The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.16423 of 2014 M/s. Hindustan Copper Ltd. ....... Petitioner -Versus- State of Odisha & others ....... Opp. Parties For Petitioner : Mr. G. Mukherji, Senior Advocate For Opp. Party Nos.1 & 2 : Mr. T. Pattanaik, Addl. Govt. Advocate For Opp. Party No.3 : Mr. M. Mishra, Senior Advocate ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------------------------------------------------- Date of Hearing: 24.01.2024 Date of Judgment: 28.02.2024 ------------------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioner, which is a Government of India Enterprise, incorporated and registered under the Companies Act, 1956, and has its operation in the State of Madhya Pradesh, has preferred the present Writ Petition challenging the letter dated 30th July, 2014/1st August, 2014 of the Director of Industries- cum-Chairman, MSEFC, Odisha. Vide the said communication, the General Manager of the Petitioner-Company was intimated that appointment of another Arbitrator by the Petitioner-Company is illegal and beyond law, as the matter has already been referred to the Micro and Small Enterprise Facilitation Council, shortly, ‘MSEFC’, and the proceeding is going on before the MSEFC. 2. The brief background facts which led to filing of the present Writ Petition, is that the Petitioner-Company, in order to run its unit, requires chilled cast iron grinding media balls, shortly, hereinafter ‘cast iron balls’. The Opposite Party No.3 showed interest to supply the said materials to the present Petitioner. As such, the Petitioner-Company issued purchase order dated 21.10.2000 for supply of materials. The conditions contained in the said purchase order formed the contract between the parties as the Opposite Party No.3 made supplies pursuant to the said purchase order. The purchase orders were time bound and the supplier, i.e. present Opposite Party No.3, was obliged to make the supplies within the stipulated dates failing which, it was liable to pay compensatory costs to the Petitioner-Company. Vide clause 20.0 of the said contract, there was an arbitration clause which provided for resolving any dispute, that may arise out of the contract. Subsequently, the Petitioner placed order for supply of cast iron balls of 80 mm diameter. However, the Opposite Party No.3 could not supply the materials in due time for which the W.P.(C) No.16423 of 2014 Page 2 of 24 Petitioner-Company could not process the same in time and sustained huge loss. Such loss was occasioned as the cast iron balls were an integral part in the process of extraction of the metal from the ores, without which the process of extraction came to a grinding halt. 3. The Petitioner-Company could not meet its targets and obligations to supply finished products to its consumers and as such, payments due to it were withheld. As a consequence thereof, the Petitioner could not make the payments in time. There was some delay in making the payments even though some payments were being made in the interregnum and the same is attributable to the delay caused in supply of goods by the Opposite Party No.3. Hence, the question of payment of interest for delay in making the payments does not arise as the delay, if any, was attributable to the Opposite Party No.3, who could not supply the materials in due time. Rather, it would be the Opposite Party No.3, who would be liable to indemnify the Petitioner for damages caused due to the lapses on its part by delaying the process of supplying the materials. 4. It is further case of the Petitioner, that without inspection of the cast iron balls, the payments could not have W.P.(C) No.16423 of 2014 Page 3 of 24 been made by the Petitioner. The delay in supply of the cast iron balls disturbed the entire production schedule of the Petitioner, thereby causing it further loss. However, it was mutually agreed between the parties that the Petitioner would not press for such losses if interest for delay in payment is not claimed by the Opposite Party No.3. The Opposite Party No.3, without honouring the contracts and the express understanding arrived upon at the time of finalization of the accounts, in conscious violation of the contract as well as its undertakings, approached the MSEFC under the Provision of the Micro, Small and Medium Enterprises Development Act, 2006, shortly, hereinafter ‘MSMED Act’, instead of approaching the Petitioner for appointment of Conciliator as per the provisions under the MSMED Act, though it is mandatory to issue notice under Section 21 of the Arbitration & Conciliation Act, 1996, shortly, hereinafter ‘1996 Act’. As per Section 18(3) of the MSMED Act, 2006, the provisions of the 1996 Act will apply to the proceeding under the MSMED Act, 2006. Hence, non issuance of a notice under Section 21 of the 1996 Act renders the entire proceeding vulnerable and untenable in law. 5. It is further case of the Petitioner that the present Opposite Party No. 3 has also chosen to approach the MSEFC much beyond the stipulated period of limitation, as the claim W.P.(C) No.16423 of 2014 Page 4 of 24 itself is hopelessly barred by time. However, surprisingly where a suit for recovery would be barred by law on the ground of limitation, a claim under a special statute has been entertained. This very fact raises a shadow of illegality and bias against the MSEFC, which somehow or the other wants to brush aside all statutory mandates and proceed with the merit of the dispute. The MSEFC, upon receipt of this illegal and unfounded claim of the Opposite Party No.3, proceeded to issue notice dated 13.09.2011 calling upon the Petitioner to appear and file its written statement. Such notice was issued mechanically by the Council without application of mind. Also Council failed to notice as to whether the mandatory prerequisites were fulfilled and as to whether the claim was within the stipulated period of limitation and / or whether the same was barred by provisions of any law. 6.
