1 1277.03-wp+ bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1277 OF 2003 M/s.Bedmutha Wire Company Ltd. ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents WITH WRIT PETITION NO.1181 OF 2003 M/s.Kreepa Steel Industries. ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents WITH WRIT PETITION NO.1290 OF 2003 Elame Plast Manufacturing Industry ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents Mr.K.D.Shah for petitioners. Mr.Shekhar Ingawale, AGP for respondent No.1. Ms.A.R.S.Baxi for respondent Nos.2 and 3. CORAM : D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATE : NOVEMBER 19, 2010 P.C. 1. The facts relevant for deciding these petitions are, that respondent No.2 Electricity Board invited tenders for supply of material. The petitioners submitted tender. The petitioners' tender was accepted. The goods were supplied. Admittedly, the payment of the price of the goods has been made. However, according to the petitioners, there was a delay in 2 1277.03-wp+ making payment, therefore, the Board should have paid interest on the delayed payment to the petitioners because it is a Small Scale Industries under the provisions of the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act,1993 (for short “the Interest Act”) and therefore, a direction is sought to the Board to pay interest according the provisions of that Act on the delayed payment of the price of the goods. The learned Counsel appearing for the respondent points out that, the Act itself makes a provision in Section 6 for filing of suit or other proceeding under any law for the time being in force for the recovery of the interest payable under that Act. He also refers to the provision of sub section 2 of Section 6 which provides for a reference under the Arbitration Act being made to the Industry Facilitation Council. He also points out that in the agreement under which supply was made, there is an arbitration clause. He also relies on a judgment of the Supreme Court in the case of M/s. Equipment Conductors and Cables Ltd. Vs. Haryana State Electricity Board and Anr. AIR 2002 SC Page 2421 to contend that in view of the disputed question of facts involved, no relief could be granted to the petitioners. The learned Counsel for the petitioners invited our attention to order dated dated 6th February, 1996 passed in Writ Petition No.215 of 1996 and submitted that similar order can be made in this petition also. The sole claim of the petitioners in these petitions is for a direction to the Board to pay interest under the Interest Act to the petitioners on the price of the goods because there was a delay in payment of the price of the goods. The entire claim of the petitioners is thus under the provisions of that Act. Section 6 of that Act reads as under: “6. Recovery of amount due: (1) The amount deu from a buyer, together with the amount of interest calculated in accordance with the provisions of Sections 4 and 5, shall be recoverable by the supplier from the buyer by way of a suit or other proceeding under any law for the time being in force. 3 1277.03-wp+ (2) Notwithstanding anything contained in sub section (1), any party to a dispute may make a reference to the Industry Facilitation Council for acting as an arbitrator or Conciliator in respect of the matters referred to in that sub section and the provisions of the Arbitration and Conciliation Act,1996 (26 of 1996) shall apply to such dispute as if the arbitration or conciliation were pursuant to an arbitration agreement referred to in sub section (1) of Section 7 of that Act.” 2. Perusal of the above quoted provision shows that sub Section 1 provides the remedy of suit for recovery of interest under the Act. Sub Section 2 provides for a reference to the Arbitration. There is no explanation to be found in the petition as to why these remedies provided by the Act have not adopted. Admittedly, there is an arbitration clause in the agreement. If the Board declines to make payment of interest under that Act, that arbitration could have been invoked. No explanation is to be found in the petition as to why that clause has not been invoked. What was the delay in payment of the price of the goods and whether that delay was attributed solely to the Board are all disputed question of facts. The Supreme Court has considered this position in the judgment in the case of M/s. Equipment Conductors and Cables Ltd. referred above and has observed thus in paragraph No.2. “2. We have heard counsel for the parties and we are in agreement with the view taken by the High Court that the remedy available to the appellant is to file a suit in the civil Court. Admittedly, the appellant is claiming interest under the Act and, therefore, remedy open to the appellant is to file a suit in the Civil Court or take such proceedings which may be permissible under law. “ 3. In our opinion, considering that there are disputed question of facts involved and there is a remedy provided by the Act itself to recover interest, it will not be appropriate for us to entertain this petition. So far as the orders on which reliance is placed by the petitioner is concerned, those 4 1277.03-wp+ orders have been passed by consent of parties and by that order a direction has not been made for payment of interest but the matter has been referred for arbitration. 4. We asked learned Counsel appearing for the Board that whether the Board is giving consent for appointment of an arbitrator in this petition. Learned Counsel stated that she has no instructions to give any consent for appointment of arbitrator. In this view of the matter, therefore, no relief can be granted to the petitioners. The petitions stand dismissed. No order as to costs. Rule stands discharged. However, this order will not come in the way of the petitioners adopting such remedy as may be advised for recovery of interest. (N.D.DESHPANDE,J.) (D.K.DESHMUKH,J.)