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Himachal Pradesh High Court · body

2019 DIGILAW 1817 (HP)

Ashok Tanwar v. First Newsmedia Private Ltd.

2019-11-29

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. Through Arbitration Case No. 58 of 2019, cast under the provisions of Section 34 of the Arbitration and Conciliation Act, readwith Section 19 of the Micro Small and Medium Enterprises Development Act, 2006, the apposite aggrieved objectors/petitioners, cast an onslaught, vis-a-vis, the validity of the award made by the learned Arbitrator, upon, Reference No. 52/2017. 2. The operative portion of the impugned award, is, adverbatim, hence, reproduced hereinafter. Moreover, given the award becoming pronounced on 9.1.2019, and, the petition thereagainst becoming instituted herebefore, on 10.4.2019, does render the extant petition, to, become instituted herebefore rather within the apposite prescribed period, of, limitation. “ The claim of the petitioner is admitted and an award for a sum of Rs.16,01,522/- (principal) & interest on this amount u/s 16 of MSMED Act 2006 up to Rs. 17,74,462/-. Total Rs.3375984/- (Rs. Thirty three lakhs seventy five thousand, nine hundred and eight four only) due up to the date of filing the reference is passed against the buyers and in favour of the claimant to be paid within 30 days from the date of this award. The buyers shall also be liable to pay to the petitioner interest from the date of filing the present reference i.e 4.1.2018 up to the date of passing the award and future interest from the date of passing the award till the payment is made, as per interest rate fixed u/s 16 of the MSMED, 2006. The petitioner is further entitled to get reimbursed arbitrator’s fee of Rs. 40,000/- from the buyer. The petitioner in addition to that shall also be entitled to get the litigation expenses and other miscellaneous expenses such as counsels fee, postal & stationary charges clerical expenses, traveling expenses etc. to the extent of Rs.60,000/-, against the buyer. This will form part of the award. The petitioner shall be entitled to recover the amount from HPCC through its office bearers. No award is passed against the INC or its office bearers as they were not the party in the reference sent to this tribunal and this tribunal can’t travel beyond the reference. However there is no bar to recover the amount awarded in execution from its constituent i.e INC through its office bearers as per provisions of law. No award is passed against the INC or its office bearers as they were not the party in the reference sent to this tribunal and this tribunal can’t travel beyond the reference. However there is no bar to recover the amount awarded in execution from its constituent i.e INC through its office bearers as per provisions of law. The award is duly prepared, printed and signed in three originals and one original each will be sent to the applicant and respondents and the third original award on stamp papers alongwith the record received by the undersigned and the proceedings file be sent to the chairman, HP Micro and Small Enterprises Facilitation Council-cum-Director of Industries, HP Udyog Bhawan, Shimla, for record & to be produced if required before the Appellate/Executing Court. The reference is answered accordingly and award announced.” 3. However, the afore reared petition, become returned, to the learned counsel for the petitioner, for, after removal of objections, appertaining to non-deposit of Court fee, and, also appertaining, to, requisite Court fee of Rs.65/- remaining unaffixed, upon, the extant petition, his, rather ensuring qua it becoming aptly re-instituted, in, the Registry of this Court. 4. The requisite compliance, became meted, by the learned counsel for the petitioners, on, 20.6.2019, and, also thereat, a, demand draft, hence, ensuring compliance becoming meted, visa- vis, the mandate of section 19, of, Micro Small and Medium Enterprises Development Act, 2006 (for shot MSMED Act), provisions whereof stand extracted hereinafter, (i) hence casting, a, peremptory mandate against entertainment, of any lis, challenging an award, unless, the objector, not being the supplier, making in contemporaneity vis-a-vis its institution herebefore, rather deposit of 75%, of, the awarded amount. “Section 19 of Micro Small and Medium Enterprises Development Act: 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 alternate 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 the conditions as it deems necessary to impose.” 