Jharkhand High Court

Senior Divisional Commercial Manager ... vs The Micro Small Enterprise ... on 20 January, 2020

Author:
Anubha Rawat Choudhary

Bench:
Anubha Rawat Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) No. 4676 of 2018

1. Senior Divisional Commercial Manager (Sr. DCM), Office of the
Senior Divisional Manager (Commercial), South Eastern Railway,
Hatia, P.O. & P.S.-Hatia, District-Ranchi
2. Sr. Divisional Finance Manager, South Eastern Railway, Hatia,
P.O. & P.S.-Hatia, District-Ranchi
... ... ... Petitioners
Versus
1. The Micro Small Enterprise Facilitation Council, Industries
Department, Government of Jharkhand, Nepal House, Doranda,
P.O. & P.S. Doranda, District-Ranchi through its Chairperson;
2. M/s Om Prakash Upadhyay, a partnership firm, through its
partner-Sri Shiv Shankar Sharma, son of Late Motilal Sharma,
situated and working at Village-Om Prakash Nagar, Baragarh,
P.O. Hatia, Tupudana, P.S. Hatia, District-Ranchi
... ... ... Respondents
---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Petitioners : Mr. Pradip Modi, Advocate
Mr. Gautam Rakesh, Advocate
For the Respondent No. 2 : Mr. Rahul Kumar Gupta, Sr. S.C. I
Mr. Kushal Kumar, Advocate

---

12/20.01.2020

1. Heard Mr. Pradip Modi, learned counsel appearing on behalf
of the petitioners along with Mr. Gautam Rakesh, Advocate.

2. Heard Mr. Rahul Kumar Gupta, learned counsel appearing on
behalf of the respondent No. 2 alongwith Mr. Kushal Kumar,
Advocate.

3. This writ petition has been filed for the following reliefs: -

"This writ petition has been filed for quashing of the order dated
28.06.2018 passed by respondent no. 1 as contained in Memo No.
1703 (Annexure-5) and the entire proceedings being case no.
JHMSEFC 25/2015 New Case No. JH/20/M/00015 on the ground
that the same is wholly without jurisdiction."

4. The learned counsel for the Respondent No.-2 has submitted
that the maintainability of the present writ petition challenging
the award passed by the Respondent No.-1 may be decided as
preliminary issue.

Argument of the petitioners on the point of maintainability of the
writ petition

5. The learned counsel for the petitioners submits that the
impugned award passed by the Respondent No.1 is wholly
without jurisdiction and accordingly, a nullity in the eyes of
law and submits that there has been gross violation of
principles of natural justice while passing the impugned
award. It is submitted that considering aforesaid two points,
the present writ petition has been filed.

6. The learned counsel has also submitted that the plea of
jurisdiction to entertain the claim of the respondent no.2 was
raised before the Respondent No.-1. During the proceedings,
still the Respondent No.-1 entertained the claim and rejected
the point of jurisdiction raised by the petitioners by the
impugned award. The learned counsel reiterates that as the
point of jurisdiction is involved in this case, therefore, the writ
petition is maintainable.

7. The learned counsel has referred to following judgements: -

i. Judgment in the case of
Whirlpool Corporation vs. Registrar
of Trade Marks, Mumbai and Others
reported in (1998) 8
SCC 1(Para-14 and 15 ) to submit that it has been held by
the Hon'ble Supreme Court that alternative remedy
does not to operate as a bar to writ petition in at least
three contingencies, namely, where the writ petition has
been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation
of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the
validity of an Act is challenged.

ii. Judgment reported in (2017) 8 SCC 830 (
S.N.D.P.
Sakhayogam vs. Kerala Atmavidya Sangham and Others
)
(Para-16 and 17) to submit that the issue of jurisdiction,
which goes to the root of the case, if found involved, has
to be tried at any stage of the proceedings, once brought
to the notice of the Court.

iii. Judgment reported in 2019 (4) JCR 243 (Jhr.) [State Project
Director, through Uma Shankar Singh versus M/s. Raj
Enterprises, Nainital (Uttarakhand)] to submit that it has
been held by this Court that a writ petition under
Article
of the Constitution of India is maintainable against
the order passed by the commercial court, but the
Courts would be slow in entertaining such writ petition
considering the object of the
Commercial Courts Act,
.

