Haathee Ventures vs Bankim Patel Desigh Consultants on 19 June, 2019

[Cites 6, Cited by 1]

Gujarat High Court

Haathee Ventures vs Bankim Patel Desigh Consultants on 19 June, 2019

Bench: R.M.Chhaya, B.N. Karia

         C/SCA/2453/2019                                       ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 2453 of 2019
=========================================
                    HAATHEE VENTURES
                          Versus
           BANKIM PATEL DESIGH CONSULTANTS
=============================================
Appearance:
MR TEJAS S TRIVEDI(5692) for the Petitioner(s) No. 1
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 1
=============================================
 CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR.JUSTICE B.N. KARIA
                      Date : 19/06/2019
                        ORAL ORDER

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) Heard Mr. Harshit Tolia, learned advocate for Mr. Tejas Trivedi, learned advocate for the petitioner and Mr. B.S. Patel, learned advocate for Mr. Chirag B Patel, learned advocate for the respondent.

2.0. By way of this petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 19.11.2018 passed by the learned Commercial Court, Vadodara in Civil Miscellaneous Application No.47 of 2018 whereby while staying operation and execution of the arbitral award dated 26.2.2018 was kept in abeyance on condition of depositing 50% of the awarded amount.

3.0. This Court vide order dated 06.02.2019 passed the following order:

"1. Mr. Harshit Tolia, learned advocate with Mr. Page 1 of 3 Downloaded on : Sat Aug 10 01:17:35 IST 2019 C/SCA/2453/2019 ORDER Tejas Trivedi, learned advocate for the petitioner has invited the attention of the court to the fact that the respondent (original claimant) has filed a memorandum as contemplated under section 8 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as "the MSME Act") on 13.9.2013. It was submitted that the dispute involved in the present case ended on August, 2012 and therefore, at the time when the dispute arose, the respondent was not registered under the MSME Act. It was submitted that despite the aforesaid position, the respondent invoked the provisions of section 18 of the MSME Act and filed an application before the Micro Small Enterprises Facilitation Council. It was submitted that clause (n) of section 2 of the MSME Act defines "supplier" to mean a micro or small enterprise, which has filed a memorandum with the authority referred to in subsection (1) of section 8. It was submitted that in view of the fact that the memorandum was filed by the respondent only on 13.9.2013, the respondent was not a supplier within the meaning of the said section on the date when the dispute arose. It was submitted that before the Council, a specific contention had been raised in the defence statement that the Council had no jurisdiction to entertain the dispute, despite which the Council has proceeded to pass the award dated 26.2.2018 without dealing with the contention raised by the petitioner.

2.It was submitted that when the proceedings before the Council were totally without jurisdiction, the Commercial Court was not justified in directing the petitioner to deposit 50% of the awarded amount along with interest.

3.In view of the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 27th February, 2019. By way of adinterim relief, the operation of the condition of depositing 50% of the awarded amount along with interest as stipulated under order dated 19.11.2018 passed below Exhibit6 in Civil Miscellaneous Application No.47 of 2018 is hereby stayed. Direct Service is permitted."

4.0. What is challenged in the present petition is adinterim order passed by the learned Commercial Court in Civil Miscellaneous Application No. 47 of 2018 and proceedings of Civil Miscellaneous Application No. 47 of 2018 is pending at large before the Page 2 of 3 Downloaded on : Sat Aug 10 01:17:35 IST 2019 C/SCA/2453/2019 ORDER Commercial Court under Section 36 of the Arbitration and Conciliation Act, 1996, without expressing any opinion on merits, we deem it fit to continue the order dated 06.02.2019 fill final disposal of the Civil Miscellaneous Application No. 47 of 2018. However, it is clarified that the same shall be without prejudice to the rights of either parties and the learned Commercial Court while deciding the Civil Miscellaneous Application No. 47 of 2018 shall not be influenced by any of the observations made in the order dated 06.02.2019 as well as this order. Even at the cost of repetition, both the parties are liberty to take all available contentions before the learned Commercial Court and the learned Commercial Court shall decide the same independently as expeditiously as possible and latest by 30.10.2019. The present order is passed with the consent of the learned advocates for the respective parties, therefore, no further reasons are necessary while passing the present order. With this, present application is disposed of.

sd/ (R.M.CHHAYA, J) sd/ (B.N. KARIA, J) KAUSHIK J. RATHOD Page 3 of 3 Downloaded on : Sat Aug 10 01:17:35 IST 2019

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