Partly allowed

Abdulla Haji v. the Kerala Micro and Small Enterprises

Kerala HC1 Nov 2021WP(C)/8817/2010

Case brief

AI extract

What is this about?

High Court of Kerala disposed connected writ petitions and original petition regarding MSME Act awards. Court held writs not maintainable against Sec 18(5) awards, extended stay, set aside execution order remanding to lower court, and affirmed limitation exclusion.

What did the court decide?

Stay extended. Appeal filed within 2 months. Ext.P5 set aside; execution court to reconsider. Time excluded for limitation.

Abdulla Haji Vs the Kerala Micro and Small Enterprises — Execution and Attachment | Kerala HC (2021)

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 1^ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943

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WP(C) NO. 26713 OF 2008

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PETITIONER/S:

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ABDULLA HAJI, AGD 58 YEARS, C/O M/S MAHIMA ENTERPRISES, PALAKUNNU P.O. BEKAL P.O., KASARAGOD

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BY ADV SRI.T.K.VIPINDAS

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RESPONDENT/S:

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1 THE KERALA MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, THIRUVANANTHAPURAM

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2 M/S. EVERSHINE INDUSTRIES KAITHERIPOYIL P.O., PATHIRIYODU, KANNUR DISTRICT.

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BY ADV SRI.R.SUDHIR, R2 SMT.RASHMI K.M., SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2021, ALONG WITH OP(C).2586/2011, 8817/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1^ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943

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WP(C) NO. 8817 OF 2010

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PETITIONER/S:

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ABDULLA HAJI,AGED 58 YEARS C/O.M/S.MAHIMA ENTERPRISES,, PALAKUNNU P.O., BEKAL P.O.,, KASARAGOD.

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BY ADV SMT.P.K.PRIYA

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RESPONDENT/S:

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1 THE KERALA MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, THIRUVANANTHAPURAM.

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2 MS.EVERSHINE INDUSTRIES KAITHERIPOYIL P.O., PATHIRIYODU,, KANNUR DISTRICT.

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ADD.R3 SUNSHINE PLASTICS, KAITHERIPOYIL, POST PATHIRIYAD, KANNUR DISTRICT REP.BY ITS MANAGING PARTNER, N ARAVINDAKSHAN, S/O C.M.RAMAN, AGED 50 YEARS, PRASANTHI, P.O.PATHIRIYAD, KANNUR DISTRICT.

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ADDL.R3 IS IMPLEADED AS PER ORDER DT.25.10.11 IN IA 16862/11

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BY ADVS. SRI.R.SUDHIR

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SRI.SANTHEEP ANKARATH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2021, ALONG WITH WP(C).26713/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 1^ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943

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OP(C) NO. 2586 OF 2011

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AGAINST THE ORDER/JUDGMENT IN OA 1/07/MSEFC PASSED BY DISTRICT

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COURT, KASARGOD

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PETITIONER/S:

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M/S.SUNSHINE PLASTICS POST-PATHRIYAD, KANNUR DISTRICT,REP.BY ITS, MANAGING PARTNER,N.ARAVINDAKSHAN,S/O.C.M.RAMAN,, AGED 50 YEARS,'PRASANTHI,PO PATHIRIYAD,, KANNUR DISTRICT.

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BY ADVS. SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR

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RESPONDENT/S:

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M/S.MAHIMA ENTERPRISES POST BEKAL,KASARGOD DISTRICT,REP.BY ITS MANAGING, PARTNER K.ABDULLA HAJI,S/O.ABDUL RAHIMAN,, MUDIYAKKAL PALLIKERE VILLAGE,PO PALLIKERE-671316,, HOSDURG TALUK,KASARGOD DISTRICT.

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BY ADVS. SMT.P.K.PRIYA SRI.T.K.VIPINDAS SRI.K.V.SREE VINAYAKAN SRI.K.M.MUHAMMED HUSSAIN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2021, ALONG WITH WP(C).26713/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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P.V.KUNHIKRISHNAN, J

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W.P.(C.) Nos.26713 of 2008, 8817 of 2010 and OPC No. 2586 of 2011

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Dated this the 1^st day of November, 2021

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JUDGMENT

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The above two Writ Petitions and the Original petition (Civil) are connected and therefore, I am disposing of these three cases by a common judgment.

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First I will narrate the facts in W.P.(C.) No. 26713 of 2008 and W.P.(C.) No. 8817 of 2010. In both these cases, the impugned orders are award passed under Sec.18(3) of Micro, Small and Medium Enterprises Development Act, 2006 (for short 'Act 2006'). Admittedly, there is an alternative remedy to challenge an award passed under Sec.18(5) of the Act 2006 and there are certain procedures to be followed as per Sec.19 of the Act, 2006. When there is an alternative

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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remedy to challenge the award passed under Sec.18(5) of the Act 2006, no writ petition is maintainable, in the light of the decisions of this Court in Sajith Kumar M.S. v. State of Kerala [2019 (2) KHC 570] and KSRTC v. Union of India [2010 (1) KLT 65]. Therefore, the petitioner has to challenge the impugned award before the appropriate court as per the procedure prescribed in the Act, 2006. The petitioner can be given a breathing time to file such proceedings before the appropriate court and till then, the interim order can be extended for a short period.

