Orissa High Court
Rolta India Ltd vs Micro Small And Medium on 29 November, 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
Mr. Anupam Dash, Advocate
-versus-
Micro Small and Medium .... Opposite Parties
Enterprises Facilitation Council
and another
Mr. Mohit Agarwal, Advocate for O.P.2
CORAM: JUSTICE ARINDAM SINHA
ORDER
29.11.2021
Order
No.
W/P.(C) No.28464 of 2020 and I.A. no.6501 of 2021
03. 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 fulfillment of this mandate, the Council could not have
// 2 //
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.
5. Proceeding in Execution Case no.247 of 2020 pending before
the learned District Judge, Cuttack is stayed till disposal of the writ
// 4 //
petition. I.A. no.6501 of 2021 is disposed of. Post the writ petition for
hearing.
6. List on 15th December, 2021 at 2.00 p.m.
(Arindam Sinha)
Judge
Sks
