Bangalore District Court
Smt. Sulochana Ramesh vs M/S Gayathri Structural & Roofing on 7 August, 2021
1
Com.A.S.261/2018
IN THE COURT OF LXXXVII ADDL.CITY CIVIL & SESSIONS
JUDGE, (EXCLUSIVE DEDICATED COMMERCIAL COURT)
AT BENGALURU (CCH.88)
THIS THE 7th DAY OF AUGUST 2021
PRESENT:
SRI.CHANDRASHEKHAR U., B.Sc., LL.M.,
LXXXVII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.A.S.No.261/2018
Petitioner: Smt. Sulochana Ramesh,
Aged about 50 years,
Bliss Blossom Apartment,
Jogupalya Main Road,
Doddaiah Layout,
Jogupalya,
Bengaluru 560 008.
(Rep. by Sri.AKS - Adv)
AND
Respondent : M/s Gayathri Structural & Roofing
Pvt. Ltd.,
Above Adishwar, 1st Main,
Mathikere Main Road,
Yeshwanthpura
Bengaluru 560 022.
(Rep. by Sri. KD/AD- Advs)
2
Com.A.S.261/2018
Date of Institution of the 19.12.2018
suit
Nature of the suit (suit on
pronote, suit for
declaration & Possession, Arbitration Suit
Suit for injunction etc.)
Date of commencement of -
recording of evidence
Date on which judgment
was pronounced 07.08.2021
Total Duration Year/s Month/s Day/s
02 07 19
(CHANDRASHEKHAR U),
LXXXVII Addl.City Civil & Sessions Judge,
(Exclusive dedicated Commercial Court)
Bengaluru.
JUDGMENT
The petitioner has filed the above petition under Section 34 of the Arbitration & Conciliation Act, 1996, for setting aside the Arbitration Award, dated 4.10.2018, passed by the Micro & Small Enterprises Facilitation Council.
2. It is the case of the petitioner that respondent being a company incorporated under the Companies Act, 1956 filed an application under Section 18 of Micro Small and Medium Enterprises Development Act, 2006, before the M&SE Facilitation Council, Bengaluru constituted under Section 21 of 3 Com.A.S.261/2018 the said Act. The petitioner herein filed objection to the claim as per Annexure 'B' and the said council passed an Award, dated 4th October 2018 by allowing the claim of the respondent herein. The petitioner has stated that the Facilitation Council had no authority to decide the case and Section 18 (1 ) (2) provides for conciliation and seek assistance of any institution or centre by providing alternate dispute resolution services by referring such an institution or centre for conducting conciliation and the provisions of Section 65 to 81 of the Arbitration and Conciliation Act, 1996 shall apply to the said dispute. Since, the settlement was not arrived at, but there shall have been reference to the Arbitration and Conciliation Act. As per the provisions of the MSMED Act, the facilitation council shall consist of not less than three members, but, not more than five members to be appointed from among the Director of Industries and other persons mentioned under Section 21 of the Act. Further, the facilitation council has not framed issues or recorded evidence and no arguments were conducted and no opportunities were given to address arguments. The observation of the facilitation council that the petitioner herein has failed to file the written statement is incorrect. The Award passed and the proceeding conducted is 4 Com.A.S.261/2018 against the principles of natural justice and public policy as it is against Section 18 and 21 of the Act. The facilitation council has not taken into account the written statement filed by the petitioner herein and failed to raise issues to decide the case. No opportunities were given for cross-examination of the witness on the basis of the documents. The impugned Award passed by the Facilitation Council has been challenged on the ground that it is against the public policy and no opportunity was given to the respondent to adduce evidence and the observation that written statement was not filed is incorrect. Though, the petitioner herein had filed written statement, the Award reveals that no written statement was filed, accordingly, the council proceeded to pass the award. Therefore, the said Award is against the public policy of India. Accordingly, she has prayed for allowing the application.