Facts
It is further case of the Petitioner that, the parties to the said contract have, by their consent, confined jurisdiction of any dispute arising out of the said agreement to be adjudicated by the District Court of Balaghat, Madhya Pradesh. As per Clause-30 of the said agreement, any disputes or differences between them could be referred to the sole arbitrator, who shall be the Chairman-cum-Managing Director of the Petitioner-Company and any dispute arising out of the contract, the jurisdiction would be W.P.(C) No.16423 of 2014 Page 5 of 24 within the District Court, Balaghat (M.P). The MSEFC, Cuttack, lacks inherent jurisdiction to enter into and decide the dispute, if any, raised by the Opposite Party No.3 and prima facie it has no jurisdiction to deal with the said dispute. Law is well settled that when the parties to the contract chose to submit particular jurisdiction, only the Court at that place shall have the jurisdiction to deal with the dispute. In the circumstance, the
Legal Reasoning
Petitioner was being constrained to approach this Court in W.P(C) No.10374 of 2011 assailing the maintainability of the proceeding before the MSEFC. However, the said Writ Petition was disposed of vide order dated 12.05.2011 directing the Petitioner to move before the MSEFC, who would decide the question of maintainability. In view of the such observation made by this Court in W.P.(C) No.10374 of 2011, the Petitioner approached the Council and filed a preliminary objection under Section-16 of the Arbitration & Conciliation Act, 1996 on various grounds urging before the Council that it has no jurisdiction to adjudicate the dispute. Such a petition being filed, the Council, without hearing the same, verbally opined that the question of jurisdiction would only be gone into at the stage of final order and directed for filing of the written statement. The issue that neither of the parties was amenable to the jurisdiction of the Council, i.e. one being within W.P.(C) No.16423 of 2014 Page 6 of 24 the jurisdiction of the West Bengal and the other of Madhya Pradesh, also was not considered by the Council and was of no consequence to it. On the said date, the learned counsel for the Petitioner as well as the representative of the Petitioner- Company appeared before the MSEFC and sought for an order on the ground of jurisdiction upon the application filed by it under Section 16 of the 1996 Act filed before the Council. The Council, contrary to the observation made by this Court in W.P(C) No.10374 of 2011, stated that it shall not pass any order as to the issue of jurisdiction and issued illegal ultimatum to the Petitioner to file its written statement in the matter at the cost of allowing the claims of the Opposite Party No.3. The Petitioner categorically urged before the MSEFC that it could not file its written statement in view of the lack of jurisdiction of the Council to adjudicate the dispute and also in view of the settled principle of law that an objection to jurisdiction cannot be taken after filing of written statement. 7. It is further stand of the Petitioner that law is well settled that claim and counter claim of the parties shall be adjudicated in one forum which cannot be bifurcated to different forums. As the Petitioner is a large scale industry, it has no scope to raise its claim for adjudication along with the claims of the Respondent W.P.(C) No.16423 of 2014 Page 7 of 24 before MSEFC. The claims of the Respondent before the Council give rise to the right of the Petitioner to lodge its claim. Accordingly, a request was made to the MSEFC to refer the claims of both the parties to an independent Arbitrator so as to enable the Petitioner to lodge its claim/counter claim so that both the claims and counter claims shall be adjudicated in one forum. But the MSEFC prolonged the said prayer of the Petitioner till the date of filing of the present Writ Petition. On the persistent plea of the Petitioner, the MSEFC referred the dispute to the General Manager, District Industries Centre, Rourkela, for conciliation. In the conciliation proceeding, when the Petitioner tried to put forth its claim, the Opposite Party No.3 refused to acknowledge the same and insisted for delayed payment and not the claims of the Petitioner-Company. However, due to the obstinacy of the Opposite Party No.3, the conciliation proceeding failed and a failure report was submitted by the Conciliator on 07.02.2014. The Petitioner, having no other alternative, approached the competent authority i.e. Chairman-Cum-Managing Director of the Company, as per the contract to appoint the Arbitrator to adjudicate the disputes between the parties being competent under the contract as well as 1996 Act by himself and/or refer the dispute to the Arbitrator appointed by him. On being so W.P.