# 1128 INDIAN LAW REPORTS ALLAHABAD SERIES M/s. Kritika Auto Product Ltd v. U.P. State Micro and Small Enterprises Facilitation Council, U.P. Kanpur & Anr

- **Citation:** (2019) 4 ILRA 1127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-21
- **Case number:** Writ-C No. 543 of 2017
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/1128-indian-law-reports-allahabad-series-m-s-kritika-auto-product-ltd-v-u-p-44869
- **Pages:** 5

## Headnote

C.S.C.
Sri
Kandarp
Srivastava,
Sri
Kaustubh Srivastava, Sri Ranjit Saxena

A. Civil Law - Arbitration and Conciliation
Act, 1996 - Section 36 - Micro Small and
Medium Enterprises Development Act,
2006 - Section 18 (2) and (3) -
Maintainability of execution case u/s 36
of Act, 1996 to execute an award under
Act, 2006 - Enforcement of an award
through its execution can be filed
anywhere in the country where such
decree can be executed and there is no
requirement for obtaining a transfer of
the decree from the Court, which would
have
jurisdiction
over
the
arbitral
proceedings. (Para 8 & 9)

Writ Petition dismissed. (E-1)

List of cases cited: -

## Text

4 All. Sunil Kumar Dubey & Ors. Vs. State of U.P. & Ors.
1127

39. The obvious reason is that there
was no occasion for the petitioners to
raise any dispute as all teachers appointed
on 25.11.1999 were promoted to the post
of Headmaster in Junior Basic School and
Assistant Teacher in Senior Basic School.

40. This fact is also admitted to the
District
Basic
Education
Officer,
Kushinagar and private respondents in
their counter affidavits.

41. In fact, the dispute with respect
to the interse seniority petitioners and
private respondents arose in the year 2015
when provisional seniority list was
published
on
12.6.2015
determining
seniority of the Assistant Teachers from
the date of their joining instead of the date
of
their
initial
appointment.
The
petitioners raised objections and filed the
instant writ petition, immediately after
receipt
of
the
information
of
the
promotion order. There is no latches on
the part of the petitioners in challenging
the wrong determination of their seniority
vis-a-vis promotees. The entire exercise
of promotion to the post in question on
the basis of the said seniority list is,
therefore, illegal.

42. In the facts and circumstances of
the present case, it cannot be said that
interse seniority of the teachers in the
Basic Schools of District Kushinagar was
settled and cannot be reopened.

43. For the above discussions, the
promotion orders dated 31.7.2015 are
liable to be set aside.

44. The District Basic Education
Officer, Kushinagar is hereby directed to
prepare
a
fresh
seniority
list
by
determining interse seniority of the
candidates appointed on 25.11.1999 from
the date of their initial appointment as per
the Rules, 1981. After re-determination of
the seniority of all such persons, their
candidature for promotion to the post of
Headmaster in Senior Basic School,
District Kushinagar shall be considered
afresh. The orders of promotion shall,
accordingly, be issued and implemented
immediately after determination of their
seniority.

45. It is further directed that in
case,
in
the
fresh
exercise,
the
petitioners
are
found
eligible
for
promotion and are selected as per their
seniority
against the
vacancies
of
Headmaster, Senior Basic School filled
by promotion on 31.7.2015, they shall
be given notional promotion w.e.f. that
date till actual promotion orders are
issued.

46. It is further made clear that in
case of reshuffling of the list of promotees
and reversion of the respondents, no
recovery shall be made from them.

47. The entire exercise shall be
completed within a period of two months
from the date of submission of certified
copy of this order.

48.