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As far as O.P.(C.) No. 2586/2011 is concerned, it is an original petition filed challenging Ext.P5 order. The original petition is filed by the 3^rd respondent in W.P.(C.) No.8817/2010. The grievance of the petitioner is that the petitioner in the original petition hererin obtained the award from the Kerala Micro and Small Enterprises Facilitation Council against the respondent in this case. Ext.P1 award is Ext.P2 in W.P.(C.) No. 8817/2010. The petitioner in the original petition filed an execution petition before the

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 6

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District Court, Kasargod. The attachment was ordered in the execution proceedings. At that stage, W.P.(C.) No. 8817/2010 was filed challenging the very same award in which the sister concern of the petitioner is made as party. The petitioner was not made a party in the writ petition. This Court passed an interim stay in that writ petition. The judgment-debtor filed an application for lifting of the attachment, in the light of the stay granted by this Court. Even though the petitioner filed a detailed counter, without considering the same, the District Court lifted the attachment, as per Ext.P5 order. Aggrieved by the same, this original petition is filed.

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In the light of the fact that the petitioner in O.P.(C.) No. 2586/2011 is already impleaded in W.P.(C.) No. 8817/2010 and also in the light of the fact that this Court already allowed the petitioner in that writ petition to take appropriate steps to challenge the award before the appropriate court, I think Ext.P5 in O.P.(C.) No. 2586/2011 can be set aside and the matter can be remanded back to the court below for fresh consideration, in accordance to law.

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11 7

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Therefore, these three cases are disposed in the following manner :

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The petitioner in W.P.(C.) No. 26713/2008 and W.P.(C.) No.8817/2010 can challenge Ext.P2 awards produced in these two writ petitions by filing appeal before the appropriate court, within two months from the date of receipt of a copy of this judgment.

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If such an appeal is received by the competent court, the time during which this writ petition is pending before this Court, will be excluded for calculating the limitation period.

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The interim order of the stay of Ext.P2 awards in W.P.(C.) Nos. 26713/2008 and 8817/2010 are extended for a further period of two months from the date of receipt of a copy of this judgment, to facilitate the petitioner to approach the competent court.

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Ext.P5 in O.P.(C.) No. 2586/2011 is set aside and the execution court is directed to reconsider EA No.74/2010 in EP No. 14/2009 in OA No.1/2007 in

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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accordance to law, after giving opportunity of hearing to all parties concerned.

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SD/- P.V.KUNHIKRISHNAN JUDGE

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SKS

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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APPENDIX OF WP(C) 26713/2008

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PETITIONER EXHIBITS

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EXHIBIT P1

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THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.

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EXHIBIT P2

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THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 19-4-2008

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RESPONDENT EXHIBITS

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EXT.R2(A) TRUE COPY OF THE STATEMENT OF DEFENCE FILED ON BEHALF OF THE PETITIONER AGAINST EXT.P1 APPLICATION FILEDBY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT

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EXT.R2(B) TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT TO THE STATEMENT OF DEFENCE FILED BY THE PETITIONER.

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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APPENDIX OF WP(C) 8817/2010

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PETITIONER EXHIBITS

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EXHIBIT P1 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P2 THE TRUE COPY OF THE 1ST RESPONDENT DATED 19-4-2008 EXHIBIT P3 TRUE COPY OF THE ORDER IN WP(C)26713/2008 BEFORE THIS HON'BLE COURT.

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WP(C) Nos.26713/08, 8817/10 & OPC 2586/11

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APPENDIX OF OPC 2586/2011

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF AWARD DATED 19.4.2008 IN OA 1/07 OF MSEFC
EXHIBIT P2	TRUE COPY OF THE AFFIDAVIT AND PETITION IN EA NO.74/2010 IN EP NO 14/2009 DATED 17.10.2010 IN OA NO. 01/07/MSEFC FILED BY THE RESPONDENT BEFORE THE DISTRICT COURT, KASARGOD
EXHIBIT P3	TRUE COPY OF COUNTER TO EXT.P2 DATED 22.11.2010 FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, KASARGOD
EXHIBIT P4	TRUE COPY OF MEMORANDUM OF WRIT PETITION IN WPC NO. 8817/2010 WITHOUT EXHIBITS FILED BEFORE THIS HON'BLE COURT
EXHIBIT P5	TRUE COPY OF ORDER DATED 22.6.2011 IN EA NO. 74/2010 IN EPNO. 14/2009 IN OA NO.1/07/MSEFC PASSED BY DISTRICT COURT, KASARGOD.

Abdulla Haji v. the Kerala Micro and Small Enterprises

Case brief

What is this about?

What did the court decide?

Abdulla Haji v. the Kerala Micro and Small Enterprises

Case brief

What is this about?

What did the court decide?

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