Orissa High Court
Rolta India Ltd vs Micro And Small Enterprises on 20 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28464 Of 2020
(Through hybrid mode)
Rolta India Ltd. .... Petitioner
Mr. S.S. Jan, Advocate
-versus-
Micro and Small Enterprises .... Opposite Parties
Facilitation Council and another
Mr. Mohit Agarwal, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
Order 20.12.2021
No.
05. 1. The writ petition was moved on 29th November, 2021 and
paragraph nos. 1 to 4 in order made that day, reproduced below:
"1. Mr. Jan, learned advocate appears on behalf
of petitioner and submits, impugned is order dated
10th December, 2019 passed in MSEFC Case no.35
of 2019 (parties own case) before the Council.
According to him, the award was straightaway made
without compliance with mandate in sub-section (2)
in section 18 of Micro, Small and Medium
Enterprises Development Act, 2006, for the Council
to either itself conduct conciliation or seek the
assistance of any institution or centre providing
alternate dispute resolution services. Without
// 2 //
fulfillment of this mandate, the Council could not
have proceeded to award in the reference. He
submits further, he has other points regarding there
having been order of moratorium under section 14
of Insolvency and Bankruptcy Code, 2016, in respect
of his client as corporate debtor. He submits still
further, purported reason for the award is that his
client accepted petitioner's claim by counter of his
client, received by the Council on 22nd June, 2019.
He draws attention to his client's letter dated 21st
June, 2019 and submits, this letter was treated by
the Council to be his client's counter. In it, dispute
was raised and more importantly, operation of
general terms and conditions of supply relied upon.
Discussion was also mentioned and extension of
time of thirty days to reply each point individually
was requested. There is no order of the Council on
record granting the extension. Instead reliance on
the writing as purported acceptance by his client.
2. Mr. Agarwal, learned advocate appears on
behalf of opposite party no.2. He submits, his client
is supplier under the Act. Though there was request
made for extension of time but no further material by
way of pleading or otherwise was filed by petitioner
before the Council. In the circumstances, the
Council duly inferred acceptance on part of
petitioner, to make and pass the award. There is
efficacious remedy provided under the Act under
section 19.There should be no interference.
// 3 //
3. On hearing parties Court has nothing to go
on to have satisfaction that mandate in section 18,
requiring conciliation, was fulfilled. Mr. Agarwal
relies on several orders in writ petitions dealt with
by Coordinate Bench and order dated 26th October,
2020, by which Petition for Special Leave to
Appeal(C) no.10248 of 2020 ( Southco Utility and
others v. Director of Industries and others) was
dismissed. He submits, those orders were on
respective petitioners, for them to appeal as
provided under section 19.
4. On query from Court it has been ascertained
that execution proceeding has been launched by
opposite party no.2. There was an order of
moratorium, which subsisted for some time. Court is
of view that provisions for adjudication and
recovery in the Act are to be strictly construed on
fulfillment of the mandate. There must have been
intent and purpose of Parliament to legislate in
section 18, requirement for conciliation. Without
having conciliation, for the Council to straightway
pass award appears to be an act without
jurisdiction, to warrant interference under article
226, in spite of available alternative remedy.
Reliance was placed on judgment of Supreme Court
in Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai reported in AIR 1999 SC 22, by
Mr. Jan."
// 4 //
2. On 15th December, 2021 following order was recorded,
reproduced below:
"Mr. Agarwal, learned advocate appears on behalf
of opposite party no.2 and relies on firstly, order
dated 22nd September, 2021 made by co-ordinate
Bench in W.P.(C) no.20234 of 2020 (M/s. Anupam
Industries Ltd. vs. State of Odisha and others) and
secondly, order dated 10th December, 2021 by a
Division bench of this Court dismissing the appeal
therefrom.
2. Mr. Jan, learned advocate appears on behalf of
petitioner. His comments on these orders and
reliance thereon as precedent by opposite party
no.2, will be heard on adjourned date.
3. List on 20th December, 2021, at the top marked
under heading "For Orders"."
3. Today, Mr. Jan relies on three judgments of the Supreme
Court. They are listed as under.
(i) Judgment dated 15th December, 2021 in Civil Appeal
no.2899 of 2021 (Jharkhand Urja Vikas Nigam
Limited vs. The State of Rajasthan and others),
paragraphs 11 to 13. He submits, it would appear from
the judgment that opposite party in the conciliation
under the Act, failed to appear. The Supreme Court said
that the facilitation council could, at best, have recorded
// 5 //
the failure of conciliation and proceeded to initiate
arbitration proceeding. In the case, on the very first date
of appearance, order was passed directing payment. The
order was declared to be a nullity as running contrary
not only to the provisions of the Act of 2006 but also the
Arbitration and Conciliation Act of 1996.
(ii) Dr. Bal Krishna Agarwal vs. State of U.P. reported in
(1995) 1 SCC 614, paragraph 10 reproduced below.
"10.Having regard to the aforesaid facts and
circumstances, we are of the view that the High Court
was not right in dismissing the writ petition of the
appellant on the ground of availability of an alternative
remedy under Section 68 of the Act especially when the
writ petition that was filed in 1988 had already been
admitted and was pending in the High Court for the past
more than five years. Since the question that is raised
involves a pure question of law and even if the matter is
referred to the Chancellor under Section 68 of the Act it
is bound to be agitated in the court by the party
aggrieved by the order of the Chancellor, we are of the
view that this was not a case where the High Court
should have non-suited the appellant on the ground of
availability of an alternative remedy. We, therefore,
propose to go into the merits of the question regarding
inter se seniority of the appellant and Respondents 4
and 5. We may, in this context, mention that Respondent
4 has already retired in January 1994."
// 6 //
(iii) Union of India and others v. Tantla Construction (P)
Ltd. reported in (2011) 5 SCC 697, paragraph 33
reproduced below:
"33. Apart from the above, even on the question of
maintainability of the writ petition on account of the
Arbitration Clause included in the agreement between
the parties, it is now well-established that an alternative
remedy is not an absolute bar to the invocation of the
writ jurisdiction of the High Court or the Supreme
Court and that without exhausting such alternative
remedy, a writ petition would not be maintainable. The
various decisions cited by Mr. Chakraborty would
clearly indicate that the constitutional powers vested in
the High Court or the Supreme Court cannot be fettered
by any alternative remedy available to the authorities.
Injustice, whenever and wherever it takes place, has to
be struck down as an anathema to the rule of law and
the provisions of the Constitution."
4. He also submits, order dated 10th December, 2021 made by the
1st Division Bench of this Court in dismissing appeal against order
dated 22nd September, 2021 made by coordinate Bench in Anupam
Industries Ltd. (supra) cannot bind this Bench, in the circumstances
of law declared by the Supreme Court.
5. Committee of Court demands that view taken by order dated
22nd September, 2021 in Anupam Industries Ltd. (supra) by
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coordinate Bench, confirmed in appeal by order dated 10th December,
2021, be followed. As such, there is no room for interference.
6. The writ petition is dismissed.
(Arindam Sinha)
Judge
Sks
