M/S Godrej Foods Ltd. v. M/S Panchamy Exporters Pvt. Ltd., State of Kerala, and The Chairman (Director of Industries & Commerce), Micro & Small Enterprises Facilitation Council, Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936** ## **WP(C).No. 15632 of 2014 (D)** **----------------------------** ## **PETITIONER(S) :-** - **------------------** **M/S.GODREJ FOODS LTD.,** **L.M.NANDAKARNI MARG, NEAR BPT HOSPITAL, WADALA EAST MUMBAI-400037 PRESENTLY M/S.GODREJ INDUSTRIES LTD. L.M.NANDAKARNI MARG, NEAR BPT HOSPITAL, WADALA EAST MUMBAI-400037** **REPRESENTED BY ITS ASSOCIATE VICE PRESIDENT (LEGAL)** **BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.A.KRISHNAN** **RESPONDENT(S) :-** - **------------------** **1. M/S.PANCHAMY EXPORTERS PVT.LTD., 28/170, KAITHAMUKKU, THIRUVANANTHAPURAM-695024 REPRESENTED BY ITS MANAGING DIRECTOR S.KRISHNAKUMAR.** **2. STATE OF KERALA REPRESENTED BY SECRETARY, INDUSTRIES DEPARTMENT DIRECTORATE OF INDUSTRIES & COMMERCE, 3RD FLOOR VIKAS BHAVAN, THIRUVANANTHAPURAM.** **3. THE CHAIRMAN (THE DIRECTOR OF INDUSTRIES & COMMERCE), MICRO & SMALL ENTERPRISES FACILITATION, COUNCIL OF KERALA 3RD FLOOR, VIKAS BHAVAN, (PMG), THIRUVANANTHAPURAM - 695 024.** **R1 BY ADV. SRI.D.SAJEEV BY SR.GOVERNMENT PLEADER SRI.K.C.VINCENT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **WP(C).No. 15632 of 2014 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :-** **---------------------------** **EXT.P1: COPY OF THE AGREEMENT DATED 8.6.1998 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT.** **EXT.P2: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 1ST RESPONDENT DATED 19.4.2000.** **EXT.P3: COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE PETITIONER DATED 11.05.2000.** **EXT.P4: COPY OF THE REPLY DATED 16.06.2000 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.** **EXT.P5: COPY OF THE NOTICE DATED 02.03.2001, ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.P6: COPY OF THE LETTER DATED 8.11.1999, FROM THE PETITIONER TO THE 1ST RESPONDENT.** **EXT.P7: COPY OF THE LETTER DATED 31.1.2000, FROM THE PETITIONER TO THE 1ST RESPONDENT.** **EXT.P8: COPY OF THE LETTER DATED 13.3.2000, FROM THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.P9: COPY OF THE ORIGINAL APPLICATION FILED BEFORE DATED 15.5.2011 THE 2ND RESPONDENT, AS PER THE PROVISIONS OF THE MICRO, SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT, 2006.** **EXT.P10: COPY OF THE WRITTEN STATEMENT TO EXT.P9 DATED 13.12.2011.** **EXT.P11: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 25.2.2013.** **ET.P12: COPY OF THE RESTORATION PETITION 21.03.2013, AS IS SERVED TO THE PETITIONER.** **EXT.P13: COPY OF THE OBJECTION DATED JUNE, 2013 TO EXT.P12.** **EXT.P14: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 29.4.2014.** **RESPONDENT(S)' EXHIBITS :- NIL** **-------------------------------** //TRUE COPY// P.A. TO JUDGE ## **A. MUHAMED MUSTAQUE, J. ----------------------------------------W.P.(C). No.15632 of 2014 ------------------------------------Dated this the 4[th] day of August 2014** ## **J U D G M E N T** This writ petition is filed challenging the order passed by the 3[rd] respondent restoring an original application filed by the first respondent herein, in terms of the Micro, Small and Medium Enterprises Development Act, 2006. This application was dismissed for non-prosecution. The following are the dates and proceedings :- |“04.08.2011|Petitioner present, Respondent absent.| |---|---| ||Adjourned| ||(Notice did not reach the respondent on| ||time. Fresh notice was ordered)| |25.08.2011|No sitting.| |03.11.2011|Petitioner absent, Respondent present.| ||(Posted for Counter).| |08.12.2011|No sitting.| |13.12.2011|Petitioner absent, Respondent present.| ||(Respondent filed counter regarding| ||maintainability. For further steps).| |14.02.2012|No sitting.| |02.07.2012|Petitioner absent, Respondent present.| |02.08.2012|Petitioner absent, Respondent present.| |20.08.2012|No sitting.| W.P.(C). No.15632 of 2014 -: 2 :- 26.11.2012 Petitioner absent, Respondent present. 21.01.2013 Petitioner absent, Respondent present. (Respondent submitted that the petition is barred by limitation. Since the petitioner is continuously absent there is no need to pursue further). 25.02.2013 Petitioner absent, Respondent present. (Order pronounced dismissing the application).” 2. The first respondent filed Restoration Petition No.01/2013 for restoring the original application on file. This was allowed as per Ext.P14. It has observed in Ext.P14 order as follows :- “On perusal of the available records, it is seen that there is a practice of intimating in writing about adjournment to the parties. It is also seen that on some days these are not intimated. The Council has never considered the merits of the case. It is true that the petitioner had not taken earnest effort to pursue the case. But considering that the amount involved is huge, some lapses on the part of the Council in intimating dates of hearing, and that the merits of the case have not been considered, the Restoration Petition is allowed. The petitioner (O.A No.07/2011) is posted for hearing on 26.6.2014.” 3. Challenging Ext.P14, the learned Senior Counsel submits that this original application itself is only a harassment against the petitioner. It is further pointed out that, the transaction, which is the subject matter of original application W.P.(C). No.15632 of 2014 -: 3 :- was taken place much before 2001 and that the first respondent could not meet the huge requirements of the petitioner and is also liable to the petitioner and in order to overcome such liability, the first respondent approached the 3[rd] respondent by filing the original application. Learned Senior Counsel also challenges the maintainability of the original application and would submit that the original application itself is not maintainable as it is barred by the limitation. 