Block Development Officer, Pampady Block, Anikkad P.O., Kottayam v. Abraham Kuriaokose and The Chairman, Micro and Small Enterprises Facilitation Council, Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 ``` ``` W.A. NO.830OF 2023 ``` ``` (AGAINST THE ORDER/JUDGMENTWP(C) 29212/2022 OF HIGH COURT OF KERALA) ``` ## **`APPELLANT/S:`** ``` THE BLOCK DEVELOPMENT OFFICER, PAMPADY BLOCK, ANIKKAD P.O., KOTTAYAM, PIN – 686 503 ``` ``` BY ADV GOVERNMENT PLEADER ``` ## **`RESPONDENT/S:`** ``` 1ABRAHAM KURIAKOSE, PROPRIETOR, M/S.ENERGYSOL, VADAVATHOOR, P.O., KOTTAYAM, PIN – 686 503 2THE CHAIRMAN, MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, KERALA, THIRUVANANTHAPURAM, PIN – 695 033 BY ADV ANIL SIVARAMAN – FOR R1 SPECIAL GOVERNMENT PLEADER, SMT.K.R.DEEPA ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 _W. A. No.830 / 2023_ ## JUDGMENT _(Dated: 2[nd] June, 2023)_ Basant Balaji, J The appellant has filed Writ Petition (C) No.29212 of 2022 for quashing the award dated 22.01.2022 in O.A. No.54 of 2020 on the files of the Micro and Small Enterprises Facilitation Council, Kerala Thiruvananthapuram (hereinafter referred to ‘MSEF Council’ for short). The parties are referred to as they appeared before the learned single Judge. The learned single Judge, by the impugned judgment dated 29.03.2023 held that the Writ Petition is not maintainable under the law, and accordingly dismissed the writ petition. Hence the appeal. 2. Brief facts necessary for the disposal of this Writ Appeal are as follows: - The petitioner was the respondent in O.A. No.54 of 2020 on the files of the MSEF Council. A tender was invited under 3 _W. A. No.830 / 2023_ the MPLADS (Member of Parliament Local Area Development Scheme), 2016-17, for the supply of LED High Mast Light system. The offer of the first respondent was accepted, and an agreement was executed on 28.02.2018. According to the first respondent, the work was completed on 12.07.2019, the Completion Certificate of Electrical Installation was issued on 13.07.2019, and the KSEB granted an electrical connection on 15.07.2019. The petitioner’s case is that several complaints have been received in the office regarding the work undertaken by the first respondent. The complaints referred to the poor quality of construction of the basement of the High Mast Light, which is dangerous to the life and property of the people in the locality. 3. The counsel for the first respondent contends that, after the installation of the High Mast Light, several requests were made to pay the amount under the contract. Still, the writ petitioner, for 4 _W. A. No.830 / 2023_ one reason or another, delayed the payment. Hence, they approached the MSEF Council under Sections 17, 18 and 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘the Act’) and Kerala Micro and Small Enterprises Facilitation Council Rules, 2019. The MSEF Council placed the matter for conciliation, and though both parties appeared, the conciliation failed, and the Council took the matter under Arbitration. 4. The writ petitioner did not file any written statement or contested the proceedings. The writ petitioner has raised a contention before the MSEF Council that the work done by the 1[st] respondent needs to be of better quality and there is a high chance of the High Mast Light falling. To assess the quality of work, the counsel sought a comprehensive report from the District Collector, Kottayam, and after the report was obtained, the case was taken up for arbitration. After hearing the parties, it was held that the 1[st] 5 _W. A. No.830 / 2023_ respondent is entitled to the claim raised under the agreement with interest. Therefore, the MSEF Council passed an award directing payment of an amount of Rs.3,47,800/- along with compound interest calculated, three times the bank rate notified by the Reserve Bank as provided under Section 16 of the Act from 22.10.2019 till the date of realisation of the award. 5. The learned single Judge, after going through the provisions of the Act, held that, under Section 18(3) of the Act, the remedy available to the writ petitioner is to challenge the award in terms of the provisions of the Arbitration and Conciliation Act 1996. The learned single Judge also relied on the decision of this Court in _Sajith Kumar v. State of Kerala [2019(2) KLT SN 44] (C.No.52) ,_ which is of the proposition that, having failed to challenge the award in terms of the Provision of the above Act, the aggrieved 6 _W. A. No.830 / 2023_ party cannot invoke Article 226 of the Constitution of India to challenge the award of the MSEF Council. 6. It is not in dispute that the unit of the 1[st] respondent is an MSME. The Act provides for the remedy for a unit under the MSME to approach the MSEF Council if any money is due to them under any increment of a contract with another party. The only contention raised by the counsel for the appellant is that the petitioners should have been given an opportunity to contest the proceedings before the council. It is not in dispute that the MSEF Council took the case on file in the year 2020, and notices were issued to the petitioner and the respondents to appear before the council for a hearing. The petitioner and the first respondent seemed to be pursuant to the notice, and the council conducted conciliation proceedings, which ultimately failed. The case was taken for arbitration on 09.02.2021, 24.04.2021, 28.07.2021, and 7 _W. A. No.830 / 2023_ 22.01.2022. On all these days, both the parties were present, and it was only after giving an opportunity to the writ petitioner and the 1[st] respondent that the award was passed. 7. The petitioner has not challenged the award under the Arbitration and Conciliation Act 1996, to date. The petitioner does not invoke the statutory remedy under Section 83 of the Act. The learned single Judge has held that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India when there is a statutory remedy under the Act itself. We fully concur with the judgment of the learned single Judge that the Writ Petition is not maintainable under the law as he has a statutory remedy under the Act. Having perused the record, we are of the considered view that the impugned judgment is substantially confirmed _viz_ on the principal amount to be payable. But the only modification by this 8 _W. A. No.830 / 2023_ Court is that, in place of 3 times the bank rate interest awarded by the Council, we substitute and direct the respondent to pay interest calculated at the rate of 6% from the date of award till repayment. Hence, we direct the appellant to deposit the principal amount of Rs.3,47,800/- within 4 weeks from today and the interest as directed above within 2 months from the date of receipt of the copy of the judgment. The Writ Appeal stands disposed of as indicated above. _Sd/-_ S.V.N.BHATTI, CHIEF JUSTICE _Sd/-_ BASANT BALAJI, JUDGE ss