In
view
of
the
above
observations and directions, the writ
petition is allowed.
----------
(2019)12 ILR A1127

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2019
BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 543 of 2017
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
M/s. Kritika Auto Product Ltd.
 ...Petitioner
Versus
U.P. State Micro and Small Enterprises
Facilitation Council, U.P. Kanpur & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Singh Paliwal

Counsel for the Respondents:
C.S.C.
Sri
Kandarp
Srivastava,
Sri
Kaustubh Srivastava, Sri Ranjit Saxena

A. Civil Law - Arbitration and Conciliation
Act, 1996 - Section 36 - Micro Small and
Medium Enterprises Development Act,
2006 - Section 18 (2) and (3) -
Maintainability of execution case u/s 36
of Act, 1996 to execute an award under
Act, 2006 - Enforcement of an award
through its execution can be filed
anywhere in the country where such
decree can be executed and there is no
requirement for obtaining a transfer of
the decree from the Court, which would
have
jurisdiction
over
the
arbitral
proceedings. (Para 8 & 9)

Writ Petition dismissed. (E-1)

List of cases cited: -

1. Sundaram Finance Limited vs. Abdul Samad
and Ors AIR 2018 SC 965

List of cases cited: -

1. Computer Sciences Corporation India Pvt.
Ltd. v. Harishchandra Lodwaland Anr. AIR
2006 MP 34

(Delivered by Hon'ble Siddhartha Varma, J.)

1. Learned counsel for the parties
have filed their written arguments.

2. A dispute arose between the
petitioner and the respondent no. 2 regarding
payment for some goods supplied by the
respondent no. 2 to the petitioner. From the
record of the case it appears that the
respondent no. 1 that is the U.P. State Micro
and Small Enterprises Facilitation Council,
U.P. Kanpur entertained the dispute between
the petitioner and the respondent no. 2 and
ultimately an award was drawn on 11.5.2015
which was signed on 21.6.2015 and as per
the award the respondent no. 2, (the
petitioner before the U.P. State Micro and
Small Enterprises Facilitation Facilitation
Council) was entitled to get an amount of Rs.
19,86,951/- alongwith interest. The amount
payable to the respondent no. 2 on the date of
the award was Rs. 36,04,777/-. It was further
provided that interest would be leviable till
the entire payment was made. When this
amount, it appears, was not being paid by the
petitioner, the respondent no. 2 filed an
application for executing the award before
the
District
Judge,
Faridabad.
This
application was filed under Section 36 of the
Arbitration and Conciliation Act, 1996. The
petitioner who was the Judgement Debtor
had appeared before the executing court and
the execution proceedings had started. This
writ
petition,
thereafter,
during
the
continuation of the execution proceedings,
was filed saying that as only the provisions
of Sections 65 to 81 of the Arbitration and
Conciliation Act 1996 had been made
applicable by Section 18 (2) of the Micro
Small and Medium Enterprises Development
Act, 2006, the provisions of Section 36 were
not applicable and the Execution Case was
not maintainable. Since the learned counsel
for the petitioner readout Section 18 (2) of
the Micro Small and Medium Enterprises
Development Act, the same is being
reproduced here as under:-

"18. Reference to Micro and
Small
Enterprises
Facilitation
Council:-(2) On receipt of a reference
under sub-section (1), the Council shall
4 All. M/s Kritika Auto Products Ltd. Vs. U.P. State Micro and Small Entp. Faciliation Council Kanpur, U.P. & Anr. 1129
either itself conduct conciliation in the
matter or seek the assistance of any
institution or centre providing alternate
dispute resolution services by making a
reference to such an institution or centre,
for conducting conciliation and the
provisions of sections 65 to 81 of the
Arbitration and Conciliation Act, 1996,
shall apply to such a dispute as if the
conciliation was initiated under Part III of
that Act "

3. Further learned counsel for the
petitioner
stated
that
even
if
the
Arbitration and Conciliation Act 1996
was applicable then as per Section 42 of
that Act the Court which had jurisdiction
over the Arbitration proceedings alone
would have the jurisdiction to deal with
the execution etc. of the award.

