Madras High Court
The Tamil Nadu Cements Corporation ... vs Micro And Small Enterprises ... on 13 July, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.7633 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 06.07.2022
Pronounced On 13.07.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.7633 of 2022
and
W.M.P.Nos.7642 & 7643 of 2022
The Tamil Nadu Cements Corporation Limited,
AavinIllam - 5th Floor,
No.3A, Pasumpon Muthramalainganar Salai,
Nandanam, Chennai – 600 035.
Rep. by its Manager (Materials) in Charge. ... Petitioner
Vs.
1.Micro and Small Enterprises Facilitation Council,
Coimbatore Region,
District Industries Centre / Zonal Office,
No.2, Raja St., Coimbatore – 641 049.
Rep. by its General Manager.
2.M/s.Unicon Engineers,
No.513-A/6, Bharathi Road,
Chinnavedampatty,
Coimbatore – 641 049,
Rep. by Managing Partner, P.Ponram. ... Respondents
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 25
W.P.No.7633 of 2022
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, to call for the records
of the first respondent in Case No.M & SEFC / CBER / 11/ 2016 dated
04.06.2016 and the consequential order in R.C.No.436/D3/2014 dated
25.10.2016 and quash the same and consequently direct the second
respondent to return the amount withdrawn till date with interest.
For Petitioner : Mr.A.Edwin Prabakar
For R1 : Mr.U.Bharanidharan,
Additional Government Pleader
For R2 : Mr.B.Manoharan
ORDER
The petitioner has filed this Writ Petition praying to quash the impugned order dated 04.06.2016 in Case No.M & SEFC / CBER / 11 / 2016 and the consequential impugned order dated 25.10.2016 in R.C.No.436/D3/2014 and consequently, to direct the second respondent to return the amount withdrawn till date with interest.
2. The petitioner had floated a Tender Notice dated 27.01.2010 for Design, Supply, Erection and Commissioning of 2 Nos. of Electrostatic ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 25 W.P.No.7633 of 2022 Precipitator (ESP) for Clinker Coolers at Ariyalur Cement Unit on turn- key basis under the provisions of Tamil Nadu Transparency in Tender Act, 1998 and the Tamil Nadu Transparency in Tender Rules, 2000. The second respondent was declared as the successful bider. Thereafter, the petitioner issued a work order to the second respondent on 16.04.2010.
3. It appears that the work carried out by the second respondent was not to the satisfaction of the petitioner and therefore payments were not fully settled by the petitioner to the second respondent. Under these circumstances, the second respondent approached the first respondent by filing application under the provisions of the Mirco, Small and Medium Enterprises Development Act, 2006. The first respondent, taking cognizance of the application filed by the second respondent, disposed the same vide impugned order dated 04.06.2016 in Case No. M & SEFC / CBER / 11 / 2016.
4. By the impugned order dated 04.06.2016, the first respondent directed the petitioner to pay the balance retention amount of Rs.39,66,144/- along with interests due to piecemeal releases of the total ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 25 W.P.No.7633 of 2022 retention amount of Rs.1,17,57,399/- with effect from 31.03.2011 and Rs.1,57,59,537/- along with interests with effect from 17.01.2014 towards additional expenditures incurred by the second respondent due to the delay of three years in execution of civil works by the petitioner together with compounded interest with monthly rest, at three time of the Bank rate notified by the Reserve Bank of India as stipulated in Mirco, Small and Medium Enterprises Development Act, 2006 from the appointed due dates respectively, to the second respondent, till the date of settlement. The operative portion of the impugned order dated 04.06.2016 reads as under:-
Therefore, the Respondent shall be liable to pay the balance retention amount of Rs.39,66,144/- along with interests due to piecemeal releases of the total retention amount of Rs.1,17,57,399/- with effect from 31.03.2011 & (2) Rs.1,57,59,537/- along with interests with effect from 17.01.2014 towards additional expenditures incurred by the petitioner due to the delay of 3 years in execution of civil works by the respondent together with compounded interest with monthly rest, at three time of the Bank rate notified by the Reserve Bank of India as stipulated in MSMED Act, 2006 from the appointed due dates respectively as above to the petitioner, till the date of settlement.
