Calcutta High Court Bharat Heavy Electricals ... vs Optimal Power Synergy India Pvt. Ltd on 23 March, 2022 Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present : THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA. I.A. No. GA 3 of 2021 in A.P. 175 of 2020 BHARAT HEAVY ELECTRICALS LIMITEDELECTRIC DIVISION Vs OPTIMAL POWER SYNERGY INDIA PVT. LTD. And E.C. 156 of 2020 I.A. No. GA 1 of 2020 OPTIMAL POWER SYNERGY INDIA PVT. LTD. Vs BHARAT HEAVY ELECTRICALS LTD. (BHEL) For the AwardHolder in E.C./ : Mr. Tilak Kumar Bose, Sr. Adv. Respondent in A.P. Mr. Ganesh Prasad Shaw, Adv. Mr. Gaurav Kumar, Adv. [ For the AwardDebtor in E.C./ : Mr. Jishnu Saha, Sr. Adv. Petitioner in A.P. Mr. Touseef Khan, Adv. Mr. Ishan Saha, Adv. Mr. Arindam Paul,Adv. Last Heard on : 08.03.2022. Delivered on : 23.03.2022. Moushumi Bhattacharya, J. 1. Three applications filed by the parties before the Court are being considered in this judgment. 2 2. The first application is for setting aside of an Award dated 24th September, 2019 passed by the Facilitation Council under the provisions of The Micro, Small and Medium Enterprises Development Act, 2006 wherein Optimal Power Synergy emerged as the Awardholder. The second application is for stay of the Award under section 36 of The Arbitration and Conciliation Act, 1996. Both these applications have been filed by Bharat Heavy Electricals Limited (BHEL), the Awarddebtor. The third is an Execution Petition filed by Optimal for execution of the Award. 3. The prayer of the Awarddebtor, BHEL, is that the Award should be stayed pending hearing of the application for setting aside of the Award. The Awardholder Optimal prays for withdrawing 75% of the principal amount of Rs. 61,08,654/ awarded to Optimal by the Facilitation Council without being required to furnish security in lieu of such withdrawal. 4. Mr. Tilak Kumar Bose, learned senior counsel appearing for the Award holder Optimal, relies on the provisions of the MSME Act to urge that section 19 of the said Act requires the appellant to deposit 75% of the amount of the Award before an application for setting aside of the Award can be entertained. Counsel further relies on the proviso to section 19 under which the Court can make an order for payment of such percentage of the amount deposited by the appellant to the supplier as the court may consider to be reasonable. Counsel submits that Optimal is in a precarious financial condition and that the title deeds which Optimal initially wanted to deposit as security in exchange for the amount to be withdrawn are defective. 3 5. Mr. Jishnu Saha, learned senior counsel appearing for the Award debtor BHEL, seeks stay of the impugned Award on the ground that the Awarddebtor has already deposited 50% of Rs. 2,09,16,171/ (which is 75% of the total amount comprising of the principal sum awarded plus interest) in cash with the Registrar Original Side of this Court and has also given a bank guarantee of the balance 50% of the amount in compliance with the direction passed on 1st September, 2021. Counsel submits that Optimal should not be permitted to withdraw any amount of the deposit lying with the Registrar without furnishing security. Counsel seeks to distinguish the provisions of the MSME Act and the Arbitration and Conciliation Act, 1996 and submits that unconditional withdrawal of the amount deposited is not contemplated under the former. 6. A brief background of the three applications is necessary for a better understanding of the stand taken by the parties before this Court. The impugned Award was passed by the West Bengal State Micro Small Enterprises Facilitation Council under section 18 of the MSME Act on 24th September, 2019 on a reference by Optimal arising out of a dispute with BHEL. BHEL is the buyer and Optimal is the supplier as defined under sections 2 (d) and (n) respectively of the MSME Act. The Award notes that Optimal is a small manufacturing enterprise which issued eight purchase ord