4. Though there is no specific provision as such for restoring the original application, there is no provision to dismiss the application for default. I am of the view that, when the Council has decided to dismiss the original application for default, necessarily, that Tribunal has power to restore such original application. See the decision of this Court in **Cheru Ouseph** v. **Kunjipathumma** [1981 KLT 495], it is held as follows :- “12. What, after all, is the inherent power saved by S.151 of the Code of Civil Procedure? A court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the court must have jurisdiction over the proceedings before it can exercise the ## W.P.(C). No.15632 of 2014 ## -: 4 :- inherent power; but when that is granted, its power to advance the cause of justice by relying on unenumerated powers - on inherent or residuary power, as it is often called - cannot be denied to it. And therefore, where a tribunal exercises the same kind of power ie; part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuary powers ? If you do not like the same, call it by another, but so long as the tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice. This is not to convert every tribunal into a tyrant, but only to recognise the reality that tribunals have come to stay as instruments of administration of justice, and that occasions may arise where they too will have to step into areas unchartered by the statute and the rules, in the interests of justice. If a tribunal goes out of its way in the fulness of its powers, the superior courts are there to correct it, as noticed by Allen; and as also observed by him, the first adjudication is more important to the litigant than the last.” 13. I would therefore say, as indicated by the Supreme Court in Dhani Devi's case (AIR 1970 SC 759), that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function. Corpus Juris Secundum (5) contains the following passage :- “Apart from and without reference to statutory authority therefore and subject to some restrictions and limitations, it has been held that an administrative agency may correct or amend its orders. Thus it has been held, except as qualified by statute, administrative tribunals possess the inherent power to modify their judicial acts to serve the ends of essential justice W.P.(C). No.15632 of 2014 -: 5 :- and the policy of the law; and that the general power of an administrative body over its decisions includes the right to modify a decision so as to reach a different result on the same record.” This almost amounts to recognition of a power of review; but Art. 114 contains the following also :- “An administrative body may generally conduct its proceedings in such manner as will best conduce to the proper despatch of its business and to the ends of justice. It is generally permitted a wide discretion and latitude in procedural details and ordinarily may establish its own rules and regulations as to practice and procedure, although it must conform to standards of fairness and reasonableness.” ## In another judgment of this Court in **Gopalan Bhavani** v. **Raghavan Aravindakshan** [1989 (2) KLT 118] also held as ## follows :- “6. The position that emerges from these situations is that the Tribunal, if not conferred with specific power to dismiss an application for default and to restore the application dismissed for default, has no power to dismiss an application for default or to restore an application dismissed for default. Naturally, this would pose another question as to what has to be done with an application, which has not been prosecuted by the applicant. This expediency, in our view, should not force the court to boggle or equivocate its interpretive function. We feel that it is irrational for a court to hold in the absence of specific provisions in the statutes that the Tribunal has got only the power to dismiss an application for default and has no power to restore an application dismissed for default. 23. It is difficult for us to hold that the Land Tribunal under the K.L.R Act has jurisdiction to dismiss an application for default; and has no jurisdiction to restore such an W.P.(C). No.15632 of 2014 ## -: 6 :- application, which has been dismissed for default. We say so because the statute does not give the power to dismiss an application or to restore the application dismissed for default, but for the effective implementation of the provisions contained in the statute, both these powers are necessary and the power to dispose of an applicationm under S.75(2) read with S.77(2) grants the ancillary power to dismiss the application for default and also grants the power to restore such an application. Both can be treated as incidental and ancillary to the main power granted to the Tribunal to dispose of the application under S.75 (2) read with S.77(2) of the K.L.R. Act. In this view we hold that the Tribunal has got the power to restore an application dismissed for default, if appropriate and valid reasons are stated within reasonable time.” 5. The questions regarding maintainability of the application and limitation requires consideration before proceeding further in the matter. The above questions cannot be decided here in this writ petition as it involves disputed facts. Therefore, before taking up the matter on its merit, the Council has to decide the maintainability and limitation aspects raised by the petitioner. In the result :- - (i) Challenge to Ext.P14 must fail and accordingly this Writ Petition is dismissed to the extent regarding challenge to Ext.P14. W.P.(C). No.15632 of 2014 -: 7 :- (ii) The Tribunal shall decide on maintainability and limitation as preliminary issue before proceeding to decide on merits of the application. **Sd/A. MUHAMED MUSTAQUE, JUDGE.** Jvt