______________ https://www.mhc.tn.gov.in/judis Page No 4 of 25 W.P.No.7633 of 2022
5. Aggrieved by the aforesaid order, the petitioner first filed a revision petition under Section 33 of the Arbitration and Conciliation Act, 1996 before the first respondent. It came to be disposed by the second mentioned impugned order dated 25.10.2016. The relevant portion of the said impugned order dated 25.10.2016 reads as under:-
I inform that M/s.Unicon Engineers, Coimbatore filed a petition at this council on 17.01.2014 against Tamilnadu Cements Corporation Ltd. (TANCEM), Chennai – 600002 for settlement of belated payment. After furnishing ample opportunities to both sides and based on all available records, the judgment was ordered on 04.06.2016. Now, (TANCEM) has applied for readmission of the case.
In this connection, I inform that your application filed under section (33) of the Arbitration and Conciliation act 1996 could not be considered for re- admission due to the following reasons:
1. The revision petition has been submitted at this council after a time period of more than 30 days.
Also, the other party, namely, M/s.Unicon Engineers, Coimbatore has not agreed for admission as communicated vide its two letters of objection for the admission of your petition after the limitation period of 30 days. The copies of the said letters are enclosed for your reference.
2. Further, there is no provision to admit your petition praying to set aside / recall the award passed by the council on 04.06.2016.
______________ https://www.mhc.tn.gov.in/judis Page No 5 of 25 W.P.No.7633 of 2022 Hence, your petitions dated 19.09.2016 & 06.10.2016 could not be considered by the council.
6. In the light of the above orders, the second respondent filed E.P.No.7 of 2017 before the Master Court of this Court.
7. Meanwhile, the petitioner challenged the vires of Sections 16 to 19 of the Mirco, Small and Medium Enterprises Development Act, 2006 in W.P.No.29101 of 2017. In the said proceedings, the petitioner also moved W.M.P.Nos.31363 to 31366 of 2017 for the following reliefs:-
Sl. W.M.P.No. Prayer
No.
1 31363/2017 To stay all further proceedings in E.P.No.242 of 2017 on the file of City Civil Court (Xth Asst. City Civil Court, Chennai) Chennai pending disposal of W.P.No.29101 of 2017.
2 31364/2017 To stay all further proceedings pursuant to the order in Case No. M & SEFC / CBER / 11 / 2016 dated 04.06.2016 pending disposal of W.P.No.29101 of 2017.
3 31365/2017 To stay all further proceedings in E.P.No.7 of 2017 on the file of Original Side of this Court pending disposal of W.P.No.29101 of 2017 4 31366/2017 To declare Sections 16 to 19 of The Mirco, Small and Medium Enterprises Development Act, 2006 (Central Act 27 of 2006) as ultravires, unconstitutional, arbitrary and violates Art. 14 and 19 of The Constitution of India.
______________ https://www.mhc.tn.gov.in/judis Page No 6 of 25 W.P.No.7633 of 2022
8. All the above W.M.Ps. were dismissed by this Court vide order dated 29.04.2019. It is informed that W.P.No.29101 of 2017 has now been transferred to the Hon'ble Supreme Court in the light of challenge to the vires of Sections 16 to 19 of the Mirco, Small and Medium Enterprises Development Act, 2006, to be heard along with the connected Writ Petitions transferred by different High Courts. The said Writ Petition is now pending before the Hon'ble Supreme Court along with the connected cases.
9. Meanwhile, it appears that the petitioner filed Application No.4846 of 2017 in E.P.No.7 of 2017 before the Master Court of this Court, to declare the award dated 04.06.2016 passed by the first respondent in Case No. M & SEFC / CBER / 11 / 2016 which is impugned in this Writ Petition, as illegal, null and void in the said E.P. The said Application was dismissed as not maintainable vide order dated 10.10.2017.
10. Aggrieved by the same, the petitioner filed A.Nos.7278 & 7279 of 2017 before the Original Side of this Court, to set aside the order dated ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 25 W.P.No.7633 of 2022 10.10.2017 in Application No.4846 of 2017 in E.P.No.7 of 2017 passed by the Master Court of this Court and to say further proceedings in E.P.No.7 of 2017 respectively. In the said Applications, this Court directed the official of the petitioner and the second respondent to be present before this Court vide interim order dated 03.01.2018.
11. Meanwhile, it appears that the petitioner had filed O.P.D.No.820 of 2017 under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 and moved A.No.956 of 2018 for waiver of the pre-deposit of 75% of the Award amount as stipulated under Section 19 of the Mirco, Small and Medium Enterprises Development Act, 2006. The said application was disposed of with a direction to the petitioner to pay the pre-deposit as stipulated under Section 19 of the Mirco, Small and Medium Enterprises Development Act, 2006, within a period of eight weeks from the date of the order vide order dated 20.07.2018.
