Delhi High Court - Orders
M/S Bharat Mineral And Chemical ... vs Union Of India And Anr on 7 October, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6929/2019 & CM APPLs. 28805/2019, 7827/2020,
40767/2021
M/S BHARAT MINERAL AND CHEMICAL INDUSTRIES
..... Petitioner
Through: Mr. Raman Kapur, Sr. Adv. with Mr.
Bhaskar Mishra, Mr. Manish Kumar,
Ms. Rajlakshmi, Ms. Srishti
Choudhary, Advs.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms. Aakanksha Kaul, Standing
Counsel for CMSS with Mr. Aman
Sahani, Mr. Manek Singh, Advs. for
R-2.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 07.10.2022
1. The Court notes that the instant writ petition had come to be preferred seeking the following reliefs:-
"(i) Issue a Writ of Certiorari/Mandamus setting aside/quashing the Impugned Order dated 25.03.2019 (ANNEXURE P-3) passed by the Respondent No. 2 (i) blacklisting the Petitioner for 2 years from participation in tenders floated by the Respondent No. 2; (ii) forfeiting the performance guarantee amount of Rs. 1,03,16,377 /- furnished by the Petitioner; (iii) withholding payments due to the Petitioner amounting to Rs. 4,09,45,831/-; and (iv) reserving its right to take punitive/legal action to recover any balance outstanding against the Petitioner;
(ii) Impose heavy cost on the Respondents for their arbitrary and malafide actions;"
2. An objection is taken by Ms. Kaul, learned counsel appearing for the Central Medical Services Society [CMSS] who contends that insofar as the reliefs relating to the performance bank guarantee and withheld amounts are Signature Not Verified Digitally Signed By:NEHA Signing Date:10.10.2022 17:28:09 concerned, the petitioner had initiated proceedings in respect thereof under the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 ["the MSME Act].
3. In terms of the provisions made in Section 18 of the MSME Act, the matter appears to have been referred to arbitration. In the arbitration proceedings, the petitioner is stated to have submitted an undertaking on 08 September 2021 to the extent that the same was being pursued only in respect of unpaid invoices, security deposits, replacement invoices along with interest. The petitioner had further averred that it would not pursue those reliefs in the writ petition. In view of the above, it was contended that the only issue which now survives is the validity of the order of 25 March 2019.
4. Ms. Kaul, learned counsel appearing for the respondent, however, relying upon the decisions rendered by the Court in Prabhatam Advertisement Pvt. Ltd. versus Municipal Corporation of Delhi [2015 SCC OnLine Del 14501] and Satish Chand Rajesh Kumar Pvt. Ltd. versus New Delhi Municipal Council and Anr. [2022 SCC OnLine Del 1220] submits that blacklisting too was an issue which could have been duly agitated before the Arbitral Tribunal and since the petitioner failed to do so, it stands precluded from pursuing reliefs in respect thereof in the present writ petition.
5. Learned Senior Counsel appearing for the petitioner, on the other hand, contends that the order of blacklisting itself was based on an alleged failure on the part of the petitioner to discharge its contractual obligations and in respect of which the Arbitral Tribunal has ultimately held in favor of the petitioner. It was further submitted that proceedings of reference which Signature Not Verified Digitally Signed By:NEHA Signing Date:10.10.2022 17:28:09 are made under the MSME Act and more particularly under Section 18 thereof do not contemplate the Tribunal so constituted going into the validity of an order of blacklisting.
6. In order to evaluate the rival submissions, let a copy of the Award which has been ultimately rendered by the Arbitral Tribunal be placed on the digital record.
7. List again on 28.03.2023.
YASHWANT VARMA, J.
OCTOBER 7, 2022 neha Signature Not Verified Digitally Signed By:NEHA Signing Date:10.10.2022 17:28:09