High Court of KeralaSingle Judge2021-11-01Disposed of by common judgment with directions ...

W.P.(C.) Nos. 26713 of 2008, 8817 of 2010 and O.P.(C.) No. 2586 of 2011 (Abdulla Haji v. Kerala Micro and Small Enterprises Facilitation Council & Others; Sunshine Plastics v. Mahima Enterprises)

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

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2021-11-01
Court Decision / Holding: The three connected cases are disposed by a common judgment. The Court held that a writ petition challenging an MSME Award under Section 18(3) is not maintainable where an adequate remedy exists under Sections 18(5) and 19 of the MSMED Act. The petitioners are directed to challenge the impugned awards through the competent appellate mechanism within two months; the period of pendency of the writ petition will be excluded for calculating the limitation. Interim stay of Ext.P2 awards in WP(C) Nos. 26713/2008 and 8817/2010 is extended for two months. Ext.P5 in OP(C) No. 2586/2011 is set aside, and the District Court is directed to reconsider EA 74/2010 in EP 14/2009 in OA No. 1/07/MSEFC after hearing all parties. The matter is remitted to the appropriate forum for fresh consideration in accordance with law.
Final Disposition: Disposed of by common judgment with directions as stated: file appeals in the competent court within two months; stay extended for two months; Ext.P5 set aside and matter remanded to lower court for fresh consideration in accordance with law.

Parties to the Case

Appellants / Petitioners

Abdulla Haji
M/S Sunshine Plastics (Post-Pathriyad), Kannur District, represented by Managing Partner N. Aravindakshan

Respondents

Kerala Micro and Small Enterprises Facilitation Council, Thiruvananthapuram
M/S Evershine Industries, Kaitheripoyil, Pathiriyadu, Kannur District
M/S Mahima Enterprises, Bekal, Kasaragod District

Legal Representation & Advocates

Counsels for Petitioners

• Abdulla Haji – T.K. Vipindas (WP 26713/2008)
• Abdulla Haji – P.K. Priya (WP 8817/2010)
• Sunshine Plastics – S. Santhheep Ankarath; Sumodh Madhavan Nair (OPC 2586/2011)

Counsels for Respondents

• Kerala Micro and Small Enterprises Facilitation Council – R. Sudhir; Rashmi K.M.; Senior Government Pleader
• M/S Evershine Industries – (adv. counsel as per records)
• M/S Mahima Enterprises – P. K. Priya; T. K. Vipindas; K.V. Sree Vinayakan; K.M. Muhammed Hussain

Case Synopsis & Summary

This common judgment of a Kerala High Court Bench (P. V. Kunhikrishnan, J.) consolidates three connected matters: W.P.(C.) Nos. 26713/2008 and 8817/2010 filed by Abdulla Haji, and O.P.(C.) No. 2586/2011 filed by Sunshine Plastics. The core dispute concerns awards under Section 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act, 2006) issued by the Kerala Micro and Small Enterprises Facilitation Council (MSEFC). The petitioners sought relief by writ petitions challenging the awards, while acknowledging an alternative statutory remedy under Sections 18(5) and 19 of the Act. The Court notes two binding decisions—Sajith Kumar M.S. v. State of Kerala and KSRTC v. Union of India—that recognize that writ petitions are not maintainable when an adequate statutory remedy exists. In light of this, the Court holds that the petitioners must challenge the impugned awards through the prescribed appellate mechanism before the appropriate court. The Court remands and provides interim relief, directing the execution/attachment issues to be reconsidered, and extending stays for a limited period to allow proper course of action. Ext.P5 is set aside for fresh consideration. The matter is disposed by a common judgment with directions to pursue the statutory remedy.

Provisions of Law Cited

Micro, Small and Medium Enterprises Development Act, 2006 – Section 18(3)Micro, Small and Medium Enterprises Development Act, 2006 – Section 18(5)Micro, Small and Medium Enterprises Development Act, 2006 – Section 19

Legal Doctrines & Maxims

Alternative remedy doctrine: writ petitions are not maintainable where a statutory remedy exists
Writ jurisdiction is limited by the availability of statutory remedy under the MSMED Act, 2006
Breathing time/temporary extension: interim relief can be extended to facilitate resort to an appropriate forum

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenged the Ext.P2 awards under Section 18(3) of the MSMED Act, seeking judicial relief through writ petitions. They implicitly relied on the statutory remedy framework to question the awards and sought interim protections during the pendency of alternative remedies.