(C) No.16423 of 2014 Page 8 of 24 approached, the Chairman-Cum-Managing Director of the Company constituted an Arbitral Tribunal. Being noticed, the Opposite Party No.3 participated in the arbitration proceedings, which is also being held in Malanjkhand. When the matter stood thus, all of a sudden, without any application or any hearing or even the matter being heard by the MSEFC, the Director of Industries, who is also the Chairman of the MSEFC, issued a letter dated 01.08.2014 to the Petitioner-Company declaring the ongoing arbitration proceeding in Malanjkhand, District Balaghat, to be illegal. The Petitioner was surprised to get such a communication as it is not known how the MSEFC and/or its Chairman became aware of the proceedings at Malanjkhand and/or how they assumed jurisdiction to adjudicate on the legality of the said proceeding and at whose behest such communication was made to the Petitioner and such an order has been passed without any reference to the Petitioner. 8. It is further case of the Petitioner that against such communication dated 03.01.2014, to terminate the arbitration proceeding between the parties in Malanjkhand, Madhya Pradesh, the Opposite Party No.3-company moved before the District Judge, Cuttack, in ARBP No.72 of 2014, which is still pending adjudication. In the said application, the self same relief was W.P.(C) No.16423 of 2014 Page 9 of 24 prayed for and the District Judge has already given a prima facie finding vide order dated 16.05.2014 that the proceedings before it were without jurisdiction. When the Opposite Party No.3- Company could not get the relief from the Court below, the Director of Industries has now come to the aid of the Opposite Party No.3 by misusing his official capacity and issued the said illegal letter to the Petitioner dated 01.08.2014, which has been impugned in the present Writ Petition. 9. On being noticed, the Opposite Party No.3 i.e. M/s. Utkal Moulders, has filed a detailed counter affidavit. Regarding the
Decision
maintainability of the writ petition, a stand has been taken therein that the petitioner has concealed the material facts deliberately from this Hon’ble court which has a material bearing on the facts and result of the present writ petition. It has also been stated that the petitioner has not approached this Court with clean hands as he has taken the recourse of forum haunting which is not at all permissible. Before approaching this Court the petitioner has already approached the Court of District Judge, Cuttack for the self same relief. But the same had not been brought to the knowledge of this Court. The said petition was filed prior to the filing of the present writ petition and is still pending for disposal. It has also been stated that the petitioner has failed to avail W.P.(C) No.16423 of 2014 Page 10 of 24 alternative remedy which it should have availed before approaching this Court. 10. Apart from the above noted maitainability points, in the counter affidavit it has been stated that there has been relationship of supplier and buyer between Opposite party No.3 which is a small scale industry and the petitioner which is a large public sector Govt. of India enterprise. The Petitioner company requires caste iron alloyed grinding media balls for its concentration plant at Malanjkhand(M.P) for milling the ore for which tenders were invited from various suppliers for supplying the goods. The opposite party No.3 participated in the said tender and being found eligible, orders were placed from time to time. The opposite party became entitled to claim interest in respect of the supplies made against 8 purchase orders for making payment beyond the agreed dates under the Interest on Delayed Payments To Small Scale and Ancillary Industrial Undertakings Act,1993, in short IDP Act,1993. Therefore, the Opposite party No.3 filed its claim of interest before Industrial Facilitation Council shortly, IFC under the IDP Act,1993. However, the IDP Act,1993 was replaced by the new Act i.e. The Micro, Small and Medium Enterprise Development Act, 2006, in short MSMED Act,2006 w.e.f. W.P.