iv. Judgment passed by this court being W.P. (C) No. 6378
of 2014 dated 14.06.2018 wherein it has been held that
power of the High Court under
Article 226
of the
Constitution of India is plenary in nature and
involvement of contractual dispute or availability of
alternative remedy cannot, ipso-facto, be a ground for
dismissal of a writ petition. It has been held that public
law element was involved in the said case, and it has
been held that the respondent of the said case was
required to act fairly and reasonably and has also been
held that arbitrariness in State action can be examined
under
Article 226
of the Constitution of India.
v. Judgment passed by the Hon'ble Supreme Court
reported in (2018) 13 SCC 462 (
Bank of India vs. Yadav
Consultancy Services Private Limited and another
)
(Paragraph No. 13 and 14) to submit that in the said case,
the concerned High Court did not decide the point of
jurisdiction and accordingly, the Hon'ble Supreme
Court held that the order of the High Court suffered
from serious infirmity and was liable to be set aside.
Learned counsel submits that the said case before the
Hon'ble Supreme Court also arose out of a case under

Micro, Small and Medium Enterprises Development
Act, 2006
(hereinafter '
MSMED Act
') and accordingly,
the point regarding lack of jurisdiction of Respondent
No. 1 having been raised in the present case, it is the
duty of this court to consider and decide such point.

Argument of Respondent No. 2

8. Learned counsel on behalf of the respondent No. 2 on the other
hand, has relied upon following judgements: -

a. Judgment passed by this court in W.P. (C) No. 6 of 2002
dated 3.3.2006 (paragraph no. 9) to submit that the present
writ petition has been filed challenging the award and
there is no dispute that the impugned award is
governed by the provisions of
Arbitration and
Conciliation Act, 1996
(hereinafter referred to as the Act
of 1996) and appropriate remedy to challenge the award
is under
Section 34
of the Arbitration and Conciliation
Act, 1996. He submits that this court, in paragraph 9 of

the said judgment
, has held that in view of the Scheme
of the Act of 1996, and particularly the spirit of
Section 5

thereof, there was no reason for the writ court to
exercise its discretionary jurisdiction to entertain the
challenge to the award on the grounds which were
urged in the said case.

b. Judgment reported in (2003) 5 SCC 399 (para 13 ) (
Seth
Chand Ratan versus Pandit Durga Prasad and others
) to
submit that the statutory remedies which are provided
under the statute cannot be bypassed to take recourse to
proceeding under
Articles 226
and
of the
Constitution of India and such a course of action may
enable a litigant to defeat the provisions of the statute
which may provide for certain conditions for filing the
appeal, like limitation, payment of court fees or deposit
of some amount or fulfilment of some other conditions
for entertaining the appeal. Learned counsel submits
that as per the provisions of the
MSMED Act
, there is
condition of pre-deposit to the extent of 75% of the
award for challenging the same and in the instant case,
the petitioner cannot be permitted to by-pass the
statutory remedies and pre-deposit and challenge the
award under
Article 226
and
of the Constitution of
India.

c. The learned counsel for the respondent has also referred
to a judgment passed by the Hon'ble Supreme Court
reported in (2005) 8 SCC 618 (SBP and CO Limited versus
Patel Engineering Limited and another) para 45 and
judgment reported in (2010) 8 SCC 110, para 44,to submit
that the present writ petition is not maintainable against
an award.

9. Learned counsel referred to the impugned award to submit
that the point of jurisdiction has been decided by the
respondent no. 1. He further refers to
Section 16
of the
Arbitration and Conciliation Act, 1996 to submit that the plea,
that the arbitral tribunal does not have the jurisdiction, has to
be raised before the Arbitral Tribunal itself and the same once
decided by the Arbitral Tribunal can be challenged under

Section 34
of the Arbitration and Conciliation Act, 1996. He
submits that the point of jurisdiction and other points which
were raised and considered by the respondent no. 1 while
passing the award could have been challenged by the
petitioner under
Section 34
of the Arbitration and Conciliation
Act, 1996 which has to be filed within the stipulated time
frame and has limited scope for interference against the
arbitral award. Learned counsel has also submitted that the
subject matter of dispute was within the jurisdiction of the
respondent no. 1 and it cannot be said that the award suffers
from patent lack of jurisdiction. The learned counsel hastens to
add that the jurisdiction once decided in terms of
Section 16
of
the Arbitration and Conciliation Act, 1996, whatever be its
nature, can be raised only by way of objection under
Section 34

of the Arbitration and Conciliation Act, 1996.

