JUDGMENT :

Shree Chandrashekhar, J.

This Letters Patent Appeal challenges the writ Court’s order dated 22nd October 2019 dismissing W.P.(C) No. 3533 of 2019.

2. Briefly stated, pursuant to a tender notice dated 13th August 2010 issued by the Corporation for supply of fabricated items an offer was made by M/s National Small Industries Corporation Limited (in short, NSICL) which was accepted by M/s. Heavy Engineering Corporation Limited (in short, the Corporation) and a rate contract was signed on 23rd November 2010. Pursuant thereto, purchase order was issued by the Corporation for supply of fabricated items as per the drawings of the Corporation. According to the Corporation, the purchase order was issued on certain terms and conditions and one of the provisions thereunder was that the parties shall resolve the dispute in accordance with the arbitration agreement. It was further provided therein that the Court at Ranchi shall only have jurisdiction to entertain a petition arising out of the contract dated 23rd November 2010. Now, in order to supply the fabricated items to the Corporation, the NSICL placed work orders dated 1st December 2010 and 3rd January 2011 to M/s Pioneer Industries (in short, the Industry) for supply of those items. These work orders contained under clause 20 a stipulation that the notification of delivery or dispatch shall be made immediately and the contractor shall further supply to the consignee or the interim consignee as the case may be, a package account quoting number of the acceptance of tender and/or supply or repeat order and date of dispatch of the stores. According to the Corporation, there were delays in supply of the fabricated items and the Corporation was entitled to invoke the liquidated damages clause and to adjust such amount from the bills of NSICL. More specifically, deduction from the bills submitted by NSICL were made in terms of Clause 8(3) of the General Conditions of the Contract.

3. Aggrieved thereby, the Industry filed a petition before the Facilitation Council at Cuttack under section 18 of the MSME Act which was registered as MSEFC Case No. 13 of 2015 and a notice dated 28th January 2017 was issued to the Corporation requiring it to appear before the Facilitation Council at 11:00 AM on 7th February 2017 for settlement of the dispute. In response to this notice, the Corporation made a request through petition dated 3rd February 2017 seeking 8 weeks’ time for amicable settlement of dispute between the parties. However, the Facilitation Council passed an award dated 7th February 2017 which was forwarded to the Corporation through Memo No. 2117 dated 1st March 2017.

4. The award dated 7th February 2017 refers to a claim for Rs. 1,61,04,831.21 raised by the Industry which included the principal sum of Rs. 78,47,291.00, replies filed by opposite party nos. 1 and 2 on 8th September 2015 and 7th September 2015 respectively and the rejoinders dated 19th October 2015 and 21st December 2015 filed by the claimant – Industry. The Facilitation Council has then considered the rival claims and made the award dated 7th February 2017, which also gives a brief narration of the sittings of the Facilitation Council. The award dated 7th February 2017 made by the Facilitation Council runs as under:

“The petitioner and the respondent No:-2 were present before the Council in 43rd sitting of MSEFC on 20.02.2016. But the respondent No:-1 was absent before the Council.

The Council heard the deliberation from both the sides. It is observed that as per the terms and conditions of respondent No.1, 90% of payment will be made within 60 days and the remaining 10% shall be paid after the guarantee period.

NSIC participated in the tender and got the job being of lowest price bidder. The O.P. No.1 ie. Heavy Engineering Corpn. Ltd, Ranchi placed purchase order to NSIC for supply of materials & NSIC in turn placed purchase order to the petitioner accordingly. In pursuance to it, the petitioner supplied fabricated Items