12. Later, an order dated 22.01.2018 was passed by the learned Single Judge in A.Nos.7278 & 7279 of 2017 by remitting the case back ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 25 W.P.No.7633 of 2022 to the Master Court of this Court. Aggrieved by the same, the second respondent filed O.S.A.No.157 of 2018 against the said order. O.S.A.No.157 of 2018 was allowed by the Division Bench of this Court vide order dated 05.12.2018. It set aside the order dated 22.01.2018 of the learned Single Judge in A.Nos.7278 & 7279 of 2017. Relevant portion of the order reads as under:-
7. We are at the stage of implementation of the Award. The respondent has also filed the original petition challenging the Award. However, there was no compliance of mandatory pre-deposit. Perhaps, that is the reason why, the application was not numbered enabling the respondent in getting appropriate interim orders. However, we are not concerned with the said issue in this proceedings.
8. The Award passed by the Tribunal cannot be equated with a decree in a suit. However, the execution can be laid to give effect to the award.
Section 47 of the Civil Procedure Code deals with consideration of all questions arising between the parties to the suit in which, a decree was passed. Therefore, the aforesaid provision cannot be extended to the arbitration Tribunal. After all, the object of the Arbitration and Conciliation Act, 1996, is that any Award passed must be subjected very little external interference except to the extent permissible, which is inclusive of Civil Court.
9. In the case on hand, the respondent has also filed the original petition challenging the Award. Therefore, having undertaken the aforesaid exercise ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 25 W.P.No.7633 of 2022 raising the very same grounds, it is not open to it to file an application invoking the provision under Section 47 of the Civil Procedure Code, even assuming the same is maintainable in law.
10. Thus, looking from any perspective, we are of the considered view that the order of the learned single Judge cannot be sustained in the eye of law. There is no need for remand when the application itself is not maintainable. In such view of the matter, we are inclined to allow this Original Side Appeal. Accordingly, the order passed by the learned single Judge is set aside and original side appeal stands allowed. However, we make it clear that we have not expressed anything on the maintainability of the original petition filed nor on the issues raised therein. No costs. Consequently, connected civil miscellaneous petition is also dismissed.
13. During the interregnum, the Master Court issued attachment order dated 25.02.2019 in E.P.No.7 of 2017 on the properties of the petitioner. The petitioner appears to have filed A.No.1964 of 2019 to stay the operation of the order dated 25.02.2019 in E.P.No.7 of 2017 before this Court. This Court granted an interim stay the operations of order dated 25.02.2019 vide order dated 11.03.2019
14. The petitioner deposited amount as is contemplated under Section 19 of the Mirco, Small and Medium Enterprises Development ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 25 W.P.No.7633 of 2022 Act, 2006. The petitioner also filed O.P.Nos.692 & 1030 of 2019 and against the impugned award dated 04.06.2016 of the first respondent.
15. Since the time for filing statutory appeal under Section 34 of the Arbitration and Conciliation Act, 1996 as made applicable to pass award under Section 19 of the Mirco, Small and Medium Enterprises Development Act, 2006, had expired, both O.P.Nos.692 & 1030 of 2019 were dismissed by the learned Single Judge by an order dated 09.09.2021. Aggrieved by the same, the petitioner also filed O.S.A.No.55 of 2022. However, the petitioner withdrew the same on 28.04.2022 after filing of this Writ Petition on 21.03.2022 challenging the impugned orders dated 25.10.2016 and 04.06.2016.
16. The impugned order passed by the first respondent are challenged primarily on the ground that the impugned award dated 04.06.2016 is not a Award within the meaning of Section 29 of the Arbitration and Conciliation Act, 1996 for it to be set aside under Section 19 of the Mirco, Small and Medium Enterprises Development Act, 2006. It is submitted that earlier proceedings under Section 19 of the Mirco, ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 25 W.P.No.7633 of 2022 Small and Medium Enterprises Development Act, 2006 read with Section 34 of the Arbitration and Conciliation Act, 1996 were filed by mistake as the impugned awards cannot be said to be Award as no Arbitration has taken place after the conciliation failed before the first respondent. In this connection, a reference was made to paragraph No.1 in internal page No.6 of the impugned order dated 04.06.2016 which reads as under:-
In view of above facts and circumstances, the council ordered that the applicant is free to approach the council for arbitration as conciliation between them has failed.
............
