Supplementary-1 Cause List v. Aibak Electric Industries, Barzulla, Sanat Nagar, Srinagar

Srinagar (for short ‘the Council’), Kashmir Division, Srinagar, in an application titled ‘Irshad Ahmad Shah, 9/10 (C) Aibak Industries v. CM (M) No. 309/2023; CM No. 6825/2023 Caveat No. 2626/2023 Executive Engineer, Electric, Division Kulgam’ as well as an Order dated 13th of June, 2023 passed by the learned Additional District Judge (Bank Cases), Srinagar as the Executing Court in Execution Petition titled ‘Aibak Electric Industries v. Chief Engineer, M&RE Wing and Anr.’

03. The Petitioners are primarily aggrieved of the Award/ Order dated 20th of April, 2021 passed by the Council, claiming that the impugned Award/ Order is bad, neither having been issued on cogent reasons nor the proceedings under the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘the Act of 2006’) have been followed and, as such, seek setting aside of the Award/ Order as well as the Order dated 13th of June, 2023 passed by the Executing Court with respect thereto.

04. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter.

05. M/S Laway and Shah, learned Government Advocates, appearing for the Petitioners, have vehemently argued that the Order sought to be executed through the Executing Court does not conform to the requirements of an Award passed under the Act of 2006, asserting further that in terms of Section 18 of the Act, the Council is under an obligation to conciliate the matter between the parties and in case the conciliation does not succeed, then the matter is to be arbitrated in terms of the Arbitration & Conciliation Act, 1996. They have further argued that the Order sought to be executed has been passed by the Joint Director, I & C Department as Secretary of the Council and that this Order dated 20th of April, 2021 passed by the Secretary of the Council cannot be stated to be an Award in accordance with law, therefore, the Award sought to be executed before the Executing Court is not an Award in the eyes of law and cannot be acted upon and that the Executing Court had fallen in error by proceeding in the matter, including attachment of the accounts of the Respondent by the impugned Order dated 13th of June, 2023. It has been further pleaded that the Award and the Order impugned passed by the Executing Court thereto are required to be set aside, allowing the application moved by the CM (M) No. 309/2023; CM No. 6825/2023 Caveat No. 2626/2023 Petitioner for interim relief till the matter is considered and decided by this Court in the main Petition.

06. Mr Azhar-ul-Amin, the learned Counsel, appearing on behalf of the Respondent, on the other hand, has vehemently opposed the plea raised by the learned Counsel for the Petitioners, asserting that the Writ Petition on hand is not maintainable in the present form which has been preferred by the Government Officers as functionaries of the State against a private individual/ enterprise, more so, for the reason that there is an alternate efficacious remedy available to the Petitioners under Section 34 of the Arbitration & Conciliation Act, 1996 to challenge an Award passed by the Council. He has also raised a serious question with regard to entertaining the present Petition without depositing of 75% of the awarded amount on part of the Petitioners, as is required under Sub-Rule 4 of Rule 10 of the Jammu & Kashmir Micro and Small Enterprises Facilitation Council Rules, 2017, notified vide SRO No. 251 dated 19th of June, 2017. The learned Counsel has further argued that the Petitioners have, throughout, admitted the liability which is the subject matter of the Award and the Execution Petition before the Council, the Executing Court and also not specifically denied in this Petition. It is contended that the only objection raised by the Petitioners with regard to the execution proceedings is that the Saubhagya Scheme of the Government, under which these payments are to be made, is the subject matter of a probe by the Anti- Corruption Bureau of the Union Territory of Jammu & Kashmir and submits that the Anti-Corruption Bureau has already finalized its report in the month of January, 2022, which had been submitted to the Government through Principal Secretary to Government, General Administration Department vide No. ACB-FIR-3/4-20-1657-60 dated 27th of January,

07. Mr Azhar-ul-Amin further alleged that the Petitioners have not come to this Court with clean hands, suppressing the material facts with regard to Award passed by the Council and also the ACB report, whereby the probe had been completed. He has further argued that the Petitioners CM (M) No. 309/2023; CM No. 6825/2023 Caveat No. 2626/2023 have no case to challenge the impugned Award in view of the communication of the Chief Engineer (Distribution), KPDCL addressed to the Executing Court admitting the claim of the Respondent. He has also argued that the Petitioners, by not making timely payments for the supplies made by the Respondent, have been defeating the beneficial legislations of the Government, encouraging the entrepreneurship by the small enterprises in terms of the industrial policy of the Government, which not only provide for making quick payments, but also have time limit that the payments are not to be delayed more than 45 days, as provided under Section 16 of the Act with a provision of payment along with a certain rate of interest.

08. The main thrust of the arguments of both the learned Government Advocates, representing the Petitioners, is on the validity of the Award sought to be executed before the Executing Court, raising the contention that the Award has not been signed by the members of the duly constituted Council, but by its Secretary only. The Council has decided the matter in its meeting, after hearing both the sides in presence of the representatives of both the sides and after taking into account their claims, particularly in the event of admitting the claim of the Respondent by the Petitioners, therefore, the Award cannot be said to be passed not by the Council as required under the Act. The Order with regard to which a reference has been made by the learned Counsel for the Petitioners passed by the Secretary of the Council is just a communication to convey the Award passed by the Council by its Secretary and, therefore, by no stretch of imagination, it can be said that the Award passed by the Council has not been passed by the validly constituted Council.

09. In view of the serious legal objections raised by the learned Counsel for the Respondent with regard to the maintainability of the Writ Petition, particularly in view of Section 34 of the Arbitration & Conciliation Act and the requirement of deposit of 75% of the Award amount, which has not been deposited by the Petitioners, admitted liability throughout by the Petitioners, ACB probe having been completed and without making reference to the Award dated 6th of March, 2021 passed by the Council, CM (M) No. 309/2023; CM No. 6825/2023 Caveat No. 2626/2023 which are important factors for consideration of the matter, this Court is of the considered opinion, that no case is made out for indulgence of this Court at this stage, particularly when the Petitioners have chosen to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution, without pointing out any irregularity, not to talk of any illegality, allegedly committed by the Executing Court, while proceeding in the Execution Petition.

10. Had the Petitioners any grievance against the Award, they could have challenged the same before the competent Court of law in accordance with law under Section 34 of the Arbitration & Conciliation Act, 1996, which has not been resorted to by the Petitioners. The Petitioners, through this Petition, while invoking the supervisory jurisdiction of this Court, have questioned the proceedings before the Executing Court without pleading or urging any irregularity or illegality having been committed by the Executing Court while proceeding in the matter. Therefore, the Award, so long it is not challenged by the Petitioners, as well as the proceedings before the Executing Court without raising any specific irregularity or illegality being committed by the Executing Court cannot be interfered with, before this Court while invoking the supervisory jurisdiction vested in this Court under Article 227 of the Constitution of India.

11. Having regard to the aforesaid discussion and observations made hereinabove, this Court is of the considered opinion that the Petition on hand is grossly misconceived and, thus, liable to be dismissed in limine. Accordingly, the Writ Petition is dismissed, along with the connected CM. (M. A. CHOWDHARY) JUDGE SRINAGAR November 8th, 2023 “TAHIR”