10. Without prejudice to the aforesaid submissions regarding the
proper remedy under
Section 34
of the Arbitration and
Conciliation Act, 1996, learned counsel also submits that the
present case cannot be said to be a case of patent lack of
jurisdiction, in as much as, in order to examine the jurisdiction
of the respondent no. 1 the records as well as other plea of the
parties is required to be examined requiring appreciation of
materials on record and legality of the arbitral award on
merits.

Rejoinder Argument of the petitioners

11. In response, Learned counsel appearing on behalf of the
petitioners submits that there is no dispute that the arbitration
award passed by the respondent no. 1 could have been
challenged under
Section 34
of the Arbitration and
Conciliation Act, 1996, but this by itself does not ousted the
jurisdiction of this court to entertain challenge to the
impugned award under
Article 226
of the Constitution of
India particularly when a plea of jurisdiction and gross
violation of principles of natural justice while passing the
impugned award are grounds of challenge. The learned
counsel has also referred to the judgment which has been
relied upon by the respondent passed in W.P. (C) No. 6 of
2002, and he refers to paragraph 7 thereof to submit that this
court, while considering the challenge to another award
passed by the Respondent No. 1, refused to entertain the writ
petition as it was not the case that the reference itself was not
maintainable and the supplier was not an enterprises covered
under the provisions of
MSMED Act, 2006
. The learned
counsel for the petitioners submits that the aforesaid grounds
are the points of challenge in the present case and therefore the
writ petition is maintainable and accordingly the said
judgment which has been relied upon by the respondent No. 2
is actually in favour of the writ petitioners.
Findings of the Court

12. After hearing the learned counsels for the parties, this court
finds that there is no dispute that the impugned arbitration
award in the present case is dated 28.06.2018 which has been
challenged before this Court by filing the present writ petition
on 12.09.2018. The notices were issued to the respondent no. 2
vide order dated 04.10.2018 and the respondent no. 2 appeared
by filing a Vakalatnama.

13. After hearing counsel for the parties and after going through
the materials on record, this court finds that the present
petitioners had raised the plea before the respondent no. 1
challenging the maintainability of the case filed by the
Respondent No. 2. It was also pleaded that the claimant is not
covered within the definition of supplier as defined under

Micro, Small and Medium Enterprises Development Act, 2006

and that the claimant became a supplier within the meaning of
the said Act of 2006 w.e.f. 26.03.2015 and accordingly, the
claimant could not claim benefit under the Act for supply of
services rendered by it before 26.03.2015. It was also the case of
the petitioners before the respondent no. 1 that the claim itself
was barred by limitation. The aforesaid plea was objected by
the respondent no.2 in the proceedings before the respondent
no.1. The respondent no. 1 decided the aforesaid points vide
another order dated 25.05.2018 and has been recorded in the
impugned award. Upon going through the impugned award,
this court finds that the point of jurisdiction was raised and
argued by the parties and was decided on 25.05.2018 by citing
reasons.

14. This Court finds that in the judgment passed by the Hon'ble
Supreme Court in the case reported in (2005) 8 SCC 618 (
S.B.P.
and Company vs. Patel Engineering Ltd. and Another
), it has been
held in paragraph 45 and 46 as under:-

45. It is seen that some High Courts have proceeded on the basis that
any order passed by an Arbitral Tribunal during arbitration, would be
capable of being challenged under
Article 226
or 227 of the
Constitution. We see no warrant for such an approach.
Section 37

makes certain orders of the Arbitral Tribunal appealable. Under
Section
, the aggrieved party has an avenue for ventilating its grievances
against the award including any in-between orders that might have been
passed by the Arbitral Tribunal acting under
Section 16
of the Act. The
party aggrieved by any order of the Arbitral Tribunal, unless has a right
of appeal under
Section 37
of the Act, has to wait until the award is
passed by the Tribunal. This appears to be the scheme of the Act. The
Arbitral Tribunal is, after all, a creature of a contract between the
parties, the arbitration agreement, even though, if the occasion arises,
the Chief Justice may constitute it based on the contract between the
parties. But that would not alter the status of the Arbitral Tribunal. It
will still be a forum chosen by the parties by agreement. We, therefore,
disapprove of the stand adopted by some of the High Courts that any
order passed by the Arbitral Tribunal is capable of being corrected by the
High Court under
Article 226
or 227 of the Constitution. Such an
intervention by the High Courts is not permissible.

46. The object of minimising judicial intervention while the matter is in
the process of being arbitrated upon, will certainly be defeated if the
High Court could be approached under
Article 227
or under
Article 226

of the Constitution against every order made by the Arbitral Tribunal.

