Calcutta High Court
Hindustan Petroleum Corporation ... vs The West Bengal State Micro Small ... on 6 September, 2023
Author: Hiranmay Bhattacharyya
Bench: T.S. Sivagnanam, Hiranmay Bhattacharyya
OD 3
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/203/2023
IA NO: GA/1/2023
HINDUSTAN PETROLEUM CORPORATION LIMITED AND ANR.
VS
THE WEST BENGAL STATE MICRO SMALL ENTERPRISES FACILITATION COUNCIL AND ORS.
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 6TH September, 2023
Appearance :
Mr. Kishore Dutta, Sr. Adv.
Mr. Prasun Mukherjee, Adv.
Mr. Deepak Agarwal, Adv.
...for HPCL
Mr. Soumitra Mukherjee, Adv.
...for MSME Council
Mr. Subhash Madra, in person
....for Madra Construction
The Court : - We have heard Mr. Kishore Dutta, learned Senior Advocate
appearing for the appellant and Mr. Soumitra Mookerjee, learned Advocate appearing
for the MSME Council and Mr. Subhas Madra representing the third respondent
proprietorship firm. Earlier when the appeal was entertained an interim order was granted on 12.7.2023. However on the said date the third respondent in the appeal was not present and the order was passed after hearing the learned Advocate for the appellant and the learned Advocate appearing for MSME Council. Thereafter on the next hearing date that is on 2.8.2023 Mr. Madra on behalf of the third respondent appeared and the matter stood adjourned to this date. After we have elaborately heard learned Advocates for the parties we are of the view that a slight conciliatory approach is required in this matter. Primarily, taking note of two factors, firstly the claim made by the third respondent before the MSME Council it is yet to be adjudicated on its merits. Second factor is that the third respondent is appearing in person before this Court and submits that substantial sums of money which according to him is payable 2 by the HPCL, has not been released. As a result, he is in great financial distress. The legal issue which was raised by HPCL before the Council at the first instance even at the conciliation stage was that Council does not have jurisdiction. We have gone through the submissions made by HPCL and we find that in the said submission nothing has been mentioned about the merits of the claim of the third respondent before the Council. But the objection was to the jurisdiction of the Council to entertain the claim on the ground that the works allotted to the third respondent was a works contract and it is outside the purview of MSME Act. This legal issue which was agitated by HPCL before the learned Single Judge was decided against them and the writ petition was dismissed.
Aggrieved by such order the present appeal has been filed in which we had granted an interim order, of course on the said day the third respondent was not heard. Be that as it may, the third respondent obviously would be interested in securing the amount payable to him rather than canvassing a case on a legal issue with regard to the jurisdiction of the Council to decide the matter. Therefore, we are of the view that a conciliatory approach is required in the matter and we opined that MSME Council is the best body which can examine the merits of the claim keeping the legal issue open which will be decided by this Court in this appeal, in the event, the Council is unable to bring the parties to a consensus on the merits of the claim. Therefore, we are of the view that the matter should be remanded back to the Council for a conciliation on merits keeping the legal issue canvassed by the appellant in this appeal open to be decided in the appeal.
Accordingly, the matters stand remitted to the Council and the Council shall without reference to any of the orders passed earlier, nor any observation made touching upon the jurisdiction by the learned Single Bench, nor any observation made by us in the interim order dated 12.7.2023 shall direct the parties namely the appellant and the third respondent herein to appear before the Council for a limited purpose of conciliation in which the parties shall be directed to make their submissions on the 3 merits of the claim made by the third respondent against the appellant HPCL. The report of such conciliation be placed before this Court on the next hearing date.
The appellant being a public sector organization, is also bound by the litigation policy framed by the Central Government and it should be endeavour of a public sector to ensure that issue that can be resolved to conciliation and mediation should not be dragged into litigation, as it will cause the public exchequer substantial sums of money and when the interest of the third respondent is pitted against that of the interest of the appellant HPCL, the Court would opine the interest of the third respondent also needs to be gone into. Hence, we hope and trust that the officials of the appellant shall have an open mind and initiate a dialogue before the Council on the merits of the claim of third respondent and the Council shall endeavour its level best to resolve the issue during the conciliation proceeding. The outcome of the conciliation proceeding shall be filed in the form of a report by the Council. We make it clear that the legal issue which has been raised by the appellant is kept open and will be decided in this appeal if need arises to do so and in the conciliation proceeding the issue regarding jurisdiction of the Council shall not be canvassed or decided. Since the matter has been lingering for quite some time before the Single Bench as well as before this Court we request MSME Council to commence the conciliation proceeding preferably within one week from the date of receipt of the server copy of this Court and conclude the same preferably within a week thereafter and file a report before this Court on the next date of hearing.
List this matter on 4th October, 2023.
(T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) SN/PKD/GH/S.Das