4. Learned counsel for the petitioner
still
further
argued
that
under
no
circumstances would the award which
was in the shape of a decree be executed
by the Court at Faridabad. In this regard,
learned counsel for the petitioner relied
upon AIR 2006 MP 34 (Computer
Sciences Corporation India Pvt. Ltd. v.
Harishchandra Lodwal and Anr.) and
stated that it would have been proper had
the execution been filed at Kanpur and
thereafter it would have been transferred
to some other Court. But, he stated, it
could not have been filed at Faridabad.

5.

Learned
counsel
for
the
respondents, in reply, however, submitted
that though Section 18 (2) of the Micro
Small
and
Medium
Enterprises
Development Act, 2006, had applied
Sections 65 to 81 for the purposes of
conciliation, arbitration had to take place
as per the Section 18 (3) of the Micro
Small
and
Medium
Enterprises,
Development Act. The council under the
Act could either itself settle the dispute by
arbitration or could refer a given dispute
to any institution or centre for arbitration.
For arbitration the provisions of the
Arbitration and Conciliation Act 1996 had
to apply as if the Arbitration was in
pursuance of an arbitration agreement
referred to under Section 7(1) of the
Arbitration and Conciliation Act 1996.

6. Since learned counsel for the
respondents referred to Section 18(3) of
the Micro Small and Medium Enterprises
Development Act 2006, the same is being
reproduced here as under:-

"18. Reference to Micro and
Small
Enterprises
Facilitation
Council:- (3) Where the conciliation
initiated under sub-section (2) is not
successful and stands terminated without
any settlement between the parties, the
Council shall either itself take up the
dispute for arbitration or refer it to any
institution or centre providing alternate
dispute resolution services for such
arbitration and the provisions of the
Arbitration and Conciliation Act, 1996,
shall then apply to the disputes as if the
arbitration was in pursuance of an
arbitration agreement referred to in subsection (1) of Section 7 of that Act."

7.

Learned
counsel
for
the
respondent no. 2 submitted that under
Section 35 there was a finality attached to
the arbitration award if it had not been
challenged and then its enforcement was
possible
under
Section
36
of
the
Arbitration and Conciliation Act. Since
the learned counsel for the respondent no.
2 referred to Section 35 and 36 of the
Arbitration and Conciliation Act, the
same are being reproduced here as under:-
1130 INDIAN LAW REPORTS ALLAHABAD SERIES

"35.
Finality
of
arbitral
awards:- Subject to this Part an arbitral
award shall be final and binding on the
parties and persons claiming under them
respectively.

36. Enforcement.-(1) Where
the time for making an application to set
aside the arbitral award under Section 34
has
expired,
then,
subject
to
the
provisions of sub-section (2), such award
shall be enforced in accordance with the
provisions of the Code of Civil Procedure,
1908 (5 of 1908), in the same manner as if
it were a decree of the court.

(2) Where an application to set
aside the arbitral award has been filed in
the Court under section 34, the filing of
such an application shall not by itself
render that award unenforceable, unless
the Court grants an order of stay of the
operation of the said arbitral award in
accordance with the provisions of subsection (3), on a separate application
made for that purpose.

(3) Upon filing of an application
under sub-section (2) for stay of the
operation of the arbitral award, the Court
may, subject to such conditions as it may
deem fit, grant stay of the operation of
such award for reasons to be recorded in
writing:

Provided that the Court shall,
while considering the application for
grant of stay in the case of an arbitral
award for payment of money, have due
regard to the provisions for grant of stay
of a money decree under the provisions of
the Code of Civil Procedure, 1908 (5 of
1908)."

8. Learned counsel for the
respondents further submitted that since
an award was not a decree but was only
being executed like a decree by a fiction
of law created by the Arbitration and and
Conciliation Act, the arbitral award could
be executed anywhere in the country
where such a decree/award could be
executed and, therefore, there was no
requirement to first file the execution
application for executing the award in the
Court which had jurisdiction and then get
it transferred. In fact, learned counsel for
the respondent no.2 submitted that the
judgement cited by the learned counsel
for the petitioner stood overruled by the
judgement reported in AIR 2018 SC 965
(Sundaram Finance Limited vs. Abdul
Samad and Ors). Since the learned
counsel for the respondent no. 2 referred
to paragraphs 22, 23 and 24 of the
judgement, the same are being reproduced
here as under:-

"22.
We
are,
thus,
unhesitatingly of the view that the
enforcement of an award through its
execution can be filed anywhere in the
country where such decree can be
executed and there is no requirement for
obtaining a transfer of the decree from the
Court, which would have jurisdiction over
the arbitral proceedings.