(C) No.16423 of 2014 Page 11 of 24 02.10.2006 and the claim of interest filed under IDP Act,1993 were taken up for adjudication under MSMED Act, 2006. 11. The Opposite Party No.3 supplied materials in terms of the purchase order in time but payment was not made in agreed time for which the Opposite Party No.3 gave a notice on 22.09.2004 to the petitioner claiming interest and filed a claim before IFC on 02.11.2004 under IDP Act which was registered as IFC Case No. 7 of 2005. Thereafter, the Opposite party No.3 was asked to re-submit its claim under MSMED Act by MSEFC vide letter dated 08.09.2010 and accordingly, the Opposite party No.3 submitted its claim under MSMED Act on 25.09.2010. The claim was numbered as MSEFC Case No. 15 of 2010. 12. It has further been stated that, the petitioner placed three purchase orders which were completed. But due to delayed payment, the Opposite party No.3 gave a notice to the petitioner for claiming interest on 26.08.2004 and subsequently filed its claim before IFC on 21.09.2004 under IDP Act, 1993 in IFC Case No. 9 of 2005. After re-submitting his claim under MSMED Act it was renumbered as MSEFC Case No. 16 of 2010. The Opposite Party No.3 completed another two orders in time, but due to delay in payments the Opposite party No.3 gave a notice to the W.P.(C) No.16423 of 2014 Page 12 of 24 petitioner on 06.03.2006 claiming interest and filed its claim before IFC on 28.03.2006 under IDP Act which was renumbered under MSMED Act as MSEFC Case No.13 of 11. 13. The Opposite Party No.3 filed another case before MSEFC i.e. MSEFC Case No. 3 0f 2011, for recovery of interest due to late payment pertaining to two purchase orders in which notice was issued by MSEFC to the Petitioner to file written statement within 15 days. The petitioner preferred W.P(C) No. 10374 of 2011 challenging the jurisdiction of MSEFC bearing all the cases going on before MSEFC for claim of interest under IDP Act, 1993 and under MSMED Act, 2006 and the same was disposed of by the Division Bench of this Court on 12.05.2011. Thereafter, the petitioner filed a preliminary objection raising all the issues relating to jurisdiction before the MSEFC on 17.10.2011, 12.09.2011 and 09.12.2011 in respect of all the cases as per the direction of this Court. 14. The MSEFC, after issuing notices to both parties, heard the matter in its meeting held on 15.03.2012. After considering all preliminary objections of the petitioner, in its meeting held on 09.04.2012, the MSEFC passed an order on 09.04.2012 rejecting the preliminary objection filed by the present petitioner and also ordered to make an amicable settlement with the Opposite Party W.P.(C) No.16423 of 2014 Page 13 of 24 No.3. The said order dtd. 09.04.2012 was passed in all the four cases. The petitioner challenged the said order as to the jurisdiction of MSEFC by filing 4 separate ARBP petitions No. 82 of 2012, 83 of 2012, 84 of 2012 and 85 of 2012 before the District, Judge, Cuttack on 04.05.2012. Still then the petitioner claimed before the Council and submitted in its meeting held on 04.06.2013 that, it has not received the order of the Council. However, the Council further passed an order dated 09.11.2013 for amicable settlement and conciliation. The petitioner attended the conciliation meeting through its representatives. The conciliation meeting was held on 27.11.2013 in which the Opposite Party No.3 offered 5% discount on the amount payable to it under IDP Act/ MSMED Act. The petitioner did not make any counter offer and tone and tenor of their representatives was not of conciliation and amicable settlement. The representatives of the petitioner also threatened the Opposite Party No.3 that they would start several cases against the Opposite Party No.3 to create pressure for withdrawal of claims before MSEFC which was also mentioned on record before Chairman, MSEFC, Cuttack, Orissa vide letter dated 28.11.2013. In the next conciliation meeting, which was held on 07.02.2014 before Conciliator, General Manager of DIC, Rourkela, W.P.