Therefore, it is necessary to indicate that once the arbitration has
commenced in the Arbitral Tribunal, parties have to wait until the
award is pronounced unless, of course, a right of appeal is available to
them under
Section 37
of the Act even at an earlier stage.

15. There is no dispute that objection to jurisdiction can be raised
under
section 16
of the aforesaid Act of 1996 and has been
raised in the present case before the Respondent no.1 and has
been decided vide order dated 25.05.2018 against the present
petitioners. Applying the law
laid down by
the Hon'ble
Supreme Court in (2005) 8 SCC 618 (supra), such decision on
the point of jurisdiction is also subject to challenge under
Section 34
and also under
Section 37
of the said Act of 1996
once the final award is passed. In the present case,
appreciation of facts and law would be required for the
purpose of deciding the jurisdiction of the respondent no. 1.
There is no dispute, even from the side of the petitioners that
the application for setting aside the award under
Section 34
of
the Arbitration and Conciliation Act, 1996 is maintainable
before the competent court, even on the point of jurisdiction.

16. The Hon'ble Supreme Court in the judgment reported in (2003)
5 SCC 399 (Seth Chandra Pd. Versus Pandit Durga Prasad) at
Paragraph No. 13 has categorically held that the litigant cannot
be permitted to defeat the provisions of the Statute which may
provide for certain conditions for filing of appeal, like
limitation, payment of court fee or deposit of some amount or
fulfilment of some other conditions for entertaining the appeal
and they may not be permitted to bypass the said remedy to
take recourse to proceeding under
Article 226
and
of the
Constitution of India. Paragraph No. 13 of the aforesaid
judgment is quoted hereunder for ready reference.

Para-13. Even otherwise, the view taken by the Division Bench of the
High Court for repelling the objection of the appellant regarding the
maintainability of the writ petition that an alternative remedy does not
divest the High Court of its powers to entertain petitions under
Articles
and
of the Constitution, has hardly any application on the facts
of the present case. It has been settled by a long catena of decisions that
when a right or liability is created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy before seeking the discretionary
remedy under
Article 226
of the Constitution. This rule of exhaustion of
statutory remedies is no doubt a rule of policy, convenience and
discretion and the court may in exceptional cases issue a discretionary
writ of certiorari. Where there is complete lack of jurisdiction for the
officer or authority or tribunal to take action or there has been a
contravention of fundamental rights or there has been a violation of rules
of natural justice or where the Tribunal acted under a provision of law,
which is ultra vires, then notwithstanding the existence of an alternative
remedy, the High Court can exercise its jurisdiction to grant relief. In the
present case, the alternative remedy of challenging the judgment of the
court was not before some other forum or tribunal. On the contrary, by
virtue of sub-section (3) of
Section 27
of the Act, the order passed by the
court amounted to a decree against which an appeal lay to the High
Court. When the party had statutory remedy of assailing the order passed
by the District Court by filing an appeal to the High Court itself, he could
not bypass the said remedy and take recourse to proceedings under

Articles 226
and
of the Constitution. Such a course of action may
enable a litigant to defeat the provisions of the statute which may provide
for certain conditions for filing the appeal, like limitation, payment of
court fee or deposit of some amount or fulfilment of some other conditions
for entertaining the appeal.

17. So far as the judgement relied upon by the petitioners in the
case of
Whirlpool Corporation vs. Registrar of Trade Marks,
Mumbai and Others
reported in (1998) 8 SCC 1 is concerned, it
has been clearly held in Para 15 that under
Article 226
of the
constitution , the High Court, having regard to the facts of the
case, has a discretion to entertain or not to entertain a writ
petition, but the High Court has imposed upon itself certain
restrictions, one of which is that if an efficacious remedy is
available, the High Court would not normally exercise its
jurisdiction. In this background, it has been held that the
alternative remedy would not be a bar at least in three
contingencies, namely, where the writ petition has been filed
for the enforcement of any of the Fundamental Rights or where
there has been a violation of the principle of natural justice or
where the order or proceedings are wholly without
jurisdiction or the validity of an Act is challenged. Thus, it is
clear that while entertaining the writ petition also, the court
has to exercise sound discretion based on the facts of the cases
as well as the statutory scheme dealing with the matter and it
cannot be said that merely because a point of jurisdiction is
involved, the writ petition has to be necessarily involved. In
the said judgement the Hon'ble Supreme court has referred to
judgement passed in the case of Rashid Ahmed -versus-
Municipal Board reported in AIR 1950 SC 163 and held in
Para 16 as follows:-

16."
Rashid Ahmed v. Municipal Board
. Kairana laid down that
existence of an adequate legal remedy was a factor to be taken into
consideration in the matter of granting writs.