The council direct that the petitioner is entitled to recover the balance retention amount of Rs.39,66,144/- along with interests due to piecemeal releases of the total retention money of Rs.1,17,57,399/- with effect from 31.03.2011 & (2) Rs.1,57,59,537/- along with interests with effect from 17.01.2014 towards additional expenditure incurred by the petitioner due to the delay of 3 years in execution of civil works by the respondent.
17. It is submitted that though the proceedings were initiated with filing of an application on 26.12.2013, the proceedings were held only for four days, i.e. 14.10.2014, 17.02.2015, 12.12.2016 and 04.06.2016.
Thereafter, it was concluded by the first respondent Council that the ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 25 W.P.No.7633 of 2022 conciliation failed between the petitioner and the second respondent. It is submitted that after having recorded that the conciliation failed between the parties to the dispute, the first respondent Council ought to have ordered that the applicant (the second respondent) was free to approach the council for arbitration. It is submitted that there was no arbitration proceedings and straightaway the first respondent Council has proceeded to pass the impugned award on 04.06.2016.
18. It is submitted that the impugned award is not an Award within the meaning of the Arbitration and Conciliation Act, 1996. In this connection, a reference was made to the decision of the Hon'ble Supreme Court in Jharkhan Urja Vikar Nigam Limited Vs. State of Rajasthan and Others, 2021 SCC OnLine 1257, wherein, paragraph Nos.11 to 16, the Hon'ble Supreme Court held as under:-
11. From a reading of Section 18(2) and 18(3) of the MSMED Act it is clear that the Council is obliged to conduct conciliation for which the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 would apply, as if the conciliation was initiated under Part III of the said Act. Under Section 18(3), when conciliation fails and stands terminated, the dispute between the ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 25 W.P.No.7633 of 2022 parties can be resolved by arbitration. The Council is empowered either to take up arbitration on its own or to refer the arbitration proceedings to any institution as specified in the said Section. It is open to the Council to arbitrate and pass an award, after following the procedure under the relevant provisions of the Arbitration and Conciliation Act, 1996, particularly Sections 20, 23, 24, 25.
12. There is a fundamental difference between conciliation and arbitration. In conciliation the conciliator assists the parties to arrive at an amicable settlement, in an impartial and independent manner.
In arbitration, the Arbitral Tribunal/arbitrator adjudicates the disputes between the parties. The claim has to be proved before the arbitrator, if necessary, by adducing evidence, even though the rules of the Civil Procedure Code or the Indian Evidence Act may not apply. Unless otherwise agreed, oral hearings are to be held.
13. If the appellant had not submitted its reply at the conciliation stage, and failed to appear, the Facilitation Council could, at best, have recorded the failure of conciliation and proceeded to initiate arbitration proceedings in accordance with the relevant provisions of the Arbitration and Conciliation Act, 1996, to adjudicate the dispute and make an award. Proceedings for conciliation and arbitration cannot be clubbed.
14. In this case only on the ground that the appellant had not appeared in the proceedings for conciliation, on the very first date of appearance, that is, 06.08.2012, an order was passed directing the appellant and/or its predecessor/Jharkhand State Electricity Board to pay Rs. 78,74,041/- towards the ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 25 W.P.No.7633 of 2022 principal claim and Rs. 91,59,705/- odd towards interest. As it is clear from the records of the impugned proceedings that the Facilitation Council did not initiate arbitration proceedings in accordance with the relevant provisions of the Arbitration and Conciliation Act, 1996.
15. The order dated 06.08.2012 is a nullity and runs contrary not only to the provisions of MSMED Act but contrary to various mandatory provisions of Arbitration and Conciliation Act, 1996. The order dated 06.08.2012 is patently illegal. There is no arbitral award in the eye of law. It is true that under the scheme of the Arbitration and Conciliation Act, 1996 an arbitral award can only be questioned by way of application under Section 34 of the Arbitration and Conciliation Act, 1996. At the same time when an order is passed without recourse to arbitration and in utter disregard to the provisions of Arbitration and Conciliation Act, 1996, Section 34 of the said Act will not apply. We cannot reject this appeal only on the ground that appellant has not availed the remedy under Section 34 of the Arbitration and Conciliation Act, 1996. The submission of the learned senior counsel appearing for the 3rd respondent that there was delay and laches in filing writ petition also cannot be accepted. After 06.08.2012 order, the appellant after verification of the records has paid an amount of Rs. 64,43,488/- on 22.01.2013 and the said amount was received by the 3rd respondent without any protest. Three years thereafter it made an attempt to execute the order in Execution Case No. 69 of 2016 before the Civil Judge, Ranchi, which ultimately ended in dismissal for want of territorial jurisdiction, vide order dated 31.01.2017. Thereafter S.B. Civil Writ Petition No. 11657 of 2017 was filed questioning the order dated ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 25 W.P.No.7633 of 2022 06.08.2012 before the Rajasthan High Court. In that view of the matter it cannot be said that there was abnormal delay and laches on the part of the appellant in approaching the High Court. As much as the 3rd respondent has already received an amount of Rs. 63,43,488/- paid by the appellant, without any protest and demur, it cannot be said that the appellant lost its right to question the order dated 06.08.2012. Though the learned counsel appearing for the respondents have placed reliance on certain judgments to support their case, but as the order of 06.08.2012 was passed contrary to Section 18(3) of the MSMED Act and the mandatory provisions of the Arbitration and Conciliation Act, 1996, we are of the view that such judgments would not render any assistance to support their case.