3. The respondent has filed objection stating that the application is not maintainable and liable to be dismissed in limine. It has further stated that it is a small company registered under the department of Industries and Commerce, bearing Entrepreneurs Memorandum Part No- II 290201200294 and engaged in the activity of fabrication. The respondent had 5 Com.A.S.261/2018 filed an application under Section 17 of the MSMED Act, 2006, for the recovery of Rs.41,35,347/- towards the principal amount and interest of Rs.5,51,446/- from the petitioner and after giving sufficient opportunity, the Award came to be passed for Rs.26,62,564/-. The respondent has denied other allegations made by the petitioner in the petition that no opportunity was given to adduce evidence and no opportunity was given to hear arguments, etc. According to it, the petition itself is misleading and it is against the provisions of MSMED Act, 2006. The order sheet of the proceedings goes to show that the petitioner was not diligent in conducting the case, on many occasions, she did not make her appearance before the Arbitrators, which made the Arbitrators to pass the Award within the stipulated time. Since, the time is stipulated for disposal of the case by the Arbitral Tribunal, there is no nothing to show that it has exceeded its jurisdiction nor failed to follow the procedure contemplated. Further, as per Section 19 of the MSMED Act, the petition itself is not maintainable unless 75% of the amount is deposited in the manner directed by such Court. The Facilitation Council, after giving enough opportunity, has passed the Award on the basis of the documents produced by the parties and it has followed its own procedure and as 6 Com.A.S.261/2018 permissible under the law. Accordingly, she has prayed for dismissal of the petition.
4. Heard, learned counsel for the plaintiff and defendant.
5. Now, the points that arise for my consideration are:-
1. Whether the plaintiff/petitioner has made out that the Award is against public policy of India and as such, it is liable to be set aside?
2. What Order?
6. My findings on the above Points are as under:
Point No.1 :- In the Negative.
Point No.2 :- As per the final Order for the following reasons.
REASONS
7. Point No.1 :- Learned counsel for the plaintiff/petitioner would argue that the Arbitral Tribunal i.e., Micro & Small Enterprises Facilitation Council, Bengaluru (M.S.E.F.C) has not considered the evidence or provided any opportunity for the plaintiff to prove her case as contended in the written objection filed before it. Though, the claimant had claimed Rs.46,86,783/- as per the claim petition after filing of 7 Com.A.S.261/2018 the written objection and contending that the claimant was not entitled for so much of amount, the claimant filed evidence as well as invoices and statement regarding the purchase and on the basis of which, Award came to be passed for Rs.26,62,564/- with interest at three times of the rate of interest, which bank would impose from the due date. So, according to learned counsel for the plaintiff, the Arbitral Award is without considering the materials on record and without offering proper opportunities to the plaintiff herein to prove her case and therefore, it is against the public policy of India. The main grievance of learned counsel for the plaintiff was only that M.S.E.F.C had not recorded evidence, framed issues and assigned reasons, on the basis of the issues and therefore, it is against the procedure contemplated under the provisions of Arbitration and Conciliation Act, 1996 and also Rules thereunder. In support of her contention, she has cited the decision in the case of Ramesh K. Patel Vs Prashant J. Patel reported in 2012 SCC OnLine Bombay 979. The said Judgment came to be passed in A.P No.649 of 2009, whereunder, it is specifically stated that when the Arbitral Tribunal failed to offer proper opportunity, then, such Award cannot be sustained. Accordingly, they were came to be set 8 Com.A.S.261/2018 aside. With the help of the above decision, she would argue that similarly, in the present case, the M.S.E.F.C has not given proper opportunity and went on pronouncing the Award with a pre-conceived notion that it should conclude the proceedings within the 90 days. In the said regard, she took the Court to very Award produced before the Court, which speaks that, they are bound to dispose of the matter within 90 days. Accordingly, after rejecting the contention of the plaintiff herein, they proceeded to pronounce the Award. This is the main attack of learned counsel for the plaintiff. To support her contention, she has cited another decision in the case of J.B Ross & Co., Vs. C.R. Scriven & Others, which has come in Indian Law Reports, XLIII dated 19th April 1916, which speaks about the right of the party to defend the case and what should be done, etc. However, the above decision is not applicable to the present facts and circumstances of the case, as the parties are governed by the provisions of Arbitration and Conciliation Act, 1996 and Rules framed thereunder. She has cited one more decision i.e., in the case of ONGC Ltd., Vs. Western Geco International Ltd., reported in (2014) 9 SCC 263, which speaks about fundamental policy of Indian Law and what it means and what should be considered and in the said 9 Com.A.S.261/2018 Judgment, it is held at para No.34 and 35 that:
"34. an Award could be set aside on the ground of violating the "public policy of India", if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c ) justice or morality, or (d) in addition, if it is patently illegal. However, what would constitute the "fundamental policy of Indian law" was not elaborated upon. Even so, the expression must include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression "fundamental policy of Indian law", three distinct and fundamental juristic principles must necessarily be understood as a part and parcel of the every determination whether by a Court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a "judicial approach" in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the court or the authority does not have to be separately or additionally enjoined upon the for a concerned. What must be remembered is that the importance of judici8al approach in judicial and quasi- judicial determination lies in the fact that so long as the Court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, tribunal or authority vulnerable to challenge" and it is held that:
"Thirdly, no less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so 10 Com.A.S.261/2018 irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of the Wednesbury principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but no less in statutory processes wherever the same are available".