(C) No.16423 of 2014 Page 14 of 24 the petitioner offered only simple interest for delayed period, but not interest as payable under IDP Act/ MSMED Act. Therefore, the conciliation was rejected by the Opposite Party No.3 and the failure of conciliation was also communicated to Chairman, MSEFC, with a request to proceed for arbitral proceedings. 15. It is the stand of Opposite Party No.3 that, meanwhile the petitioner, without waiting for the conciliation meeting to be held on 07.02.2014, appointed its own sole arbitrator, Sri S.S.Patil (DGM, Concentration) vide its letter dated 03.01.2014 without any dispute in hand. The Petitioner never gave any notice, as required under Section 21 of Arbitration Act, 1996, to Opposite Party No.3 communicating any dispute or the nature of dispute. Thus, the appointment of arbitrator is non est in law. It is further stand of Opposite Party No.3 that, the appointment of sole arbitrator, Sri.S.S. Patil by the petitioner is completely and hopelessly barred by limitation.The supplies were completed in the years 1991-1992 and 2000-2004 and never ever there was any dispute except the dispute for payment of interest on delayed payments for supplies made beyond the appointed day. It has also been stated that the parallel arbitral proceedings started by the petitioner are illegal and against the law of the land. It has been averred by the Opposite party No.3 that, in view of W.P.(C) No.16423 of 2014 Page 15 of 24 overriding provisions of special statue, the proceedings under IDP Act/ MSMED Act will prevail in derogation to the contractual clause of arbitration provided in the purchase order. It has also been stated in the Counter that the issue has already been decided by the Hon’ble Supreme Court in the matter of Modern Industries, Rourkela Vs. Steel Authority India Ltd. & others. 16. In response to the counter affidavit, a rejoinder affidavit has been filed by the petitioner enclosing thereto voluminous documents not only to oppose the stand of Opposite party but also to justify the prayer made in the writ petition. It has been stated therein that, as there is no evidence to support the allegations made in counter affidavit, such allegations are false, misleading and out of context. Submissions made in counter affidavit containing allegations against the petitioner such as fraud, forum haunting, concealment of facts and applicability of new IDP Act nowhere deal with the validity of the latter dated 01.08.2014 which is the sole point of contention involved in this writ petition. Thus, the said letter should be quashed. It has also been stated by the petitioner that, MSME Act does not provide the power and jurisdiction to the Opposite party No.3 to declare appointment of an Arbitrator of an ongoing arbitration proceeding as illegal. W.P.(C) No.16423 of 2014 Page 16 of 24 17. It has also been disclosed in the rejoinder affidavit that, the opposite party No.3 had challenged the appointment of arbitrator before the District Judge, Cuttack, in ARBP No. 72/2014 and the interim prayer of the Opposite Party No.3 was to stay the proceeding before sole arbitrator, which was rejected vide letter dated 03.01.2014 and the ARBP No. 72/2014 was dismissed by the District Judge, Cuttack, vide order dated 09.03.2015. The Opposite Paarty No.3 challenged the said order dated 09.03.2015 before this Court in ARBA No. 13 of 2015 and the same was also dismissed vide order dated 27.09.2019. Further, the Opposite Party No.3 approached the Supreme Court in SLP(C) No.2019 of 2020 in which notice was issued and the petitioner also appeared and filed its reply. As the matter is pending before the Hon’ble Supreme Court, the impugned letter dated 01.08.2014 issued by the Opposite Party 2 declaring the appointment of the sole arbitrator as bad amounts to overreaching the proceedings before the Supreme Court and deserves to be quashed. It has also been stated that the Opposite Party No.3 also participated in the arbitration proceeding before the sole arbitrator and filed defence statement therein. Therefore, any contest to the jurisdiction of the arbitrator pursuant to such submissions is not permissible as per the requirements of the Act, 1996. W.P.