16. For the aforesaid reasons, this civil appeal is allowed, the impugned judgment and order is set aside. Consequently, the order/award dated 06.08.2012 passed by the 2nd respondent stand quashed. However, it is open to the 2nd respondent- Council to either take up the dispute for arbitration on its own or refer the same to any institution or centre providing alternate dispute resolution services, for resolution of dispute between the parties. It is needless to observe that for such arbitration, the Council shall follow the provisions of Arbitration and Conciliation Act, 1996 before passing any award. As we have not gone into merits of the claim made by 3rd respondent, it is open for the arbitral tribunal, to decide the matter on its own merits.
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19. It is submitted that the impugned award dated 04.06.2016 was a nullity as there was no arbitration in the eye of law. It is submitted that as per Section 18(2) of the Mirco, Small and Medium Enterprises Development Act, 2006, on receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act.
20. It is submitted that so called award dated 04.06.2016 impugned herein is an order passed under Part III of the Arbitration and Conciliation Act, 1996 and under Section 65 to 81 of the Arbitration and Conciliation Act, 1996. It is therefore submitted that the impugned award 04.06.2016 was not an Award within the meaning of Part I of the Arbitration and Conciliation Act, 1996.
21. It is therefore submitted that the previous proceedings initiated ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 25 W.P.No.7633 of 2022 by the petitioner were futile as the petitioner was not required to knock the door of this Court under Section 34 of the Arbitration and Conciliation Act, 1996.
22. In this connection, the learned counsel for the petitioner relied on the following decisions:-
i. Whirlpool Corporation Vs. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1.
ii. M/s.Ramesh Conductors Pvt. Ltd. Vs. M & SME Council, 2016 (1) CTC 403.
iii. Union of India Vs. Chairman, U.P. MSEFC, 2021 SCC OnLine Mad 11071.
23. Opposing the present Writ Petition, the learned senior counsel for the second respondent submits that re-agitation under Article 226 of the Constitution of India is impermissible. It is submitted that not only the petitioner has approached this Court at the time of pre-deposit under Section 19 of the Mirco, Small and Medium Enterprises Development Act, 2006 but also after it was numbered, considered in O.P. stage and re- adjudicated by way of O.S.A. before Division Bench of this Court. That ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 25 W.P.No.7633 of 2022 apart, it is submitted that the petitioner had also filed W.P.No.29101 of 2017, wherein, W.M.P. was filed to stay the operation of the impugned order. Therefore, it is not open for the petitioner to re-adjudicate the issue once again. It is submitted that it is too late when the date the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
24. It is submitted that the petitioner cannot raise any contention once again in this Writ Petition as it has been already considered and deemed to have been considered in O.P.No.692 of 2020 and in O.S.A.No.55 of 2022 which was later withdrawn on 28.04.2022.
25. It is submitted that the decisions cited by the learned counsel for the petitioner in support of the present Writ Petition are distinguishable as there Writ Petition was directly filed, whereas, in the present case, the petitioner opted to pursue remedy under Section 34 of the Arbitration and Conciliation Act, 1996 and after having failed in its endeavour, has filed this Writ Petition. It is submitted that once the conciliation fails, the Award has to be passed and therefore, there is no ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 25 W.P.No.7633 of 2022 merit in this Writ Petition.
26. It is submitted that the petitioner has also filed W.M.P.No.31557 of 2019 in W.P.No.29101 of 2017 to amend the prayer in the said Writ Petition as “for issuance of Writ of Declaration declaring Section 16 to 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (Central Act 27 of 2006) as ultravires, unconstitutional, arbitrary and violates Article 14 of the Constitution of India and consequently set aside the award passed by the first respondent in Case No. M & SEFC / CBER / 11 /2016 dated 14.06.2016 as non-est in law, void and unenforceable in the court of law”. On this count also, this Writ Petition is liable to be dismissed.