8. And similarly, she has cited the decision in the case of Associate Builders Vs. Delhi Development Authority, reported in (2015) 3 SCC 49, which has also come in the light of public policy of India and what should be the scope of procedure and what should it contain, when an Arbitral Award can be set aside, etc. She emphasises about the patent illegality in conducting the case and failure to provide proper opportunity, which is also one of the grounds to set aside the Arbitral Award. Further, the contravention of the Arbitration Act itself would be regarding as patent illegality and in case if the arbitrator gives no reason for Award in contravention of Section 31 (3) of the Act, such Award will be liable to be set aside. So, with the help of these two decisions, she would argue that learned Arbitral Tribunal has not given proper opportunity to contest the case nor framed issues and recorded evidence of the witnesses, so, as to arrive at a fair conclusion. Since, there is no proper reason assigned for 11 Com.A.S.261/2018 passing of Award, then, it amounts to patent illegality, which is one of the grounds to set aside Arbitral Award. Now, we have to see, whether the MSEFC has followed the procedure and if so, whether that Facilitation Council has to follow the procedure as contemplated under Arbitration Act and CPC, whether recording of evidence is necessary, etc., will have to be seen on the basis of the material placed before the Court. The applicability of the above decision will be considered after referring to the contention of the defendant herein, who was claimant before the Arbitral Tribunal.
9. Per contra, learned counsel for the defendant would argue that the application itself is not maintainable as the documents speak about the procedure followed by the Arbitral Tribunal and enough opportunities were given to the plaintiff herein to file objection and to prove the contention raised by her in the written statement. In the said regard, he took the Court to the written statement filed by the plaintiff herein, wherein, she has admitted about purchase of the order and payment of Rs.73,30,000/- by way of cash and cheque. In para No.2, it is admitted that against the total amount of Rs.93,82,646/-, she has made payment of Rs.73,30,000/- and 12 Com.A.S.261/2018 as far as the claim made under the 5th Running Bill, she has objected for it on the ground of weightage and same thing was not addressed by the claimant. Instead of clearing the objection raised by the plaintiff herein, according to claimant, claimant urged the Facilitation Council by way of this case. According to learned counsel for the defendant, the Award is not against the procedure. When it is admitted that she has paid Rs.73,30,000/-, then the balance would be Rs.26,62,564/-, which is one Awarded by the Arbitral Tribunal. Ofcourse, she has disputed about claim for Rs.41,35,347/- and later as per the direction, the claimant filed account statement and invoices and restricted the claim to Rs.26,62,564/-. But, the plaintiff herein has not produced any documents before the authority to show that she has disputed about the weight of the materials supplied. If, at all, the plaintiff was aggrieved by the quality or weight of the materials supplied by the claimant, she should have at least answered the mail issued by the claimant to the defendant, or the plaintiff should have issued mail, or any correspondence bringing to the notice of the claimant about dispute regarding weightage. The document produced by the plaintiff i.e., certified copy of the order sheet, the document submitted by the claimant, the bills submitted 13 Com.A.S.261/2018 by the claimant goes to show that the material has been supplied, but, the claimant has claimed excess amount and after submitting proper statement, the amount due was ordered to be paid. Therefore, in the absence of production of any documents, regarding the grievance of the plaintiff herein about quality or weight, then, her contention in the present suit cannot be sustained. According to learned counsel for the defendant, this Court not being an Appellate Court cannot re- appreciate the evidence filed before the Arbitral Tribunal.