This was followed by

another Rashid
case, namely
K.S. Rashid & Son v. Income Tax
Investigation Commission
which reiterated the above proposition and
held that where alternative remedy existed, it would be a sound
exercise of discretion to refuse to interfere in a petition under Article

226. This proposition was; however, qualified by the significant
words, " unless there are good grounds therefor" which indicated that
alternative remedy would not operate as an absolute bar and that writ
petition under
Article 226
could still be entertained in exceptional
circumstances."

This court finds that in the aforesaid judgement, the show
cause notice itself was challenged and the same was ultimately
quashed by the Hon'ble Supreme Court by holding that the
Registrar could not have legally issued suo-motu notice under

Section 56(4)
of the Trade and Merchandise Marks Act, 1958
for cancellation of certificates of registration/renewal already
granted.

The facts in the present case is totally different. The
jurisdictional issue was raised and contested before the arbitral
tribunal and decided by a reasoned order and subsequently
final award was passed which is under challenge in this writ
petition. In such circumstances, this court is not inclined to
exercise powers under Article 226/227 of the Constitution of
India as such exercise of power would be against the very
scheme of the
Arbitration and Conciliation Act, 1996
and the
issue involves appreciation of the facts of the case.

18. The Judgment, relied upon by the petitioners, reported in
(2017) 8 SCC 830 (
S.N.D.P. Sakhayogam vs. Kerala Atmavidya
Sangham and Others
) arose out of suit filed in the civil court and
the impugned judgement was the judgement passed by the
concerned High Court in second appeal. The Hon'ble Supreme
Court considering the point of jurisdiction involved, which
was not taken note of the concerned courts, remanded the
matter to the trial court for disposal of the suit afresh. This
judgement does not help the petitioners in any manner as the
issue of jurisdiction was raised and contested by the parties
before the respondent no. 1 and it was duly decided by citing
reasons. The petitioners, instead of availing the statutory
remedy under the aforesaid Act of 1996 as per the procedure
prescribed under the statute, filed the present writ petition
challenging the award on the point of jurisdiction. This court is
not inclined to entertain this writ petition under Article
226/227 of the Constitution of India which has been filed
bypassing the statutory remedies. It cannot be said that once a
writ petition has been filed challenging jurisdiction of the
authority or alleging violations of the principles of natural
justice, the writ petition has to be necessarily entertained and
decided on merits. Such an interpretation would be against the
very nature of extra ordinary discretionary jurisdiction
exercised under
Article 226
of the constitution of India and
also against the scheme of the aforesaid Act of 1996 as the
point of jurisdiction of the Arbitral Tribunal is required to be
raised as per the scheme of the Act of 1996 with particular
reference to
Section 16
thereof and the remedy as well as the
manner of availing the remedy against such decision is
provided under the Act itself.

19. So far as the Judgment reported in 2019 (4) JCR 243 (Jhr.) [State
Project Director, through Uma Shankar Singh versus M/s. Raj
Enterprises, Nainital (Uttarakhand)] is concerned, the same does
not apply to the facts and circumstances of this case as in the
said case, this court has considered the point as to whether a
writ petition under
Article 227
of the Constitution of India is
maintainable against an order passed by the commercial court
and it has been held that the writ petition would be
maintainable, but the Courts would be very slow in
entertaining such writ petition considering the object of the

Commercial Courts Act, 2015
. In the said case, the petition of
the petitioner that the award was a nullity was not taken on
record by the learned executing court on the ground of expiry
of 120 days as prescribed under order VIII
Rule 1 of C.P.C
as
applicable to the commercial courts. In such circumstances, the
writ petition filed against the order of executing court was
held to be maintainable and was also entertained and the
matter was remitted back to the learned executing court
considering the facts and circumstances of the said case.

In the present case, the arbitral award has been
challenged and the proceedings does not arise from any order
passed by learned court below although it is not in dispute
that on the date of filing of this writ petition, no case was
pending for execution of the award. There is a vast difference
between entertaining a writ petition against an arbitral award
and entertaining a writ petition against an order passed by the
court below in the matter of execution of award. Accordingly,
the aforesaid judgement does not apply to the facts and
circumstances of this case.