5. Further more, during, the pendency of the main petition before this Court, through, OMP No. 448 of 2019, instituted on 24.10.2019, the learned counsel, for the petitioners, seeks the relief, vis-a-vis, condonation of delay, in, the refiling, of, the extant petition, (i) hence challenging the impugned award, and, in making the afore endevour, he makes dependence, upon, clause (37) borne in Rule 3 in chapter II of the High Court of Himachal Pradesh (Original Side) rules, 1997, (ii) clause whereof stands extracted hereinafter, and, permits delay being condoned, in, the refiling, of, the apposite petitions, (iii) conspicuously after removal of, the objections raised thereons by the Registry, only upon, a period not exceeding four months in the aggregate, becoming completed, since, the, stage of raising of objections, and, its refiling after removal, of, objections raised thereon, hence, by the Registry of this Court: “ (37) applications for condonation of delay in removing the objections raised by the Registry upto a period of four months in the aggregate.” 6. Since, in concurrence therewith, from, 10.4.2019 hence upto, the removal of the apposite objections, as, raised by the Registry, and thereafter its refiling, hence less than four months elapsed, and, thereupon, the petition became validly refiled, after removal of objections, hence, the delay, if any, in the refiling of the petition is condonable, and, rather is condoned. 7. Since, in concurrence therewith, from, 10.4.2019 hence upto, the removal of the apposite objections, as, raised by the Registry, and thereafter its refiling, hence less than four months elapsed, and, thereupon, the petition became validly refiled, after removal of objections, hence, the delay, if any, in the refiling of the petition is condonable, and, rather is condoned. 7. Be that as it may, the acerbic controversy erupting, inter-se, the contesting litigants, rather appertains, to, the extant petition, becoming initially un-entertainable, (i) and, also it becoming initially mis-constituted, (ii) and, the afore vices, becoming sparked, from, the afore extracted mandate, borne in Section 19 of MSMED Act, (iii) wherein, a, peremptory statutory bar, is, encapsulated against any petition challenging, the award made by the Arbitrator, becoming entertained, by, any Court. The afore peremptory apposite statutory embargo, is contended to hereat, become hence infringed, and, the apposite transgression, of, the afore mandate, is, espoused, to, become aroused, from, the apposite peremptory statutory bar, as encapsulated therein, (iv) and, its casting interdictions against any petition, becoming filed, rather wherethrough, a challenge is made, vis-a-vis, the award made by the Arbitrator concerned, “unless the petitioner not being the supplier” as the objectors, is not, in, contemporaneity, vis-a-vis, the filing of the apposite petition, makes the peremptory enjoined deposit, of, 75% of the awarded amount, in, the Registry of this Court, rather remaining uncomplied with. 8. A reading of the substantive provisions, borne in Section 19 of MSMED Act, makes clear upsurgings, vis-a-vis, a statutory bar hence becoming created therethrough, against, entertainment, of, any motion, against, the award made, by the learned Arbitrator, “unless appellant (bot being the supplier)”, had made the afore alluded deposit (s), in, the Registry of this Court, conspicuously, in contemporaneity, vis-a-vis, a motion, as made, against the challenged award, hence before this Court. 9. 9. The bracketed coinage, borne in the requisite, mandate, embodied in Section 19 of the MSMED Act, in as much as, “not being a supplier” obviously clarifies besides qualifies, the, afore peremptory statutory necessity, in as much, as, it becoming cast, upon, the appellant, (i) and, also it makes further vivid and graphic clarificatory bespeakings, vis-a-vis, the preceding thereto, coinage (unless the appellant), in as much, as, upon, the appellant holding the status, hence, in the relevant contract, hence not, as, an apposite supplier, and, against whom, an award becomes pronounced, (ii) and, wheretowhich, the, status of a decree becomes statutorily assigned, his or it, becoming statutorily enjoined, to, in contemporaneity, vis-a-vis, the institution, of, a motion against, the, challenged award or decree, as, made by the learned Arbitrator before this Court, hence make, the, peremptory deposit, in, the proportionate statutory per centum. It appears, that, the afore statutory necessity, as, occurrs in Section 19, of, MSMED Act, are para meteria, vis-a-vis, the mandate borne in Order 41 Rule 5 CPC, and, wherein also the aggrieved, from a money decree, can make a valid motion, thereagainst hence before the appellate Court concerned, only when a part, of, the decretal amount, is insisted to be deposited, before, the learned appellate Court concerned. 