Orissa High Court
Aes (India) Pvt. Ltd vs State Of Odisha And Others .... Opp. ... on 4 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 05-Dec-2023 10:25:44
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 36825 OF 2023
AES (India) Pvt. Ltd., New Delhi .... Petitioner
Mr. Prafulla Kumar Rath, Senior Advocate
being assisted by
Mr. Sarada Prasanna Sarangi, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Digambara Mishra, Advocate
(For Opp. Party No.3)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 04.12.2023
1. 1. This matter is taken up through hybrid mode.
2. Mr. Mishra, learned counsel has already entered
appearance on behalf of Opposite Party No.3 through caveat.
3. In course of hearing, Mr. Mishra, learned counsel for the
Opposite Party No.3 submits that no notice whatsoever under
Section 61 of the Arbitration and Conciliation Act, 1996 (for
short 'the Arbitration Act') issued by the Petitioner. He also
submits that no conciliation statement was also ever served on
the Opposite Party No.3 at any point of time.
4. It is submitted by Mr. Rath, learned Senior Advocate
appearing for the Petitioner that a notice under Section 61 of the
Arbitration Act is not necessary in view of the language of
Section 18(2) of the Micro, Small and Medium Enterprises
Development Act, 2006. Since the conciliation proceeding is a
pre condition before taking up the arbitration, the Facilitation
Council has to take up the matter and issue notice to the parties
to file their conciliation statement. No such notice has ever been
// 2 //
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 05-Dec-2023 10:25:44
issued by the Council. The conciliation process started on 27th
November, 2022 and in its 97th meeting of the Council and on
the very next date, i.e., on 27th December, 2022 in 98th meeting,
the Council observed that the conciliation failed. Thus, the
procedure provided under Sections 65 to 81 of the Arbitration
Act, have been given a gobye before the Council. In view of
ratio decided in the cases of Vijeta Construction -v- Indus
Smelters Ltd. and another, reported in 2021 SCC OnLine SC
3436 and Jharkhand Urja Vikas Nigam Limited -v- State of
Rajasthan and others, reported in 2021 SCC OnLine SC 1257,
the ward become a nullity.
5. Mr. Mishra, learned counsel for the Opposite Party No3
vehemently objects to the same and relied upon the case of M/s.
India Glycols Limited and another -v- Micro and Small
Enterprises Facilitation Council, Medchal-Malkajgiri and
others (Civil Appeal No.7491 of 2023, decided by the Hon'ble
Supreme Court on 6th November, 2023), wherein it is held as
under:
"12. The appellant failed to avail of the remedy
under Section 34. If it were to do so, it would have been
required to deposit seventy-five per cent of the decretal
amount. This obligation under the statute was sought to be
obviated by taking recourse to the jurisdiction under
Articles 226/227 of the Constitution. This was clearly
impermissible.
xxx xxx xxx
xxx
14. Mr Parag P Tripathi, senior counsel appearing on
behalf of the appellant sought to urge that the view of the
Facilitation Council to the effect that the provisions of
the Limitation Act 1963 have no application, which has
been affirmed by the Division Bench in the impugned
judgment, suffers from a perversity, and hence a petition
under Article 226 of the Constitution ought to have been
entertained. We cannot accept this submission for the
simple reason that Section 18 of the MSMED Act 2006
provides for recourse to a statutory remedy for challenging
// 3 //
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 05-Dec-2023 10:25:44
an award under the Act of 1996. However, recourse to the
remedy is subject to the discipline of complying with the
provisions of Section 19. The entertaining of a petition
under Articles 226/227 of the Constitution, in order to
obviate compliance with the requirement of pre-deposit
under Section 19, would defeat the object and purpose of
the special enactment which has been legislated upon by
Parliament."
6. He also relied upon an order dated 30th November, 2023
passed in the case of T.R. Chemicals Ltd. -v- M/s. Bajarang
Metalic Ltd. and others (W.A. No.128 of 2017), wherein this
Court relying upon the case of M/s. India Glycols Limited
(supra) held that the only remedy against an award passed by the
facilitation Council is by availing the remedy under Section 34
of the Arbitration Act.
7. In order to consider the rival contentions of the parties,
this Court feels that the order sheet of the Facilitation Council,
more particularly, order dated 27th November, 2022 and 27th
December, 2022 are necessary to be perused. Hence, the matter
stands adjourned to be listed on 3rd January, 2024 on which date
both the parties are requested to produce a copy of the said
orders/order sheet.
8. The Opposite Party No.3 also may come up with its
affidavit replying to the averments made in the writ petition by
that date serving copy thereof on learned counsel for the
Petitioner.
9. Till then, the impugned award dated 7th September, 2023
(Annexure-1) passed by the Director of Industries-cum-
Chairman, MSEFC Industries, Odisha, Cuttack in MSEFC Case
No.50 of 2022 shall remain stayed.
(K.R. Mohapatra)
ms Judge