10. Now, coming to the contention of the plaintiff that issues were not framed and evidence was not adduced, etc. Learned counsel for the defendant would submit that the Arbitral Tribunal can follow its own procedure and there is no hard and fast rule that it should follow the procedure as per Civil Court. Under Section 17 of the MSME Act 2016, if any amount is due, then, such amount can be recovered by making an application before the M.S.E.F.C as per Section 17 of the Act and the Facilitation Council after receipt of the petition by the defendant herein started the proceedings as per the hearing held on 18.7.2017. Accordingly, the notice was issued to the plaintiff herein and case was posted on 16.8.2017. The 14 Com.A.S.261/2018 plaintiff herein was represented by the counsel and sought time on 16.8.2017 and accordingly, the case was posted on 20.9.2017 for filing objection. On 20.9.2017, the respondent did not appear and respondent has not filed written statement and accordingly, the written statement was taken as not filed and conciliation was also failed. Thereafter, the Facilitation Council issued Arbitration notice to the parties to appear on 25.10.2017 and on the said day, the petitioner was present and there was no representation by the respondent. Accordingly, the case was adjourned and in the meantime, the respondent filed written statement, for which the rejoinder was also filed. Thereafter, the case was posted on 28.12.2017 and the meeting was held on 30.12.2017 and on that date, petitioner was present and respondent was absent and final notice was issued for appearance of respondent on 28.12.2017, 28.12.2017, the learned counsel for petitioner was present and learned counsel for the respondent appeared and sought for time, accordingly, the time was granted finally on 25.1.2018 to produce any documents. However, on 25.1.2018 there was no sitting, accordingly, on 6.2.2018 the case was taken and son of the respondent was present along with Advocate and sought time stating that matter will be 15 Com.A.S.261/2018 settled. So, again the case was called on 2.3.2018 and on 2.3.2018, the petitioner was present and counsel for the petitioner was also present along with respondent and the petitioner agreed to provide to the respondent tax invoice copy and the respondent agrees to reconcile the statement of the petitioner with Architect and make payment, which is due according to them. Therefore, the case was posted on 4.4.2018 to file the report by the Architect and the respondent. On 4.4.2018, the respondent was present, petitioner was also present and both the parties were directed to file their detailed statement of accounts along with supplly documents. On 4.5.2018, there was no sitting and next sitting was held on 24.5.2018 and on that day, Shivashankar, MD for petitioner was present and counsel for respondent was absent and Sri. Kolyan Basavaraj and another advocate was appeared for the respondent and sought time for filing statement and bills submitted by the petitioner. Accordingly, the case was called on 20.6.2018. On 20.6.2018, Advocate for the respondent was present and son of the respondent was also present, but, they sought time to file objection and statement of account, etc. However, since they have taken sufficient time to file statement of account and bills, their request was 16 Com.A.S.261/2018 rejected and case was heard. The case was posted for orders and on 19.9.2018, on account of reconstitution of the council, again notice was issued to the parties and petitioner was present, advocate for the respondent was also present and the council heard the parties and prayer on behalf of the respondent was rejected and posted the case for orders. So, right from the day one, till day, it appears that the council has given sufficient time to file reconciled statement and no objection was raised by the plaintiff herein as in para No.2 of the written statement. So, when sufficient opportunity was given, failure on the part of the plaintiff to furnish her statement of account and payment etc., then, according to learned counsel for the defendant, the contention cannot be accepted. The plaintiff made her best effort to avoid payment by one or the other ground and though sufficient opportunity was given, she failed to establish her contention that she is not due to any amount. On the other hand, the claimant, by furnishing reconciled statement and invoices, it is found that the plaintiff was due to a sum of Rs.26 lakhs and odd. Accordingly, Award came to be passed. With this background, Learned counsel for the defendant would further argue that when the Facilitation Council has given sufficient opportunity, 17 Com.A.S.261/2018 the question of framing of issues or recording evidence is not material for the reason that, the Arbitral Tribunal can follow its own procedure, only thing is that a fair hearing should be given. In the said regard, he has cited the decision in the case of Fiza Developers & Inter-Trade P. Ltd, Vs AMCI Pvt Ltd., reported in (2009) 17 SCC 796, which speaks about when framing of issues is necessary etc. However, the said Judgment has come under Section 34 of the Act and it does not speak about necessity of framing of issues by the Arbitrator. Now, whether Arbitral Tribunal has to frame issues, has to be seen. When the written statement of the plaintiff shows that she has purchased materials worth Rs.93 lakhs and odd and paid Rs.73 lakhs as per her statement and balance amount would tally with the reconciled statement furnished by the claimant, then, where is the question of framing issues. If really, the plaintiff was sure about payment of entire amount she would have come with necessary documents before the Arbitral Tribunal. She has not made use of the opportunities given as could be seen from the order sheet of the Arbitral Tribunal. She cannot expect the Arbitral Tribunal to function as Civil Court as it is only a Facilitation Council, which facilitate the conciliation or to pass an Award. Therefore, the contention 18 Com.A.S.261/2018 of the plaintiff that issues were not framed, evidence was not recorded, cannot be considered. The respondent herself failed to utilize the opportunities given and now she cannot harp upon the contention that no opportunities were given by the Arbitral Tribunal. The second decision submitted by learned counsel for the defendant in the case of Union of India Vs. M/s Pam Development Pvt. Ltd., dated 18th February 2014, in Civil Appeal No. 5618 of 2006, wherein, that the Apex Court has held by referring to Section 16 of the Arbitration Act, 1996 that:
"Section 16 of the Arbitration Act, 1996, provides that the Arbitral Tribunal may rule on its own jurisdiction. Section 16 clearly recognizes the principle of kompetenz-kompetenz. Section 16(2) mandates that a plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Section 4 provides that a party who knows that any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non compliance without undue delay shall be deemed to have waived his right to so object".
