Dismissed

Union of India v. M/S. Nilloy Newsun Technology Pvt. Ltd.

Rajasthan HC6 Aug 2021CMA/2112/2019

Case brief

AI extract

What is this about?

This appeal, filed under Order XLIII, Rule 1 CPC, challenging an award by the Rajasthan Micro and Small Enterprises Facilitation Council under Section 18 of the MSMED Act, 2006, was dismissed as not maintainable. The court held that such orders are awards requiring challenge only under Section 34 of the Arbitration and Conciliation Act, 1996.

What did the court decide?

The appeal is dismissed as not maintainable as it pertains to an award challengeable only under Section 34 of the Arbitration and Conciliation Act, 1996.

Union of India Vs M/S. Nilloy Newsun… — Pension and Retirement Benefits | Rajasthan HC (2021)

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(1 of 3)

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[CMA-2112/2019]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 2112/2019

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Union Of India, Through Head Quarter Commander Works Engineer, Jodhpur.

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Garrison Engineer, Air Force Station, Jaisalmer.

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----Appellants

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Versus

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Nilloy Newsun Technology Pvt. Ltd., Shridham, 3Rd Floor, R-20 Yudhishtir Marg, C-Scheme, Jaipur.

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----Respondent

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For Appellant(s) : Mr. Mukesh Rajpurohit, ASG with Mr. Navneet Singh Birkh. Mr. Rajendra Katariya. For Respondent(s) : Mr. Manoj Bhandari. Mr. Mehul Kothari.

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HON'BLE MR. JUSTICE ARUN BHANSALI Judgment

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06/08/2021

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This appeal purportedly under Order XLIII, Rule 1 CPC has been filed against the orders dated 16.02.2017 & 28.06.2017 passed by the Rajasthan Micro and Small Enterprises Facilitation Council, Jaipur ('the Council'), whereby an order has been passed under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 ('the Act') for making payment of a sum of Rs. 13,01,781/-, which order has been amended by order dated 28.06.2017 and it has been ordered that payment of Rs. 32,12,138/- be made.

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The appeal has been filed before this Court on 10.01.2019 and the office has pointed out that the same is barred by 471 days. Alongwith the appeal, an application under Section 5 of the Limitation Act, 1963 has been filed.

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(2 of 3) [CMA-2112/2019]

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Notice of application under Section 5 of the Limitation Act was issued to the respondents on 13.02.2020.

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Response to the application has been filed. Before appearance of the respondent, a second stay petition was filed, on which, a Co-ordinate Bench of this Court by order dated 08.04.2021 stayed the effect & operation of the order dated 18.02.2021 passed by the Commercial Court, Jodhpur in Execution case No.664/2020, filed seeking execution of the impugned orders.

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Learned counsel for the respondent besides making submissions on the application under Section 5 of the Limitation Act submitted that the appeal itself is not maintainable before this Court and as such, the same deserves to be dismissed.

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It is submitted that the Council has passed the order under Section 18 of the Act with reference to provisions of Section 16 of the Act regarding payment of interest. Sub-section (3) of Section 18 makes provisions of Arbitration and Conciliation Act, 1996 ('Act of 1996') applicable to the disputes before the Council and as the orders impugned are awards passed by the Council, under Section 19 of the Act proceedings can be instituted before the competent court.

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It is submitted that under Section 34 of the Act of 1996, the proceedings would lie before the Principal Civil Court or competent Commercial Court. The appeal filed purportedly under Order XLIII CPC, is not maintainable and as such, the same deserves to be dismissed.

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Learned counsel for the appellants made submissions that based on the advise of the then counsel representing the appellant, the present appeal has been filed and that looking to

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(3 of 3)

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[CMA-2112/2019]

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the huge amount involved, the appellants may be granted indulgence.

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I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

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It is not in dispute that the order dated 16.02.2017 and modification order dated 28.06.2017 are in the nature of awards as the proceedings under Section 18(3) of the Act are required to be conducted before the Council, under the Arbitration Act. Once the orders passed are in the nature of award, the only provision whereby an award could be challenged is under Section 34 of the Act of 1996 by filing application for setting aside of the award.

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In these circumstances, filing of the present appeal before this Court that also purportedly under Order XLIII, Rule 1 CPC is wholly misconceived and as such, the appeal cannot be entertained.

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In view thereof, the appeal is dismissed as not maintainable. The appellant would be free to take appropriate proceedings before appropriate forum in accordance with law.

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(ARUN BHANSALI),J

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33-Rmathur/-

Union of India v. M/S. Nilloy Newsun Technology Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Union of India v. M/S. Nilloy Newsun Technology Pvt. Ltd.

Case brief

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