Arb. O.P. No.160 of 2021, the order
dated 30.01.2020 in O.P. No.481 of 2009 alone should have been
assailed.
7. In the light of the fair submission made by both sides, the
following order is made:
7.1 O.S.A. (CAD) No.8 of 2024 and O.S.A.
(CAD) No.19 of 2022 are allowed;
7.2 O.P. No.481 of 2009 is resuscitated;
7.3 O.P. No.481 of 2009 shall now be listed
before the Section 34 Court;
7.4 When O.P. No.481 of 2009 is listed before
the Section 34 Court, said Award dated 09.01.2009
along with 10.06.2010 proceedings of MSME Council
shall be tested on merits but obviously within the
legal perimeter of Section 34 of A and C Act;
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
7.5 For the aforesaid legal drill, all questions
are left open;
7.6 We are informed that SSDD has made
deposit to the credit of Arb. O.P. No.160 of 2021.
The same shall be refunded to SSDD in accordance
with the obtaining procedure subject to statutory
deductions, if any.
8. Captioned two OSAs are disposed of in the aforesaid
manner with the aforesaid directive and aforementioned
observations. Consequently, captioned two CMPs thereat are
disposed of as closed. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.)
28.10.2024
Index:Yes/No
Neutral Citation: Yes/No
mmi
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
To
1.The Chairman,
Micro Small Enterprises Facilitation Council,
Chennai Region,
O/o.The Director of Industries and Commerce,
Behind Ezhilagam, Chennai – 5.
2.The Sub Assistant Registrar,
Original Side, High Court,
Madras.
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O.S.A. (CAD) Nos.8 of 2024 and 19 of 2022
M.SUNDAR.J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mmi
and 19 of 2022
28.10.2024
https://www.mhc.tn.gov.in/judis
