JUDGMENT :

Learned counsel for the parties are present.

2. The present petition has been filed under Article 227 of the Constitution of India for the following reliefs: -

“(i) For quashing of the order dated 03.03.2023 (Annexure-12) passed by Learned Presiding Officer, Commercial Court (wrongly typed as Commercial Court)/District Judge-1st, Bokaro, in Commercial Execution Case No. 21 of 2022 (Execution Case No. 77 of 2018), whereby and whereunder application dated 14.05.2019 filed by the judgment debtor is dismissed and the judgment debtor is directed to comply the Award dated 06.07.2018 passed by West Bengal Micro, Small and Medium Facilitation Council, Kolkata, within 15 days from this order;

And/Or

(ii) For further issuance of an appropriate order/direction as Your Lordships may deem fit and proper for doing conscionable justice to the petitioner.”

3. The present proceedings arise out of execution case instituted by the respondent for execution of arbitration award dated 06.07.2018 under Section 36 of the Arbitration and Conciliation Act, 1996 for a total amount of Rs. 1,59,09,214.33 plus interest @ 3% of bank rate of RBI Compounded with monthly rests. The award was passed by the West Bengal Facilitation Council under the provisions of Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred as “MSME Act) in case number 330 and 331 of 2014. Admittedly, the award was not challenged under section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Act of 1996). The petitioner prayed for dismissal of the execution proceedings and also to pass necessary orders that the executing court had no jurisdiction to entertain the execution petition based on illegal and non-est order passed by the West Bengal State Small and Medium Enterprises Facilitation Council on account of various orders and proceedings before the National Company Law Tribunal (NCLT), Kolkata/National Company Law Appellate Tribunal (NCLAT), New Delhi. The impugned order has been passed rejecting the said plea in the execution proceedings.

Arguments on behalf of the petitioner

4. Broadly the learned counsel for the petitioner has submitted that the learned court below has failed to consider the following two aspects of the matter while passing the impugned order: -

i. Decree of nullity can be assailed in execution or co-lateral proceedings. Judgments relied are: -

(a) 1964 (1) SCR 495-Ittyavira Mathai v. Varkey Varkey & Anr.

(b) (2007) 2 SCC 355-Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors.

(c) (1990) 1 SCC 193 Sushil Kumar Mehta V. Gobind Ram Bohra (dead) through his LRS.

ii. The provisions of Insolvency and Bankruptcy Code , 2016 have overriding effect and the dues of the operational creditor including the respondent was taken as NIL. Therefore, the Facilitation Council under MSME Act lost its jurisdiction to pass any award. Judgments relied are: -

(a) (2021) 9 SCC 657- Ghanshyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd.

(b) (2020) 8 SCC 531- Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta

(c) (2022) 6 SCC 343- Ruchi Soya Industries Ltd. v. Union of India and Ors.

(d) (202