(C) No.16423 of 2014 Page 17 of 24 18. It has also been stated in the Rejoidner that the Opposite Party No.3 has averred in the counter affidavit that, in the writ petition, the petitioner challenged the letter dated 01.08.2014 issued by Opposite Party No.2 during the pendency of an arbitration proceeding before the Ld. Sole arbitrator, where as the Petitioner challenged the jurisdiction of MSEFC to entertain the claim of the Opposite Party No.3, both the reliefs being drastically different as well as erroneous and out of context, liable to be quashed. 19. In reply to the allegation made by the Opposite Party No.3 in its counter affidavit that, the petitioner did not avail alternative remedy available to him before approaching the writ court, it has been stated that, the Opposite Party No.3 failed to mention specifically which alternative remedy was available, but not availed by the petitioner. It has further been stated by the petitioner that, the Opposite Party No.3 nowhere disclosed the underlying dispute between the parties that is subject to arbitration before the Sole Arbitrator arose due to Opposite Party No.3’s failure to supply cast iron balls of 80mm diameter to the petitioner within the contractually agreed time due to which the petitioner sustained huge losses. It is the stand of the petitioner that the allegation of Opposite Party No.3 regarding delayed W.P.(C) No.16423 of 2014 Page 18 of 24 payment is that the payments were released only after due inspection of the goods that were delivered. It has also been mentioned by the petitioner in the rejoinder affidavit that, the petitioner was neither informed about a meeting to be held on 15.03.2012 nor was any notice regarding the same issued to it. It is the case of the petitioner that, the issuance of the impugned letter dated 01.08.2014 was clearly in violation of direction of District Court as well as this Court. So also submissions were made by the Opposite party No.3 in counter affidavit are frivolous and should not be entertained by this Court. 20. Mr. Mukherji, learned Senior Counsel for the Petitioner submitted that the coordinate Bench while issuing notice to the Opposite Parties, vide order dated 25.11.2014 passed in I.A. No.14485 of 2014, stayed the operation of the impugned order as at Annexure-9. The Opposite Party No.3, not only appeared before the sole Arbitrator but also filed an application on 08.08.2014 under Section 16 of the Arbitration and Conciliation Act, 1996 challenging the jurisdiction of the sole Arbitrator. The said objection filed by the Opposite Party No.3 was rejected by the sole Arbitrator vide order dated 08.08.2014. Thereafter, the Opposite Party No.3 moved before the District Judge, Cuttack, by filing an application under Section 9(ii)(e) and W.P.(C) No.16423 of 2014 Page 19 of 24 Section 42 of the Act, 1996 read with Section 18 of the MSMED Act, 2006 to declare the appointment of the sole Arbitrator made by the Petitioner, vide its letter dated 03.01.2014 as null and void and to stay operation of the said letter and pass an interim order prohibiting the sole Arbitrator from proceeding with the Arbitration with other consequential benefits. The same was rejected vide order dated 09.03.2015. The said order passed by the District Judge, Cuttack, on 09.03.2015 in ARBP No.72 of 2014 was challenged before this Court on 13.04.2015 in ARBA No.13 of 2015 which was ultimately dismissed on 27.09.2019 with an observation that it is open for the present Opposite Party No.3 (Appellant in ARBA No.13 of 2015) to take resort to the provision under Section 17 of the Arbitration and Conciliation Act, 1996. 21. Mr. Mukherji further submitted that the said order dated 27.09.2019 passed in ARBA No.13 of 2015 was challenged by the Opposite Party No.3 before the apex Court, which was registered as SLP (C) No.20196 of 2020. However, vide order dated 07.08.2023, the SLP was also dismissed. Mr. Mukherji further submitted that the said issue as to appointment of sole Arbitrator by his client has attained finality after dismissal of the SLP. W.P.(C) No.16423 of 2014 Page 20 of 24 Due to the stay order passed by this Court in the present Writ Petition, the Arbitrator appointed by his client proceeded on merit and the parties to the said Arbitration Proceeding i.e. the present Opposite Party No. 3 so also the Petitioner participated in the said proceeding. He further submitted that despite challenging the initiation of Arbitration Proceeding at the instance of the Petitioner-Company, the Opposite Party No.3 participated in the Arbitration Proceeding before the sole Arbitrator and the parties thereto filed their respective pleadings. However, at the stage of cross-examination of the witnesses, the Arbitration proceeding got stalled due to retirement of the learned Arbitrator in the year 2017.Hence, the impugned communication as at Annexure-9 deserves to be set aside. 