Contentions of Respondents

The respondents contended that the MSMED Act provides an exclusive route to challenge such awards (Sections 18(5) and 19), rendering the writ petitions non-maintainable. They urged adherence to the statutory procedure and opposed unfettered investigation through writ jurisdiction, while supporting proper execution of awards and continuance of interim safeguards until resolution in the appropriate forum.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sajith Kumar M.S. v. State of Kerala	2019 (2) KHC 570	Positive	Court cites to support the proposition that writ petitions are not maintainable when an adequate statutory remedy exists.
KSRTC v. Union of India	2010 (1) KLT 65	Positive	Court cites to affirm the availability of an alternative remedy and the corresponding limitation on writ jurisdiction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 WP(C) NO. 26713 OF 2008** ## **PETITIONER/S:** ABDULLA HAJI, AGD 58 YEARS, C/O M/S MAHIMA ENTERPRISES, PALAKUNNU P.O. BEKAL P.O., KASARAGOD BY ADV SRI.T.K.VIPINDAS ## **RESPONDENT/S:** > 1 THE KERALA MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, THIRUVANANTHAPURAM > 2 M/S. EVERSHINE INDUSTRIES KAITHERIPOYIL P.O., PATHIRIYODU, KANNUR DISTRICT. BY ADV SRI.R.SUDHIR, R2 SMT.RASHMI K.M., SR.GP 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: **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 WP(C) NO. 8817 OF 2010** ## **PETITIONER/S:** ABDULLA HAJI,AGED 58 YEARS C/O.M/S.MAHIMA ENTERPRISES,, PALAKUNNU P.O., BEKAL P.O.,, KASARAGOD. BY ADV SMT.P.K.PRIYA ## **RESPONDENT/S:** 1 THE KERALA MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, THIRUVANANTHAPURAM. 2 MS.EVERSHINE INDUSTRIES KAITHERIPOYIL P.O., PATHIRIYODU,, KANNUR DISTRICT. 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. ADDL.R3 IS IMPLEADED AS PER ORDER DT.25.10.11 IN IA 16862/11 BY ADVS. SRI.R.SUDHIR SRI.SANTHEEP ANKARATH 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: **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** **OP(C) NO. 2586 OF 2011 AGAINST THE ORDER/JUDGMENT IN OA 1/07/MSEFC PASSED BY DISTRICT COURT, KASARGOD** ## **PETITIONER/S:** 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. BY ADVS. SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR ## **RESPONDENT/S:** 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. BY ADVS. SMT.P.K.PRIYA SRI.T.K.VIPINDAS SRI.K.V.SREE VINAYAKAN SRI.K.M.MUHAMMED HUSSAIN 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: **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **4** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------W.P.(C.) Nos.26713 of 2008, 8817 of 2010 and OPC No. 2586 of 2011** **-------------------------------------Dated this the 1[st ] day of November, 2021** ## **JUDGMENT** 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. 2. 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 **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **5** 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. 3. 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 **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **6** 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. 4. 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. **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **7** Therefore, these three cases are disposed in the following manner : 1) 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. 2) 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. 3) 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. 4) 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 **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **8** accordance to law, after giving opportunity of hearing to all parties concerned. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **9** ## **APPENDIX OF WP(C) 26713/2008** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P2 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 19-4-2008 ## **RESPONDENT EXHIBITS** 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 EXT.R2(B) TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT TO THE STATEMENT OF DEFENCE FILED BY THE PETITIONER. **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **10** ## **APPENDIX OF WP(C) 8817/2010** PETITIONER EXHIBITS 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. **WP(C) Nos.26713/08, 8817/10 & OPC 2586/11** **11** ## **APPENDIX OF OPC 2586/2011** ## **PETITIONER EXHIBITS** 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.