The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 25-Jul-2024 19:53:49 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 17259 OF 2024 Executive Engineer, Electrical Stores Division, TPSODL, Berhampur, Ganjam and others …. Petitioners Mr. Durga Prasad Nanda, Senior Advocate being assisted by Mr. Rupesh Kumar Kanungo, Advocate -versus- The Chairman, Director of Industries, M.S.E.F.C., Directorate of Odisha, Cuttack and others …. Opp. Parties Mr. Gouri Mohan Rath, Advocate (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 24.07.2024 1. 1. This matter is taken up through hybrid mode. 2. Appearance memo of Mr. Durga Prasad Nanda, learned Senior Advocate filed in Court is taken on record. 2.1 Mr. Gouri Mohan Rath, learned counsel enters appearance on behalf of Opposite Party No.2 by filing Vakalatnama in Court, which is taken on record. 3. Order dated 6th July, 2024 (Annexure-2) passed in I.A. No.5 of 2024 (arising out of E.P. Case No.5 of 2024) is under challenge in this writ petition, whereby learned Senior Civil Judge, Commercial Court, Berhampur, Ganjam rejected an application filed by the Petitioners under Section 47 C.P.C. 4. Shorn of the unnecessary details, the Opposite Party No.2, namely, M/s United Electricals and Engineering Private Limited, made a reference to the MSEF Council (for short ‘Council’) claiming an amount of Rs.83,76,558.03 along with interest, which was registered as MSEFC Case No.12 of 2017 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 25-Jul-2024 19:53:49 under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘MSMED Act’). The Petitioners filed written objection to the claim petition. An award was passed on 11th May, 2018 in MSEFC Case No.12 of 2017. Assailing the same, the Petitioners preferred W.P.(C) No. 21182 of 2018 before this Court, which was disposed of on 16th September, 2019 granting liberty to the Petitioners to file appeal under Section 19 of the MSMED Act read with Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘Arbitration Act’). The Petitioners being not satisfied preferred Writ Appeal No.501 of 2019, which was disposed of on 6th February, 2020 extending time to prefer appeal under Section 19 of the MSMED Act. Still not satisfied, the Petitioners preferred SLP(C) No. 16034 of 2020 before Hon’ble Supreme Court, which was dismissed vide order dated 26th February, 2021. Thereafter, the Petitioners filed an appeal under Section 19 of the MSMED Act in CMA No.17 of 2021 along with an application under Sections 5 and 14 of the Limitation Act. Said appeal was dismissed on the ground of limitation vide order dated 3rd March, 2022. Assailing the same, the Petitioners filed ARBA No.11 of 2022 before this Court under Section 37 of the Arbitration Act. Said appeal was dismissed vide order dated 20th November, 2023. Assailing the said order, Petitioners preferred SLP (C) No.7494 of 2024, which is pending for adjudication. In the meantime, the Opposite Party No.2 initiated Execution Case No. 5 of 2024, which is pending before learned Senior Civil Judge, Commercial Court, Berhampur, Ganjam. The Petitioners on appearance filed an application under Section 47 C.P.C. assailing the executability of the decree/award passed in MSEFC Case No.12 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 25-Jul-2024 19:53:49 of 2017. Said application was rejected vide order dated 6th July, 2024. Hence, this writ petition has been filed. 5. Mr. Nanda, learned Senior Advocate appearing for the Petitioners submits that mandatory provision under Sections 18(2) and 18(3) of the MSMED Act has not been followed by the Council in passing the award. Hence, award passed by the Council is a nullity and is not available to be executed. He further submits that although detail grounds challenging the executability of the decree/award were stated in the petition under Section 47 C.P.C., but learned Executing Court without taking note of the same passed a cryptic order under Annexure-2 dismissing the petition under Section 47 C.P.C. holding that the Petitioners appear to be hell-bent in protracting the proceeding to deprive the Opposite Party No.2 from enjoying the fruits of the decree. He, therefore, submits that the impugned order under Annexure-2 being a cryptic and unreasonable one is not sustainable and is liable to be set aside. 6. Mr. Rath, learned counsel appearing for the contesting Opposite Party No.2 vehemently objects to the same and contends that the grounds taken in the petition under Section 47 C.P.C. could have been raised either in the appeal under Section 19 of the MSMED Act or under Section 37 of the Arbitration Act pending before learned District Judge, Ganjam at Berhampur. The same is not available to be raised in an execution proceeding as the Court cannot go behind the award, which is a deemed decree. Award was passed in the year, 2017 and the Petitioners are protracting the litigation till date and depriving the Opposite Party No.2 from enjoying the fruits of the decree/award as rightly observed by learned Executing Court. Page 3 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 25-Jul-2024 19:53:49 Although reason has not been stated in too many words in the impugned order, but it is contended that the petition under Section 47 C.P.C. is not maintainable and the Petitioners are unnecessarily protracting the litigation and depriving the Opposite Party No.2 from enjoying the fruits of the decree. He further submits that in appeal, the Petitioners have also filed an application for stay of the execution proceeding. Although objection to the said petition has already been filed by the Opposite Party No.2, but without participating in the hearing of the petition for stay of the execution proceeding before learned Appellate Court, the Petitioners have filed this writ petition challenging the impugned order under Annexure-2. As such, the Petitioners are not entitled to the equitable relief as claimed. He, therefore, prays for dismissal of the writ petition being devoid of any merit. 7. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, more particularly the impugned order under Annexure-2, it appears that learned Executing Court discussing the chronology of the events and the case of the parties straightway jumped to the conclusion that the Petitioners are hell-bent in protracting the litigation and depriving the Opposite Party No.2 from enjoying the fruits of the decree. Although it is observed by learned Executing Court that the matter has attained its finality, but the same appears to be pending before the Hon’ble Supreme Court. It is, however, submitted by Mr. Rath, learned counsel for Opposite Party No.2 that the said fact was not brought to the notice of learned Executing Court. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 25-Jul-2024 19:53:49 8. When an application under Section 47 C.P.C. is filed, learned Executing Court is under legal obligation to deal with the contention raised in the said petition on merit vis-(cid:224)-vis the objection raised to the said petition and pass a reasoned order. In the instant case, it appears that no reason has been assigned by learned Executing Court in dismissing the petition under Section 47 C.P.C. Accordingly, the impugned order under Annexure-2 being not sustainable is set aside. 9. The writ petition is allowed to the aforesaid extent with a direction that learned Senior Civil Judge, Commercial Court, Berhampur, Ganjam shall do well to consider the petition under Section 47 C.P.C. afresh giving opportunity of hearing to the parties concerned. 10. Since the claim of Opposite Party No.2 is of the year, 2017, steps shall be taken for expeditious adjudication of I.A. No.5 of 2024 (arising out of E.P. Case No.5 of 2024) in accordance with law, giving opportunity of hearing to the parties concerned. 11. It is made clear that this Court has not expressed any opinion on the merits of the case of either of the parties. Urgent certified copy of this order be granted on proper application. s.s.satpathy (K.R. Mohapatra) Judge Page 5 of 5