11. So, one thing is clear from the above decision that the Arbitral Tribunal can follow its own procedure and Section 16 clearly recognizes the principle of kompetenz-kompetenz. He has cited another decision in the case of Rhiti Sports Management Pvt. Ltd., Vs. Power Play Sports & Events 19 Com.A.S.261/2018 Ltd., reported in 2018 SCC OnLine Delhi 8678, para No.10, it is held that:
"10. Arbitration has also been described as private justice'. It is an alternate dispute resolution mechanism that is founded on the fundamental principles of party autonomy and minimal judicial intervention. Thus, unless specifically provided, no judicial intervention would be permissible in arbitral proceedings. One of the stated primary objects of the Act is to minimize the supervisory role of courts in the arbitral process. The above principle finds statutory expression in Section 5 of the Act, which expressly provides that Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Par, no judicial authority shall intervene except where so provided in this Part".
12. So, the intervention by the judicial authority should be minimum, when there is something to show that the Arbitration Tribunal has followed the procedure, given maximum opportunities to the parties. The another decision in the case of State of U.P Vs. Ramnath International Construction (P) Ltd., reported in (1996) 1 SCC 18,, wherein, at para No. 7 it is held that:
"The jurisdiction of the court to interfere with an award of an arbitrator is undoubtedly a limited one. The adjudication of the arbitrator is generally binding between the parties and it is not open to the court to attempt to probe the mental process by which the 20 Com.A.S.261/2018 arbitrator has reached his conclusion. Award of an arbitrator can be set aside by a court only on the grounds indicated in Section 30 of the Arbitration Act. It is not open to the court to reassess the evidence to find whether the arbitrator has committed any error or to decide the question of adequacy of evidence and the court cannot sit on the conclusion of the arbitrator by re-examining and reappreciating the evidence considered by the arbitrator. At the same time the arbitrator is a creature of the agreement itself and therefore is duty bound to enforce the terms of the agreement and cannot adjudicate a matter beyond the agreement itself. If the arbitrator adjudicates a claim of a contractor with reference to the clauses of the agreement itself whereby the agreement gets engrafted into the award, it will be open to the court to examine those clauses of the agreement and find out the correctness of the conclusion of the arbitrator with reference to those clauses. Bearing in mind the aforesaid parameters for exercise of jurisdiction by the court in examining the legality of an award of an arbitrator, the award in hand as well as the order of the subordinate Judge and that of the High Court requires scrutiny".
13. The last decision, is in the case of Hydel Construction Ltd., Vs. H.P. State Electricity Board, reported in 1999 SCC OnLine HP 16: AIR 2000 HP 19, (1999) 3 Arb LR 28, wherein, their lordships have culled out the legal proposition regarding Arbitration and power of the Court to interfere and extent of interference, etc. "26. The legal propositions stated by the various judgments are as under:
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Com.A.S.261/2018
1. The Arbitrator is the final Judge of all questions both of law and fact;
2. The Arbitrator is the sole Judge of the quality and quantity of evidence;
3. It is not open to the3 Court to re-examine and re-
appreciate the evidence considered by the Arbitrator to hold that the conclusion reached by the Arbitrator is wrong;
4. The Court cannot sit in appeal over the view of the Arbitrator by re-examining and re-apprising the materials;
5. Where two views are possible, the Court is not justified in interfering with the award by adopting its own interpretation;
6. An arbitrator is not required to give a detailed judgment while rendering even a reasoned award;
7. The Arbitrator is a creature of the agreement itself and, therefore, is duty bound to enforce the terms of the agreement and cannot adjudicate a matter beyond the agreement. Court can find out the correctness of the conclusions of the Arbitrator with reference to those clauses.
