Rajasthan High Court - Jodhpur
Union Of India vs M/S. Nilloy Newsun Technology ... on 6 August, 2021
Bench: Arun Bhansali
(1 of 3) [CMA-2112/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2112/2019
1. Union Of India, Through Head Quarter Commander Works
Engineer, Jodhpur.
2. Garrison Engineer, Air Force Station, Jaisalmer.
----Appellants
Versus
Nilloy Newsun Technology Pvt. Ltd., Shridham, 3Rd Floor, R-20
Yudhishtir Marg, C-Scheme, Jaipur.
----Respondent
For Appellant(s) : Mr. Mukesh Rajpurohit, ASG with Mr.
Navneet Singh Birkh.
Mr. Rajendra Katariya.
For Respondent(s) : Mr. Manoj Bhandari.
Mr. Mehul Kothari.
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment
06/08/2021
This appeal purportedly under Order XLIII, Rule 1 CPC has
been filed against the orders dated 16.02.2017 & 28.06.2017
passed by the Rajasthan Micro and Small Enterprises Facilitation
Council, Jaipur ('the Council'), whereby an order has been passed
under Section 18 of the Micro, Small and Medium Enterprises
Development Act, 2006 ('the Act') for making payment of a sum
of Rs. 13,01,781/-, which order has been amended by order dated
28.06.2017 and it has been ordered that payment of Rs.
32,12,138/- be made.
The appeal has been filed before this Court on 10.01.2019
and the office has pointed out that the same is barred by 471
days. Alongwith the appeal, an application under Section 5 of the
Limitation Act, 1963 has been filed.
(2 of 3) [CMA-2112/2019]
Notice of application under Section 5 of the Limitation Act
was issued to the respondents on 13.02.2020.
Response to the application has been filed. Before
appearance of the respondent, a second stay petition was filed, on
which, a Co-ordinate Bench of this Court by order dated
08.04.2021 stayed the effect & operation of the order dated
18.02.2021 passed by the Commercial Court, Jodhpur in
Execution case No.664/2020, filed seeking execution of the
impugned orders.
Learned counsel for the respondent besides making
submissions on the application under Section 5 of the Limitation
Act submitted that the appeal itself is not maintainable before this
Court and as such, the same deserves to be dismissed.
It is submitted that the Council has passed the order under
Section 18 of the Act with reference to provisions of Section 16 of
the Act regarding payment of interest. Sub-section (3) of Section
18 makes provisions of Arbitration and Conciliation Act, 1996 ('Act
of 1996') applicable to the disputes before the Council and as the
orders impugned are awards passed by the Council, under Section
19 of the Act proceedings can be instituted before the competent
court.
It is submitted that under Section 34 of the Act of 1996, the
proceedings would lie before the Principal Civil Court or competent
Commercial Court. The appeal filed purportedly under Order XLIII
CPC, is not maintainable and as such, the same deserves to be
dismissed.
Learned counsel for the appellants made submissions that
based on the advise of the then counsel representing the
appellant, the present appeal has been filed and that looking to
(3 of 3) [CMA-2112/2019]
the huge amount involved, the appellants may be granted
indulgence.
I have considered the submissions made by learned counsel
for the parties and have perused the material available on record.
It is not in dispute that the order dated 16.02.2017 and
modification order dated 28.06.2017 are in the nature of awards
as the proceedings under Section 18(3) of the Act are required to
be conducted before the Council, under the Arbitration Act. Once
the orders passed are in the nature of award, the only provision
whereby an award could be challenged is under Section 34 of the
Act of 1996 by filing application for setting aside of the award.
In these circumstances, filing of the present appeal before
this Court that also purportedly under Order XLIII, Rule 1 CPC is
wholly misconceived and as such, the appeal cannot be
entertained.
In view thereof, the appeal is dismissed as not maintainable.
The appellant would be free to take appropriate proceedings
before appropriate forum in accordance with law.
(ARUN BHANSALI),J
33-Rmathur/-
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