23. The effect of the aforesaid is
that the view taken by the Madhya
Pradesh High Court and the Himachal
Pradesh High Court is held to be not good
in law while the views of Delhi High
Court, Kerala High Court, Madras High
Court, Rajasthan High Court, Allahabad
High Court, Punjab & Haryana High
Court and Karnataka High Court reflect
the correct legal position, for the reasons
we have recorded aforesaid.

24. The appeal is accordingly
allowed and the impugned order dated
20.3.2014 is set aside restoring the
execution
application
filed
by
the
appellant before the Morena courts. The
parties are left to bear their own costs. "
4 All. The Indian Hume Pipe Ltd. Vs. State of U.P. & Ors.
1131

9.Having heard the learned counsel
for the parties, I am of the view that the
award could have been put into execution
by the Court where the execution was
filed. This is also the view which has been
taken by the judgement reported in AIR
2018 SC 965.

10.The writ petition, therefore, lacks
merit and is, accordingly, dismissed.
----------
(2019)12 ILR A1131

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-C No. 9402 of 2019

The Indian Hume Pipe Co. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anurag Khanna, Sri Shubham Agrawal,
Sri Raghav Dev Garg

Counsel for the Respondents:
C.S.C., Sri Anant Kishore, Sri Manish
Kumar Nigam, Sri Pranjal Mehrotra, Sri
S.K. Chaturvedi, Sri Shashi Nandan

A. Judicial review - Scope - Interference
in contract matter and E-tender process
- Judicial review in tender matters is
limited and review can only be made on
point of arbitrariness, illegality and
excess exercise of power - The Court
should not venture into the realm of
terms of contract and it is the author of
the tender document who is the best
person to understand and appreciate its
requirement and interpret the same - It
should refrain from exercise of judicial
review in matters relating to terms and
conditions of the tender document -
Only in case where breach of rules of
natural justice has been committed or
decision has been reached which no
reasonable Tribunal would have reached
or there is an abuse of power, that the
Court can interfere. (Para 25, 50 & 56)

Writ Petition dismissed. (E-1)

List of cases cited: -

1. Nabha Power Ltd. (NPL) v. Punjab State
Power Corporation Ltd. (PSPCL) and another,
(2018) 11 SCC 508

2. Judgment dated 09.04.2019 of Supreme
Court passed in Civil Appeal No. 3588 of 2019;
Caretel Infotech Ltd. v. Hindustan Petroleum
Corporation Limited and others)

3. AFCONS Infrastructure Ltd. vs. Nagpur
Metro Rail Corporation Ltd. and another,
(2016) 16 SCC 818

4. Haffkine Bio-Pharmaceutical Corporation
Ltd. vs. Nirlac Chemicals and others, (2018) 12
SCC 790

5. Maa Binda Express Carrier and another vs.
North-East Frontier Railways and others
(2014) 3 SCC 760

6. Union of India vs. Sankalchand Himatlal
Sheth and another (1977) 4 SCC 193

7.
Ramana
Dayaram
Shetty
v.
The
International Airport Authority, AIR 1979
(SC)1628

8. Poddar Steel Corporation vs. Ganesh Engineering
Works and others (1991) 2 SCC 273

9. G.J. Fernandez vs. State of Karnataka and
others (1990) 2 SCC 488

10. Tata Cellular v. Union of India (1994) 6
SCC 651

11. Indian Railway Catering and Tourism
Corporation Ltd. and another v. Doshion Veolia