POWER EXPONENT Vs. LANCO INFRATECH LTD EPC DIVISION

JUDGEMENT

(1.) Consequent upon the order (Award) Annexure A-1, this petition has been filed against the judgment debtor for recovery of the decretal amount i.e. Rs. 30,79,474/- together with interest Rs. 23,20,994/- total Rs. 54,00,468/- by issuance of warrant of attachment of moveable and immovable property of the JD and putting the same to auction. The JD, however, has filed objections to the execution petition and questioned the legality and validity of the award sought to be executed on the grounds inter-alia that the same being without jurisdiction is nullity. The provisions contained under Section 18 of the Micro, Small and Medium Enterprise Development Act, 2006 (hereinafter referred to as the 'Act' in short) have been pressed into service. Section 18 of the Act read as follows:

(2.) It is seen that in the event of dispute having arisen between the supplier and buyer, it is the Micro and Small Enterprise Facilitation Council (MSEFC) to resolve the same by way of trying conciliation between the parties and in the event of no settlement is arrived at, either to take the dispute itself for arbitration or refer it to an institution or centre providing alternate dispute resolution services for arbitration. In the case in hand, the supplier M/s Power Exponent Motor Market, Berri, Tehsil Sadar, District Bilaspur/petitioner-DH herein has brought the dispute qua payment of Rs. 39,79,474/- by the buyer Ms. Lanco Infratech Limited/respondent-JD herein to H.P. Micro and Small Facilitation Council, Udyog Bhawan, Bemloe, Shimla. The Council though forwarded the copy of reference made to it by the petitioner-DH to respondent-JDs on 26.06.2013, however, the notice could be served upon both the petitioner and JDs for 16.07.2013. The appearance, however, was made only on behalf of the petitioner and not on that of JD. The Council taking note of the part payment allegedly made by the JD on 26.09.2013 and an e-mail allegedly received by the petitioner from the JD indicating therein the payment schedule, while dropping the conciliation proceedings has passed ex-parte award, Annexure A-1 against the JD with a direction to pay the balance amount of delayed payment in terms of payment schedule allegedly e-mailed to the petitioner.

(3.) As a matter of fact, JD in this case did not appear and participated in the proceedings conducted to settle the dispute amicably by way of conciliation. The appropriate course available to the Council, therefore, was to have taken up the reference for arbitration either itself or referred the same to an institution or centre providing alternate dispute resolution services for conducting arbitration. The Council, however, has neither converted itself into an Arbitral Tribunal or referred it to some other institution or centre providing alternate dispute resolution services and rather taking note of the so called payment of Rs. 5,00,000/- made by the respondent-JD towards part payment of delayed payments and e-mail allegedly agreeing therein the time schedule for payment of the balance amount has passed the order sought to be executed in this petition