20. The judgement passed by this court being W.P. (C) No. 6378
of 2014 dated 14.06.2018 also does not apply to the facts and
circumstances of this case where a writ petition was
entertained and decided by holding that power of the High
Court under
Article 226
of the Constitution of India is plenary
in nature and involvement of contractual dispute or
availability of alternative remedy cannot, ipso-facto, be a
ground for dismissal of a writ petition and it was held that
arbitrariness in State action involving public law element can
be examined under
Article 226
of the Constitution of India .
This judgement does not apply to the facts of this case where
arbitral award is directly under challenge bypassing the
statutory remedies under the aforesaid Act of 1996.

21. So far as the judgment reported in (2018) 13 SCC 462 (
Bank of
India vs. Yadav Consultancy Services Private Limited and another
)
is concerned, this court finds that in the said case, the award
was challenged under
Section 34
of the Arbitration and
Conciliation Act, 1996 wherein certain point of jurisdiction was
taken and thereafter, the matter was challenged before the
High Court under
Section 37
of the Arbitration and
Conciliation Act, 1996 which was also dismissed. The Hon'ble
Supreme Court was of the considered view that the High
Court erred in not considering the question of lack of
jurisdiction as raised by the counsel. This Court finds that
there is no dispute that the point regarding lack of jurisdiction
can be raised under
Section 34
of the Arbitration and
Conciliation Act, 1996 if it comes within the permissible
grounds and the judgment under
section 34
can be subject
matter of further challenge under
Section 37
of the Arbitration
and Conciliation Act, 1996 and the courts under the Act of 1996
are under an obligation to decide the point of jurisdiction/lack
of jurisdiction in accordance with law. In the instant case,
admittedly the petitioners have not approached the Civil
Court under
Section 34
of the Arbitration and Conciliation Act,
1996 and accordingly, have not approached this court under

Section 37
of the aforesaid Act of 1996. Rather the petitioners
have straightway challenged the award under
Article 226
of
the Constitution of India raising the point of jurisdiction of the
arbitral tribunal, which has already been decided by the
tribunal by a reasoned order as stated above. Considering the
nature of extra-ordinary and discretionary jurisdiction under

Article 226
of the Constitution of India and the facts and
circumstances of this case coupled with the scheme of the
aforesaid act of 1996, this court is not inclined to entertain the
writ petition and is of the view that the writ petition is not
maintainable.
22. A coordinate bench of this court in judgment dated 03.03.2016
passed in WPC No. 6/2002 has held in Para 8 that when
specific grounds to assail an award are already available for
challenge under
section 34
of the aforesaid Act of 1996, there is
no reason why the petitioner should not have availed the
statutory remedy available under the provisions of the Act of
1996 which are in the nature of special legislation. The counsel
for the petitioners has tried to distinguish this case by referring
to certain observation of the court in Para 7 of the said
judgement and submitted that it has been observed that
in that
case
, there was no such ground that the reference itself was not
maintainable by alleging that the supplier itself was not
covered under the provision of the
MSMED Act, 2006
.

This court is of the considered view that the said
distinguishing feature has no bearing in this writ petition as
the said point alleging that the Respondent No. 2 was not
covered under the
MSMED Act, 2006
has been considered by
the arbitral award and it is not in dispute that such point can
be subject matter of challenge under
Section 34
of the aforesaid
Act of 1996. In this view of the matter, the legal principle as
held by this Court in Para 8 of the said judgement is still
applicable to the facts of this case and applying the said
principle of law, this court is not inclined to entertain this writ
petition.

23. As a result of the aforesaid findings, this court is not inclined
to entertain the present writ petition filed by the petitioners
against the impugned award and is also of the considered
view that the present writ petition against the impugned
award is not maintainable. Accordingly, the writ petition is
dismissed.

24. However, dismissal of this writ petition will not come in the
way of the writ petitioners to take appropriate remedies as
may be available to the petitioners in accordance with law and
it is observed that dismissal of this case or any observation
made in this order will not prejudice either of the parties in
any manner whatsoever as this court has not entered into the
merits of rival claims of the respective parties.

25. Since the writ petition is not being entertained and is held to
be not maintainable against an award governed by the
provisions of
Arbitration and Conciliation Act, 1996
, the
Interlocutory Application No. 5585 of 2019 filed by the
Respondent No. 2 seeking direction upon the petitioners to
deposit the statutory amount in this writ petition is also
dismissed.

26. Any other pending Interlocutory application is dismissed as
not pressed.

27. Let a copy of this judgement be immediately handed over to
the learned counsel for the parties.

(Anubha Rawat Choudhary, J.)
Binit/