R. S. AVTAR SINGH v. VINDYACHAL AIR PRODUCTS PVT. LTD.
2009-02-17
ARUN MISHRA, S.SHRIVASTAVA
body2009
DigiLaw.ai
JUDGMENT ARUN MISHRA, J. The petition has been preferred by the petitioner aggrieved by order dated 31.01.2009 passed by the Court of District Judge, Sidhi in Civil MJC No. 1/2009. Petitioner - M/s. R.S. Avtar Singh and Co., a registered partnership firm, is aggrieved by award dated 23.10.2007 and award/order dated 26.02.2008 passed by Facilitation Council, Vindyachal Bhawan, Bhopal under Section 33 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act of 1996"). An application under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as "the Act of 2006") read with Section 151 of the Code of Civil Procedure, 1908 had been filed seeking exemption/waiver from depositing 75% of awarded amount. Notice had been issued to respondent No. 1 who had preferred objection thereto. During the pendency of the petition, respondent No. 1 approached the Collector, Singrauli seeking recovery of Rs. 9,99,693 along with interest thereon from the petitioner. Recovery certificate dated 06.11.2008 has been issued by the Collector and forwarded to the Dy. Collector, Saket, New Delhi to recover the said amount from the petitioner as the arrears of land revenue. The application under Section 19 of the Act of 2006 read with Section 151, Civil Procedure Code to stay the certificate of recovery and for waiver has been rejected vide order dated 31.01.2009. Hence, this petition. It is submitted by the petitioner that the rejection of the application for waiver is on wrong premises. Application under Section 34 of the Act of 1996 is pending before the trial court. In the circumstances, the waiver under Section 19 of the Act of 2006 ought to have been ordered. Writ petition has been filed challenging the vires of certain provisions which is pending consideration. Shri Vivek Rusia, learned counsel appearing on behalf of the petitioner, has submitted that there is provision under Section 19 of the Act of 2006 to waive the amount. In the facts and circumstances of the case, the court should not have insisted for deposit of 75% amount. Alternatively, he has submitted that in case the amount is ordered to be deposited, the respondent No. 1 may not be permitted to withdraw it. He has submitted that three times interest is required to be paid on the amount of Rs. 9,99,693 which is excessive.
Alternatively, he has submitted that in case the amount is ordered to be deposited, the respondent No. 1 may not be permitted to withdraw it. He has submitted that three times interest is required to be paid on the amount of Rs. 9,99,693 which is excessive. Thus, it would be proper to waive the condition of deposit of 75% amount in the facts of the case. Shri Shashank Shekhar, learned counsel appearing on behalf of the respondent No. 1, has submitted that there is no justification in the prayer to grant waiver as provided in Section 19 of the Act of 2006. He has further submitted that the proviso to Section 19 deals with question whether the deposited amount to be paid to the supplier or not pending disposal of the application to set aside the award or order. The Act of 2006 has been enacted with a view to extend support for the small enterprises so that they are able to grow into medium ones, adopt better and higher levels of technology and achieve higher productivity to remain competitive in a fast globalization era. The Act is intended to provide single legal framework to small and medium enterprise sector. Intention is also to make further improvements as to the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993. It has also intended to ensure timely and smooth flow of credit to small and medium enterprises as well as minimizing instances of sickness among them. Section 19 of the Act of 2006 reads thus : "19.
Intention is also to make further improvements as to the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993. It has also intended to ensure timely and smooth flow of credit to small and medium enterprises as well as minimizing instances of sickness among them. Section 19 of the Act of 2006 reads thus : "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 alternative 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." The aforesaid Section 19 provides that in case any appeal is preferred against any award or order made either by the Council or by any institution or centre providing alternative dispute resolution services to which a reference is made by the Council, it shall not be entertained by any court unless the appellant (not being a supplier) has deposited with it 75% of the amount in terms of the decree or award, as the case may be, in the manner directed by such court. Deposit of 75% in the manner directed by the court is mandatory requirement. Proviso to Section 19 empowers the court to pass appropriate orders with respect to disbursement of the amount to the supplier on condition, as it considers reasonable under the circumstances of the case to impose. The words used in Section 19 "in the manner directed by the court" cannot be interpreted so as to dilute the very requirement of deposit of 75% amount itself. The manner of depositing 75% of amount has to be as ordered by the court.
The words used in Section 19 "in the manner directed by the court" cannot be interpreted so as to dilute the very requirement of deposit of 75% amount itself. The manner of depositing 75% of amount has to be as ordered by the court. In the circumstances, 75% of the amount inclusive of interest is ordered to be deposited as that is precondition envisaged under Section 19 of the Act of 2006. Let it be deposited within four weeks by way of bank draft. Considering the proviso to Section 19 of the Act of 2006, 50% of the amount is ordered to be disbursed to the respondent No. 1, remaining amount of 25% shall be invested in the fix deposit to be disbursed in terms of the final decision to be rendered in the case. However, for withdrawal of 50% of the amount, respondent No. 1 shall furnish solvent surety to the satisfaction of the District Judge, Sidhi. Writ petition is allowed in part, the order is modified to the aforesaid extent. No costs.