10. Be that as it may, the, non-supplier/petitioner herein, whereuponwhom a peremptory statutory necessity become casts, in, the afore apposite statutory provision, in as much, as, it becoming enjoined, to, in contemporaneity, vis-a-vis, the institution of a motion against the award, as made, by the Arbitrator, hence make the peremptory statutory deposit, in, the Registry of this Court, rather has through, a, demand draft carrying therein a sum of Rs.26,07,000/-, made hence purported compliance therewith. 11. However, the afore compliance (s) are unmeritworthy, (a) as, the apposite peremptory statutory deposit, rather was enjoined to occur, in contemporaneity, vis-a-vis, the institution, of, a motion herebefore, against, the challanged award made, by the Arbitrator, than subsequent thereto, (b) also when hence, the mandatory apt statutory provisions, became meted thereat rather the absolutest compliance, thereupon only the appeal becoming entertain-able, on, the motion, of, the objector. 12. 12. Dehors the above, the, demand draft carries a sum of Rs.26,07,000/-, and, a reading of the operative portion, of, the award as extracted hereinabove, underscores, as displayed, in, paragraph 24 of the reply, to, OMP bearing No. 343 of 2019, vis-a-vis, the conforming thereto decretal amount rather becoming comprised, in, a sum of Rs.47,16,886/-, and, hence enjoining upon the objector/non-supplier, to, vis-a-vis, 75% thereof, and, borne in a sum of Rs.35,37,664/- rather in contemporaneity, vis-a-vis, the extant motion, being made, against the challenged award, rather making, its, deposit herebefore. 13. The table borne in paragraph 24 of OMP No. 343 of 2019, remains uncontested, by the learned counsel for the petitioner. The afore disclosure occurring therein also remains uncontested, by, the non-applicants, consequently, all the afores acquire vigor. However, the learned counsel appearing, for, the respondents submits, that, the afore mandate, of, Section 19 of MSMED Act, being amenable to dilute, vis-a-vis, its apt vigor, as the word or as occurs subsequent, to, the necessity of 75%, of, the awarded amount, in, contemporaneity, vis-a-vis, a motion being reared, by the objector, against the impugned award or decree, rather relieving the rigor, of, the preceding therewith statutory necessity, (i) and, when it stands couched, in, the apt alternative coinage, vis-avis, the initial statutory necessity, in as much as, it, becoming couched, in, the coinage “or as the case may be the other order in the manner directed by such Court” (ii) thereupon any short tender, as, made by the non-applicant, rather falling within domain (s) thereof. However, the afore submission, is, straightway rejected, as, the afore reading, is, rather grossly astray, from, rather an apt connotation ascribable qua it, and, it carrying, hence, the signification qua the mandatory deposit of 75%, of, the awarded amount, in, contemporaneity, vis-a-vis, the institution, of, a motion against the challanged award, as, made by the Arbitrator, becoming not insisted upon, only if, the Court, directs that solvent security or bank guarantee equivalent, to, the afore per centum, of, awarded amount, rather, becoming deposited, in, the Court. 14. 14. Furthermore, the afore made espousal, vis-a-vis, the afore coinage becoming purportedly alternative, to, the initial statutory necessity, as, encapsulated, in, Section 19 of MSMED Act, and, also hence for saving the rigor, of, the initial mandate, borne therein, would assume succor, (a) when, the objector in contemporaneity, vis-a-vis, institution of a motion, against, the impugned award, as, made by the Arbitrator, making deposit, of, a bank guarantee equivalent to the awarded amount qua where with, a, challenge is made, (b) or, its furnishing other solvent security, (c) or its filing an affidavit, in, contemporaneity, vis-a-vis, the institution, of, the extant petition/objections hence carrying echoings, in, consonance therewith. However, the afore endeavor remaining unrecoursed, at the afore initial stage, nor, leave qua therewith, hence, at the initial stage, becomes espoused, thereupon, OMP Nos. 448 and 343 of 2019 are allowed, and, the Arbitration case No. 58 of 2019, is, not entertainable, within the ambit of the prohibition made, in, Section 19 of MSMED Act, and, hence is dismissed. All pending applications also stand disposed of. No costs.