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2020 DIGILAW 83 (CAL)

Torero Corporation Pvt. Ltd. v. Ava Merchandising Solutions Private Limited

2020-01-21

ASHIS KUMAR CHAKRABORTY

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JUDGMENT 1. The Court : This application under Section 29-A of the Arbitration and conciliation Act, 1996 is at the instance of the claimant, which is a 'Micro Enterprise' within the meaning of Section 2(h) of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as 'the Act of 2006'). 2. The facts giving rise to this application are that the petitioner initiated proceeding, before the West Bengal State Micro Small Enterprises Facilitation Council, Kolkata(hereinafter referred to as 'the said Council'), against the respondent for realising all its alleged dues. Thereafter, the said Council entered upon reference in the arbitration proceeding. In terms of Section 18(2) of the Act of 2006 the said arbitral proceeding was covered by the provisions of the Act of 1996. On October 4, 2018 the said Council made and published the award holding the present respondent to be liable to pay Rs.2,01,04,931/-, together with interest upon award at the rate of three times of bank rate of the Reserve bank of India, compounded with monthly rests to the present petitioner under Section 16 of Chapter V of the Act of 2006. The respondent filed an application, AP No. 59 of 2019 before this Court under Section 34 of the Act of 1996 praying for setting aside of the award made by the said Council. The respondent did not make deposit of 75% of the said award as stipulated under Section 19 of the Act of 1996. 3. However, the respondent filed an application, AP No. 136 of 2019, under Section 14 of the Act of 1996 , alleging that the said Council had made and published the award long after their mandate stood terminated for not making the award within the time specified under Section 29A(1) of the Act of 1996 , that is, within twelve months from the date of entering upon reference. By a common judgment and order dated July 01, 2019 a learned Single Judge of this Court allowed the application of the present respondent under Section 14 of the Act of 1996 holding, inter alia, that the said Council made the said award, after its mandate stood terminated and rejected the application under Section 34 of the same Act as an misconceived one. The present petitioner did not challenge the said judgment and order dated July 1, 2019 in so far as the same allowed the application under Section 14 of the Act of 1996. Even the respondent did not challenge the said judgment and order dated July 1, 2019 in so far as the same rejected the application under Section 34 of the Act of 1996. As mentioned earlier, the petitioner has now approached this Court for extension of time to make and publish the award by the said Council. 4. It is submitted by the petitioner that the said order dated July 1, 2019 in so far as the same allowed the application filed by the respondent under Section 14 of the Act of 1996 after making the award by the said Council and during the pendency of the application under Section 34 of the Act of 1996 is patently erroneous. According to the petitioner, no application under Section 14 of the Act of 1996 is maintainable after an award is made by an Arbitral Tribunal. In any event, when the respondent could not make the mandatory deposit of 75% the awarded amount, the Court ought not to have passed order allowing the application under Section 14 of the Act of 1996 rendering the arbitral award made by the said Council being set aside. The petitioner has, however, prayed for an order for extension of time under Section 29A(4) of the Act of 1996 enabling the said Council to make and publish the award. 5. Per contra, a strong objection has been raised on behalf of the respondent to the maintainability of this application. It is submitted that although in the normal circumstances, the remedy of the petitioner would have lied in invoking the provisions of Section 15(2) of the Act of 1996 , but this case when by the said order dated July 1, 2019 the learned Single Judge of this Court rejected the said application under Section 34 of the Act of 1996 and did not set aside the award made by the said Council, the petitioner is not entitled to obtain any order for initiation of fresh arbitral proceeding. In this regard, the respondent referred to the provisions in Section 32 of the Act of 1996 and submitted that in the present case, the arbitral proceeding does not stand terminated. In this regard, the respondent referred to the provisions in Section 32 of the Act of 1996 and submitted that in the present case, the arbitral proceeding does not stand terminated. It was further agreed that if the petitioner put the award into execution the respondent would resist the execution proceeding under Section 47 of the Code of Civil Procedure. The respondent pressed for dismissal of the application. 6. I have considered the materials on record and arguments advanced for both parties. I find substance in the contention of the petitioner that once an Arbitral Tribunal makes and publishes an award even, after termination of its mandate the remedy of the aggrieved party lies in challenging the award under Section 34 of the Act of 1996 and no application under Section 14 is maintainable. In the present case, there is scope for any doubt that the respondents challenge to the award made by the said Council, in AP No. 59 of 2019 was governed by the provisions of Section 19 of Act 2006, mandatory requiring deposit of 75% of the awarded amount before this Court for entertaining the said application. However, in the instant case, in view of the provision of Section 19 of the Act of 2006 and the decision of the Supreme Court in the case of Goodyear India Ltd. -Vs- Norton Intech Rubbers (P) Ltd. reported in (2012) 6 SCC 345 when the respondent did not deposit 75% of the amount and awarded by the said council, its application under Section 34 of the Act of 1996 to challenge the award was not maintainable. Nonetheless, this Court being a Co-ordinate Bench cannot enter into the merits of the said order dated July 1, 2019. 7. In the present case, in view of the order dated July 1, 2019 holding that the mandate of the said Council stood terminated before the making the award, there is no finality with regard to the adjudication of the disputes between the parties. Although the petitioners prayer in this application under Section 29A of the Act cannot be allowed, but the petitioner cannot be left in a situation where its claim against the respondent is not decided on merit. Therefore, I do not find any merit in any of the contentions of the respondent. Although the petitioners prayer in this application under Section 29A of the Act cannot be allowed, but the petitioner cannot be left in a situation where its claim against the respondent is not decided on merit. Therefore, I do not find any merit in any of the contentions of the respondent. The remedy of the petitioner in this case lies in taking recourse to Section 15(2) of the Act of 1996 seeking for fresh arbitration. Thus, the petitioner shall be entitled to approach the said Council for adjudication of its claims against the respondent, once again on merit. With the above findings, the application, A.P. No. 531 of 2019 stands disposed of.