27. In this connection, the learned counsel for the second respondent relied on the following decisions:-
i. K.K.Swaminathan Vs. Srinivasagam, 2003 (4) CTC 347.
ii. Orissa Power Transmission Corporation Limited and Others Vs. Asian School of Business Management Trust and Others, (2013) 8 SCC 738.
______________ https://www.mhc.tn.gov.in/judis Page No 20 of 25 W.P.No.7633 of 2022 iii. Benaulim Cable Tv Network Vs. Blits Global Technologies Pvt. Ltd., passed by the Hon'ble Supreme Court in S.L.A (C) No.3586 of 2019, dated 14.02.2020.
28. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Government Pleader for the first respondent and the learned counsel for the second respondent. I have perused the volumes filed by the petitioner and the documents filed by the respondents.
29. The petitioner has invoked the jurisdiction of this Court under Section 34 of the Arbitration and Conciliation Act, 1996 read with Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006, belatedly. O.P.Nos.692 & 1030 of 2019 were dismissed by this Court by its order dated 09.09.2021. O.S.A.No.55 of 2022 was thereafter filed before the Division Bench of this Court, but, was withdrawn in the light of the present Writ Petition filed on 21.03.2022. Thus, the issue on merits has remained untested before this Court in O.P.Nos.692 & 1030 of 2019.
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30. The petitioner appears to have also filed W.P.No.29101 of 2017, wherein, the petitioner has challenged the vires of Sections 16 to 19 of the Micro, Small and Medium Enterprises Development Act, 2006. In the said proceedings also, the petitioner has prayed for staying of all further proceedings pending disposal of the said Writ Petition in W.M.P.No.31364 of 2017. The said W.M.P.No.31364 of 2017 along with W.M.P.Nos.31363, 31635 & 31366 of 2017, was dismissed by this Court on 29.04.2019.
31. Thus, the petitioner has approached this Court by way of Writ Petition in W.P.No.29101 of 2017 and thereafter by way of O.P.Nos.692 & 1030 of 2019. After said O.P.Nos.692 & 1030 of 2019 were dismissed by this Court, the petitioner took a chance in O.S.A.No.55 of 2022 which was also dismissed as withdrawn on 28.04.2022. The fact also remains that the petitioner has challenged the vires of Sections 16 to 19 of the Micro, Small and Medium Enterprises Development Act, 2006 in W.P.No.29101 of 2017 which is now pending before the Hon'ble Supreme Court along with the batch of cases. ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 25 W.P.No.7633 of 2022
32. Considering the above, I am of the view that the petitioner cannot be given a third opportunity to assail the impugned order dated 04.06.2016 in Case No.M & SEFC / CBER / 11 / 2016 and the subsequent order dated 25.10.2016 in R.C.No.436/D3/2014 passed under Section 33 of the Arbitration and Conciliation Act, 1996. The rights of the petitioner, if any, can be confined only to the challenge to the vires of Sections 16 to 19 of the Micro, Small and Medium Enterprises Development Act, 2006 in W.P.No.29101 of 2017 which is now pending before the Hon'ble Supreme Court along with the batch of cases. If the petitioner succeeds in the said Writ Petition, the petitioner will be entitled for the relief in the present Writ Petition.
33. This Writ Petition is liable to be dismissed. The rights of the petitioner to recover the amount paid by the petitioner in the course of proceedings before this Court in the E.P. stage and in the O.P. stage, will be subject to the final outcome of the order to be passed by the Hon'ble Supreme Court in W.P.No.29101 of 2017. In case the petitioner succeeds in the said Writ Petition, the amount paid by the petitioner may have to be refunded back to the petitioner by the second respondent. ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 25 W.P.No.7633 of 2022
34. This Writ Petition stands dismissed with the above observations. No cost. Consequently, connected Miscellaneous Petitions are closed.
13.07.2022 Internet : Yes/No Index : Yes / No Jen To The General Manager, Micro and Small Enterprises Facilitation Council, Coimbatore Region, District Industries Centre / Zonal Office, No.2, Raja St., Coimbatore – 641 049.
______________ https://www.mhc.tn.gov.in/judis Page No 24 of 25 W.P.No.7633 of 2022 C.SARAVANAN, J.
Jen Pre-Delivery Order in W.P.No.7633 of 2022 and W.M.P.Nos.7642 & 7643 of 2022 13.07.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 25