22. In response to the said submission made by Mr. Mukharji, learned Senior Counsel, Mr. Mishra learned Senior Counsel, who represents Opposite Party No.3, submitted that after retirement of the sole Arbitrator, who was an officer of the Petitioner-Company, was given extension by way of contractual appointment. Thereafter, on completion of contractual appointment period, one Mr. Bikash Mishra, Advocate has been appointed as the sole Arbitrator by the Petitioner-Company, who noticed the Petitioner as well as the Opposite Party No.3 W.P.(C) No.16423 of 2014 Page 21 of 24 intimating both the parties to remain present on the date fixed i.e. on 27.01.2024 either physically or virtually. Mr. Mishra further submitted that on being so noticed, his client i.e. present Opposite Party No.3, wrote a letter to the Sole Arbitrator on 20.01.2024 and it was sent through mail indicating therein that the appointment of the sole Arbitrator by the Chairman-cum- Managing Director of the Petitioner-Company and fixing of hearing date is not agreeable as the same is contrary to the provisions of the amended Arbitration and Conciliation Act and various judgments of the Apex Court. Mr. Mishra, learned Senior Counsel further submitted that vide the said letter dated 20.01.2024, the learned Arbitrator was intimated that his client will not be in a position to participate in the proceeding fixed to 27.01.2024, vide which a request was made to the learned Arbitrator to defer the proceeding for a further period of four weeks. Mr. Mishra relying on the judgments of the apex Court reported in (2020) 20 SCC 760 (Perkins Eastman Architects DPC an Another Vs. HSCC (India) Limited), (2023) 6 SCC 401 (Gujarat State Civil Supplies Corporation Ltd. Vs. Mahakali foods Private Limited and another), judgment of the Kerala High Court reported in AIR ONLINE 2023 KER 512 (Shreyas Marketing Vs. Micro & Small Enterprises Facilitation Council) W.P.(C) No.16423 of 2014 Page 22 of 24 and drawing attention of this Court to the communication dated 20.01.2024 made by his client to the sole Arbitrator, which was filed along with a memo on 24.01.2024, submitted that since the Arbitration proceeding at the instance of the present Petitioner is going on, wherein his client has rightly raised the issue regarding legality of appointment of Arbitrator made by the Petitioner- Company contrary to the provisions of amended Arbitration and Conciliation Act, 1996 so also contrary to the settled position of law, he has no objection if the impugned communication made by the Committee dated 01.08.2014, as at Annexure-9, is set aside giving liberty to his client to challenge the appointment of the new Arbitrator as the sole Arbitrator by the Chairman-cum- Managing Director of the Petitioner-Company at appropriate stage before appropriate forum. 23. In view of the submissions made by the learned Counsel for the Parties so also the background facts as detailed above, this Court is inclined to set aside the impugned communication dated 01.08.2014, as at Annexure-9, made by the Director of Industries- cum-Chairman, MSEFC, Odisha. Accordingly, the said communication dated 01.08.2014 is hereby set aside. W.P.(C) No.16423 of 2014 Page 23 of 24 Needless to mention here that since the Arbitration Proceeding at the instance of the Petitioner-Company in terms of the contract between it and Opposite Party No.03 is on and both the parties to the said Arbitration proceeding have participated before the sole Arbitrator and present Opposite Party No.3 has raised the issue regarding competency of the sole Arbitrator newly appointed by the Petitioner-Company, the parties to the present lis may approach the appropriate forum at appropriate stage in accordance with law, if so advised. 24. Accordingly, the Writ Petition stands allowed and disposed of. No order as to cost. ….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 28th February 2024/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Feb-2024 17:53:28 W.P.(C) No.16423 of 2014 Page 24 of 24