M/S Sgi Power Limited vs M/S Himachal Wire Ind. Pvt. Ltd on 11 April, 2018

[Cites 8, Cited by 1]

Himachal Pradesh High Court

M/S Sgi Power Limited vs M/S Himachal Wire Ind. Pvt. Ltd on 11 April, 2018

Bench: Tarlok Singh Chauhan

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                         Arb. C. Nos. 20 & 21 of 2018
                                         Decided on: 11.04.2018

    Arb.C. No. 20 of 2018




                                                             .
    M/s SGI Power Limited                                ...Petitioner/Objector





                            Versus
    M/s Himachal Wire Ind. Pvt. Ltd.                  ...Respondent/Claimant





    Arb.C. No. 21 of 2018
    M/s SGI Power Limited                                ...Petitioner/Objector
                            Versus





    M/s Himachal Steel & Wires                       ...Respondent/Claimant

    Coram

    The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
    Whether approved for reporting? Yes.

    For the petitioner:            Mr. Shivank Singh Panta, Advocate.

    For the respondent:            Mr. Atul Jhingan, Advocate



    Justice Tarlok Singh Chauhan, Judge (Oral)

Both these petitions have been preferred by the petitioner/objector/judgment debtor under Section 34 of the Arbitration and Conciliation Act (for short the 'Act') read with Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (for short 'MSME Act').

2. At the outset, it may be observed that an application for setting aside the decree, award or order under Section 19 is maintainable only with pre-condition of deposit 75% of the decreetal or award amount, which reads thus:-.

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"19. Application for setting aside decree, award or order.- No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be .

entertained by any court unless the appellant (not being a supplier) has deposited with it seventy-five per cent of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court:

Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of the amount deposited shall be paid to the supplier, as it considers reasonable under the circumstances of the case subject to such conditions as it deems necessary to impose."

3. It is not in dispute that the award passed by the learned Arbitrator was on the basis of the reference made by the Council under Section 18 of the Act.

4. At this stage, it would be necessary to refer to Section 24 which gives an overriding effect to the provisions of Sections 15 to 23 of the MSME Act or any other law for the time being in force and read thus:-

"24. Overriding effect.- The provisions of sections 15 to 23 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."

5. Evidently, Section 24 starts with non obstante clause and it is well known that a non obstante clause is a legislative device which is usually implied to give overriding effects to certain provisions over contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid operation and effect of contrary provisions.

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6. In Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447, the scope of non obstante clause was explained in the following words:

.

A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment.

7. Since, the objector has not complied with the provisions of Section 19 of the MSME Act, by depositing 75% of the decreetal award amount, therefore, these appeals are not maintainable and dismissed as such, leaving the parties to bear their costs.

(Tarlok Singh Chauhan), Judge.

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