Himachal Pradesh High Court
Controller Of Stores vs Unknown on 14 September, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CARAP No. 7 of 2018 in CARBC No.6 of 2018
Date of Decision 14th September, 2018
_________________________________________________________________
In Re-
M/s CBM Industies Ltd. & another
Controller of Stores, Northern Railway
Versus
....Petitioner
....Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1
________________________________________________________________________
For the Petitioner: Mr. Deepak Jain Senior Panel
Counsel with Mr.Tanpreet Gulati
and Ms. Twisha Issar, Advocates.
For the Respondents: Ms. Shalini Thakur, Advocate.
__________________________________________________________________
Vivek Singh Thakur, J.(Oral)
This application has been filed seeking following reliefs:-
a) pass an order, granting a stay on the operation of the impugned order dated 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 1 ::: Downloaded on - 18/09/2018 22:58:48 :::HCHP 2 5.3.2018 till the pendency of the proceedings .
before this Hon'ble Court.
b) pass an order, waiving the pre-deposit amount for challenging the said impugned award before this Hon'ble Court.
c) pass an order, reducing the pre-deposit amount if under any circumstances the prayer
(b) is not allowed.
2. Waiving of pre-deposit amount for challenging the impugned award has been sought mainly on the grounds that The Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter MSMED Act, 2006) was and is not applicable in the present case as at the time of transaction involved in dispute, respondent company was not having status of 'supplier' as defined under Section 2(n) of MSMED Act for want of registration/filing of memorandum with authority required under the said Act and dispute in question is prior in time to the applicability of the MSMED Act with regard to transaction in reference in dispute between parties and for resolution of dispute there was ::: Downloaded on - 18/09/2018 22:58:48 :::HCHP 3 prior arbitration agreement and procedure therein is .
different than procedure to be adopted under MSMED Act 2006 and petitioner had also assailed appointment of Arbitrator under MSMED Act 2006 by filing a CWP No. 967 of 2017 in this High Court and thus pre-condition of deposit of seventy five percent of awarded amount for entertaining petition for setting aside impugned award is not applicable, inter-alia amongst other grounds taken in application as well as in the main appeal.
3. The prayer of the petitioner has been opposed by the respondent reserving its right to raise further grounds in future at the time of hearing of main matter, mainly on the grounds that respondent company is duly registered entity with concerned Authority as required under MSMED Act 2006 and is a 'supplier' in terms of Section 2 (n) of the said Act and thus for resolution of dispute between the parties, MSMED Act 2006 is applicable and the Arbitrator was rightly appointed under the said Act and award passed by him is legal and valid in all respects and therefore, petitioner ::: Downloaded on - 18/09/2018 22:58:48 :::HCHP 4 cannot be permitted to prefer petition for settting aside .
impugned award without deposit of at least 75% of amount awarded by the Arbitrator as provided under Section 19 read with Sections 24 and 32 of the MSMED Act and that CWP No. 967 of 2017 preferred by the petitioner against the appointment of the Arbitrator also stands disposed of being infructuous on account of subsequent events on 11.9.2018.
4. Learned counsel for the parties have cited various judgments in support of their claims, but, keeping in view the practice of this Court, for order proposed to be passed hereinafter I feel that there is no necessity to discuss those pronouncements at this stage, but same may have require consideration at the time of final hearing of main petition.
5. Section 18(3) of the MSMED Act provides that on reference of dispute by Micro and Small Enterprises Facilitation Council (in short the Council) for arbitration to resolve the dispute, the provisions of Arbitration and Conciliation Act (for short "the Arbitration Act") shall then ::: Downloaded on - 18/09/2018 22:58:48 :::HCHP 5 apply to the dispute as if the arbitration is in pursuance of .
arbitration agreement referred to in Section 7(i) of that Act.
Section 7(i) of the Arbitration Act provides that "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, meaning thereby after reference of dispute for resolution through arbitration by the Council under Section 18 (3) of MSMED Act, the provisions of Arbitration Act shall be applicable and in an application or petition filed for assailing the award passed by the Arbitrator also procedure as provided under the Arbitration Act shall be applicable. However, Section 19 of MSMED Act provides the pre-condition of deposit of 75 % of the amount in terms of award for entertaining an application for setting aside the award passed by the Arbitrator in a dispute referred to him under Section 18(3) of the said Act.
::: Downloaded on - 18/09/2018 22:58:48 :::HCHP 66. In a petition under Section 34 of the Arbitration .
Act, operation of stay of impugned arbitral award can be stayed by the Court subject to such conditions as deemed fit by the Court provided that at the time of staying the application for grant of stay in a case of arbitral award for payment of money the Court shall have due regard to the provisions of grant of stay of money decree under the provisions of Civil Procedure Code, 1908 wherein it is provided that Court may on such terms as to security or otherwise, as it thinks fit stay execution of decree and if the decree is one for payment of money the Court shall record its reasons for staying the award without requiring security.
As per practice of this Court, normally stay in money decree is granted subject to deposit of entire awarded amount along with upto date interest in the Registry of this Court.
7. Therefore, leaving all issues raised by the petitioner and contested by the respondent, open to be decided in the main petition, subject to deposit the entire awarded amount along with upto date interest within eight ::: Downloaded on - 18/09/2018 22:58:48 :::HCHP 7 weeks from today in the Registry of this Court, execution .
and operation of the impugned award dated 5.3.2018 passed by learned Arbitrator is stayed till further order.
Alteration, modification or vacation on motion. Application stands disposed of.
Dasti copy on usual terms.
September 14, 2018 (Vivek Singh Thakur)
(ms) Judge
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