8. Award, on the face of it, based on erroneous proposition 22 Com.A.S.261/2018 of law and no evidence, can be interfered with".
14. So, when we go through the all the decisions, one thing is clear that the Power of Court is limited and unless and until it is shown that the very Award is against the public policy or that it is patently illegal, the Court cannot interfere. As I have already stated when we go through the order sheet, and the written statement filed by the plaintiff herein, one thing is clear that she has admitted the transaction, admitted the payment and according to her statement itself she was due in a sum of Rs. 26 lakhs, which has been confirmed by reconciled statement submitted by the claimant and accordingly, an Award came to be passed. In a dispute of this nature, recording evidence is not necessary like civil court as scope is limited. Just because opportunity was not given to give evidence or produce document, it does not mean that the Arbitral Tribunal has not followed the procedure contemplated under the Arbitration and Conciliation Act, 1996 or MSMED Act. On the other hand, as per provision of MSMED Act, if, conciliation is failed before the Facilitation Council, Council itself conduct Arbitration by issuing Arbitration notice or refer the matter to any Arbitral Centre, Here, the Facilitation 23 Com.A.S.261/2018 Council after seeing the records, proceeded to issue arbitration notice and therefore, the jurisdiction of the Arbitral Tribunal cannot be attacked. Further, as per provision of the of the MSMED 2006, in order to challenge the Award, the plaintiff must deposit 75% of the amount, otherwise, no Appeal can be entertained. Though, there was no objection at the initial stage, the maintainability of the suit for non-deposit of 75% of the amount can be considered at any stage and it does not mean that the defendant has acquiesced such aspect. As per the provisions of the MSMED Act, in order to raise a dispute, it requires only two mandatory documents i.e., Aadhar or Registration certificate under MSMED Act and invoice issued by the supplier to be uploaded in the Portal to initiate the proceedings and same is sufficient. In view of the above fact, Chapter V of Arbitration and Conciliation Act 1996 provides that the Arbitral Tribunal has followed the procedure under MSMED Act, which governed the same, which takes precedence over the Arbitration and Conciliation Act 1996. So, when we peruse the entire materials placed before the Court, one thing is clear that the claimant as per the MSMED Act, filed the documents required to be filed in the Portal and notice was issued, they were directed to file the objection and 24 Com.A.S.261/2018 also the reconciled statement to arrive at the correct amount. This aspect has not been met by the plaintiff inspite of granting sufficient time as could be seen from the order sheet.
15. Another contention of the plaintiff that though, the objection statement was filed, the Award speaks that no objection statement was filed, etc., goes to show that the Arbitral Tribunal has hurriedly passed the Award, etc., keeping in mind, the time limit, etc., cannot be considered. Because, when we go through the Award and order sheet, it is clear that the Arbitral Tribunal has noted the filing of objection statement and the objection statement was not filed to the rejoinder submitted by the claimant before the Arbitral Tribunal. Therefore, whatever the contention raised by the plaintiff by way of grounds for setting aside the Arbitral Award is not sufficient and it appears that the plaintiff wants to avoid making payment having received the materials from the respondent. We cannot equate the Micro & Small Enterprises Facilitation Council as that of Civil Court to follow each and every aspect and recording evidence, subjecting the witness for cross-examination, etc., which is not within the purview of MSMED Act. Therefore, I am of the view that the plaintiff has 25 Com.A.S.261/2018 utterly failed to show that the Award passed by the Arbitral Tribunal is against the public policy and it is patently illegal. In view of the above the facts, the decisions cited by learned counsel for the plaintiff is of no help to her to prove the case. Accordingly, I answer point No.1 in the Negative.
16. Point No.2 :- For the aforesaid reasons, I proceed to pass the following Order.
ORDER The application filed by the plaintiff U/S. 34 of Arbitration & Conciliation Act, 1996 is hereby dismissed.
(Dictated to the Stenographer, typed by him, corrected and then pronounced by me in open Court on this the 7th day of August, 2021).
(CHANDRASHEKHAR U), LXXXVII Addl.City Civil & Sessions Judge, (Exclusive dedicated commercial court) Bengaluru.
26 Com.A.S.261/2018