Orissa High Court
T.R. Chemicals Ltd vs M/S Bajarang Metalic Ltd. & Others on 30 November, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 128 of 2017
T.R. Chemicals Ltd. ..... Appellant
Mr. S.K. Acharya, Adv.
Vs.
M/s Bajarang Metalic Ltd. & others ..... Respondents
Mr. P.K. Nayak, Adv.
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
30.11.2023
Order No. This matter is taken up by hybrid mode.
06.
2. Heard Mr. S.K. Acharya, learned counsel appearing for the
appellant and Mr. P.K. Nayak, learned counsel for the respondent
no.1.
3. The appellant has filed this writ appeal to set aside the order
dated 26.04.2017 passed by the learned Single Judge in W.P.(C)
No. 20768 of 2016 under Annexure-1 and further seeks to quash
the order dated 31.08.2016 passed by respondent no.3 in MSEFC
Case No.4/2014 under Annexure-8 and to issue direction to give a
fresh opportunity of hearing to the appellant before the MSEFC.
4. Mr. S.K. Acharya, learned counsel appearing for the
appellant contended that challenging the order passed in MSEFC
Case No.4/2014, by which direction has been given to the
appellant to pay the principal amount of Rs.6,74,245/- and interest
of Rs.4,23,215/-, the petitioner had earlier approached this by
filing W.P.(C) No.18902 of 2015, which was disposed of, vide
order dated 19.07.2016, remanding the matter back to the MSEFC
for hearing afresh, so far as the interest part is concerned, as the
principal amount is shown to have been disbursed in the meantime
in the calculation sheet. It was also observed that the appellant
may be given an opportunity of hearing so far as the calculation of
interest is concerned. It is contended that pursuant to the said
order, the appellant sent an e-mail to the respondent-authority on
29.08.2016 stating therein that since 47th sitting of the matter was
fixed to 31.08.2016, due to some difficulties, it may be allowed
one month time to participate in the process of hearing in the next
sitting, but no reply was received. Consequentially, on 31.08.2016,
the appellant appeared and also filed a time petition, but the same
was not taken into consideration. However, on the very same day,
i.e., on 31.08.2016, without giving opportunity of hearing to the
appellant, direction was issued to pay the principal amount of
Rs.6,74,245/-and also interest amount of Rs.17,26,504.20. It is
contended that though initially demand was raised with regard to
interest amounting to Rs.4,23,215/-, but the same was enhanced to
Rs.17,26,504.20 and that too such enhancement was done without
giving opportunity of hearing to the appellant. Challenging the
order dated 31.08.2016, the appellant approached this Court by
filing W.P.(C) No.20768 of 2016, which was disposed of vide
order dated 26.04.2017, relegating the appellant to approach the
alternative forum under Section 34 of the Arbitration and
Conciliation Act and the appellant assailed the impugned award
before the learned District Judge having territorial jurisdiction
over the subject matter. As such, learned Single Judge disposed of
the matter giving liberty to the appellant to file appropriate
application before the learned District Judge. It is contended that
the observation made by the learned Single to the extent "since an
alternative forum is available to the appellant under Section 34 of
the Arbitration and Conciliation Act and the appellant assailed the
impugned award before the learned District Judge having
territorial jurisdiction over the subject matter", is not correct and,
as such, the same has been reflected erroneously. Therefore, the
appellant has approached this Court by filing the present writ
appeal.
5. Mr. P.K. Nayak, learned counsel for the respondent no.1
vehemently contended that against the order passed by the
MSEFC, no appeal lies, in view of the judgment of the apex Court
in the case of M/s India Glycols Limited v. Micro and Small
Enterprises Facilitation Council Medchal Malkajgiri (S.L.P.(C)
No. 9899 of 2023 disposed of on 06.11.2023). In any case, the
appellant has to approach the alternative forum, instead of
approaching this Court by filing the writ petition, in which the
order impugned has been passed, which has been challenged in the
present appeal. As such, the said order is nullity in the eye of law,
as the petitioner had to approach the appropriate forum.
6. Having heard learned counsel for the parties and after going
through the records, this Court finds that by order dated
19.07.2016 passed in W.P.(C) No. 18902 of 2015, the learned
Single Judge remanded the matter back to MSEFC for fresh
adjudication by giving opportunity of hearing to the appellant. It is
not in dispute before this Court that the appellant sought one
month time, vide letter dated 29.08.2016, in response to the notice
received by it, as the matter was posted to 31.08.2016, but the
same was not responded to. On the date fixed, i.e., on 31.08.2016,
when the matter was taken up, the appellant filed a time petition,
but the same was not considered. Rather, on the very same day,
the matter was disposed of demanding principal amount of
Rs.6,74,245/-, whereas the dispute was with regard to interest
amount of Rs.4,23,215/-, for which the matter was remitted back
for consideration and the same was enhanced to Rs.17,26,504/-.
Contention has been raised that the appellant was not given
opportunity of hearing by the MSEFC, while passing the order
enhancing the interest and, therefore, the appellant approached this
Court by filing W.P.(C) No. 20768 of 2016, which was disposed
of vide order dated 26.04.2017 stating that since alternative forum
is available under Section 34 of the Arbitration and Conciliation
Act, and, accordingly the appellant assailed the impugned award
before the learned District Judge having territorial jurisdiction
over the subject matter. As such, the learned Single Judge granted
liberty to the appellant to file appropriate application before the
learned District Judge. Therefore, it is contended that the
observation made by the learned Single Judge to the extent
"appellant assailed the impugned award before the learned District
Judge having territorial jurisdiction over the subject matter", is not
correct. But nothing has been placed on record to indicate as to
how that fact is not correct. If the observation made by the learned
Single Judge is not correct, then it is open to the appellant to file
appropriate application for modification or review of that order
instead of filing the writ appeal. So far as jurisdiction of writ
appeal is concerned, it is very limited to examine the correctness
of the order passed by the learned Single Judge bereft of other
questions which have been raised before this Court. If we look
into the order passed by the learned Single Judge, then we may
observe that since there is no dispute that forum is available to
challenge the order passed by the MSEFC and, as such, the same
has not been disputed by Mr. S.K. Acharya, learned counsel
appearing for the appellant, instead of approaching that forum, the
appeal preferred by the appellant cannot be sustained in the eye of
law. More so, in view of the judgment passed by the apex Court in
the case of M/s India Glycols Limited (supra), since against the
order passed by the MSEFC, no writ appeal lies as alternative
remedy is available under the statute, we do not find any illegality
or irregularity in the order dated 26.04.2017 passed by the learned
Single Judge in W.P.(C) No. 20768 of 2016.
7. Accordingly, the writ appeal merits no consideration and
the same is hereby dismissed.
8. Since as per the order dated 18.05.2017 passed in M.C.
No.211 of 2017 the appellant has already deposited Rs.5,00,000/-,
the same be refunded to the appellant along with accrued interest
after proper identification by the Registry.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Ashok
(M.S. RAMAN)
JUDGE
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 01-Dec-2023 15:06:16
