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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
M/s. Bharat Sanchar Nigam Limited - Appellant
Versus
Micro and Small Enterprises Facilitation Council Jaipur (Third) - Respondent
O.P.No.443 of 2020
Decided on : 10-12-2020
Micro, Small and Medium Enterprises Development Act, 2006 – Section 34(3),34(5) and 34(6) - Learned counsel on record for sole petitioner (BSNL) and learned counsel who has lodged caveat on behalf of second respondent in captioned OP are before court in this web hearing on a video conferencing platform - Read this in conjunction with and in continuation of earlier proceedings - Adverting to earlier proceedings, learned counsel for petitioner submits that he has since filed an affidavit with supporting annexures demonstrating that 75% of impugned award amount has been deposited in accordance with MSME Act A request is made by caveator counsel to file these responses by way of a typed set to assist Court regarding limitation issue as notice has not been issued - Whether captioned OP was presented in this Court within three months 30 days’ time frame or not – Held, This Court is conscious of fact that Bhumi Vikas case is an authority for the broad proposition that pre-application notice under subsection (5) of Section 34 is directory and not mandatory, but the observation made by Hon'ble Supreme Court in aforementioned is of significance - This is mentioned in this order to highlight the position that liberal views in matters of this nature will dilute the strict time lines and that will lead to dilution of the sublime philosophy and salutary principle underlying 'Alternate Dispute Resolution' mechanism qua A and C Act - This Court also reminds itself that owing to Hon'ble Supreme Court having held that pre-application notice under sub-section (5) of Section 34 is directory, one year period under sub-section (6) of Section 34 has to be computed from the date of presentation of Section 34 applications in cases where Section 34 applications are presented without issue of pre-application notice - In the light of the narrative thus far, this Court has no hesitation in coming to conclusion that captioned OP is barred by limitation and same deserves to be dismissed on this ground - Captioned OP stands dismissed.
ORDER :
1. From the case file placed before this Court it comes to light that captioned OP arises out of 'The Micro, Small and Medium Enterprises Development Act, 2006 (27 of 2006)' (hereinafter 'MSME Act' for the sake of brevity) and an arbitral award dated 23.10.2019 made by the MSEF Council has been called in question.
2. At the out set, counsel for caveator pointed out that captioned OP is barred by limitation, it ought not to have been taken on file and it deserves to be dismissed on the ground of limitation. Therefore, following proceedings came to be made on 02.11.2020:
2. Read this in conjunction with and in continuation of earlier proceedings dated 28.10.2020.
3. Adverting to earlier proceedings, learned counsel for petitioner submits that he has since filed (on 29.10.2020) an affidavit with supporting annexures demonstrating that 75% of the impugned award amount has been deposited in accordance with MSME Act.
4. To be noted, short forms and abbreviations used in the previous proceedings continue to be used.
5. Be that as it may, learned counsel for caveator points out that captioned OP has not been filed within three months and thirty days from the date of receipt of impugned award. It is also submitted that counsel for caveator has written to MSEF council/postal authorities (1st respondent in captioned OP), obtained necessary responses and submission is being made based on such written responses. A request is made by caveator counsel to file these responses by way of a typed set to assist the Court regarding limitation issue as notice has not been issued. Permitted.
6. Be that as it may, learned counsel for petitioner submits that the original impugned award was received from MSEF Council only on 26.06.2020 and therefore, captioned OP presented on 09.07.2020 is within time. As limitation goes to the root of the matter and rigour of the limitation under Sub-Section (3) of Section 34 of A and C Act is very high, this Court deems it appropriate to direct Registry to requisition all the records of Arbitral Tribunal qua impugned award in a sealed envelope. Registry to send communication to first respondent MSEF Council through available electronic modes of communications (besides conventional modes of communication). Requisition records in a sealed envelope which shall be sent to the office of the Registrar General of this Court and thereafter, the same shall be placed before this Court with the case file in the next listing.
7. Registry to also put up typed set if filed by learned counsel for caveator regarding limitation.
8. List under the same caption on 23.11.2020'
3. Thereafter, proceedings made on 23.11.2020 are also of significance and the same reads as follows:
2. Today, Mr.S.Gopinathan, learned counsel on record for sole petitioner (BSNL) and Ms.Aparajitha Vishwanath, learned counsel who has lodged caveat on behalf of second respondent in captioned OP are before me in this web hearing on a video conferencing platform.
3. In continuation of earlier proceedings dated 02.11.2020, a typed set of papers dated 28.10.2020 filed by caveator counsel regarding the limitation aspect has been placed before me as part of case file.
4. As far as requisition of records of Arbitral Tribunal from MSEF Council, Registry has put up a note saying that communication has been sent vide ROC No.3574/2020(O.S) dated 10.11.2020, but records have not been placed before me. Both aforesaid learned counsel are permitted to communicate these proceedings to MSEF Council for the limited purpose of expediting the sub
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