IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.09.2021 CORAM :

THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR O.P.Nos.692 & 1030 of 2019 and A.No.6755 of 2019, A.No.363, 3004 and 3112 of 2020 The Tamil Nadu Cements Corporation Ltd.

Rep. by Manager (Materials) in charge, L.L.A. Building, II Floor, No.735, Anna Salai, Chennai 600 002. ... Petitioner in both O.Ps.

Vs.

1. Unicon Engineers Rep. By its Managing Partner

513-A/6, Bharathi Road, Chinnavedampatty, Coimbatore – 641 049.

2. The Micro and Small Enterprises Facilitation Council Rep. by the General Manager, Coimbatore Region, District Industries Centre/zonal office, No.2, Raja Street, Coimbatore 641 049. … Respondents in both O.Ps.

PRAYER IN O.P.No.692 of 2019 Original petition has been filed under Section 34 of the Arbitration and Conciliation Act 1996 to set aside the award passed by the second respondent Council, dated 04.6.2016 in Case No.M & SEFC.CBER 11 of 2016 and confirmed the order, dated 25.10.2016 in R.C.No.436/D3/2014, direct the first respondent to pay a sum of Rs.12,20,940/- as damages suffered by the petitioner, Rs.17,47,543/- incurred towards various heads including interest and for costs.

PRAYER IN O.P.No.1030 of 2019 Original petition has been filed under Section 34 of the Arbitration and Conciliation Act 1996 to set aside the award passed by the second respondent Council, dated 04.6.2016 and dated 25.10.2016 in Case No.M & SEFC.CBER 30 of 2016 passed by the second respondent Council, direct the first respondent to pay a sum of Rs.12,89,225/- paid towards 25% advance amount of Rs.7,17,500/- and interest Rs.5,71,725/- @ 14.25% p.a. from 1.6.2011 to

31.12.2016 and thereafter till the date of realization with 14.25% p.a.

For Petitioner : Mr.A.Sivaji For Respondent No.1 : Mr.E.Omprakash, Sr. Counsel for M/s.B.Manoharan ******

COMMON ORDER

Since both the Original petitions are arising out of the award passed by the second respondent Council, dated 4.6.2016 and 25.10.2016 in favour of the first respondent, the aforesaid original petitions are disposed of by a common order.

FACTS OF THE CASE :

2 It is the case of the claimants/first respondent herein before the second respondent Council that pursuant to the work order, dated

16.4.2010, the first respondent supplied Electro Static Precipitators (E.S.P.) to the petitioner Corporation for a sum of Rs.7,13,10,343/- and a sum of Rs.37,50,200/- was fixed as erection and commissioning charges. According to the claimant, 90% payment for erection & commissioning will be released six months after successful completion of erection & commissioning and the balance 10% payment for erection & commissioning will be released along with Sl.No.VII-B (a) on submission of unconditional irrevocable Bank guarantee for the same value with validity period of 6 months. The first respondent raised number of invoices from 01.7.2010 to 25.12.2013 for a total sum of Rs.7,50,76,182/-. However, the petitioner has paid a sum of Rs.7,00,67,381/- and a sum of Rs.50,08,801/- is still pending. The total claim of the first respondent is Rs.2,66,80,157/- is outstanding due payable by the petitioner against the terms of purchase order issued by them.

AWARD PASSED BY THE M.S.E.F. COUNCIL

3. Taking note of the Section 15 & 16 of the M.S.M.E.D. Act, the second respondent Council held that the petitioner is entitled to recover the balance retention amount of Rs.39,66,144/- along with interest due to piecemeal releases of the total retention money of Rs.1,17,57,399/- with effect from 31.3.2011 and (2) Rs.1,57,59,537/- along with interest with effect from

17.1.2014 towards additional expenditure incurred by the first respondent due to the delay of 3 years in execution of civil works by the petitioner Corporation.

4. Aggrieved by the said award passed by the second respondent Council in favour of the first respondent, the petitioner has filed a petition under Sec.33 of the Arbitration and Conciliation Act before the second respondent to recall the Award, dated 04.6.2016 in