Court No. - 39
Case :- WRIT - C No. - 15635 of 2016 Petitioner :- M/S Meeraj Industries Respondent :- M/S I.T.I. Ltd. Gsm Project And Another Counsel for Petitioner :- Kartikeya Saran Counsel for Respondent :- S.C.
Hon'ble B. Amit Sthalekar,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Prateek Samadhiya, learned counsel holding brief of Sri Kartikeya Saran for the petitioner.
Notices were issued to the respondents on 24.10.2017 and as per Office Report dated 27.11.2017, RPAD notices have been served on the respondents. Notice shall be deemed to be sufficient. No one has appeared on behalf of the respondents nor has any counter affidavit been filed.
The petitioner in the writ petition is stated to have participated in a tender floated by the Respondent no.1 for supply and commissioning of 100 Diesel Generator sets of 7.5KVA capacity for BSNL 02M Lines covering Maharashtra Telecom Circle. The petitioner received the purchase order on 07.01.2008 and thereafter vide an email dated 26.03.2009 it was informed that the quantity had been reduced to 30 Generator sets. The petitioner supplied the requisite number of generator sets namely, 30+1 Pilot 7.5KVA set for testing but the Respondent no.1 refused to make payments to the petitioner on the ground that the BSNL AT (Acceptance Test) had not been passed. Being aggrieved, the petitioner filed a claim petition before the Respondent no.2-U.P. State Micro and Small Enterprises Facilitation Council, Kanpur (hereinafter referred to as 'Council') being Claim Petition no. 25 of 2012 (Meeraj Industries Vs ITI Limited, Pune) claiming the sum of Rs. 9,71,450/- along with interest. A copy of the Claim Petition has been filed as Annexure-2 to the writ petition. The Council by the order dated 06.06.2014, however, dropped the proceedings of the claim petition on the ground that there is no reconciliation between the parties and that the petitioner had failed to fulfill the conditions of the contract by not getting the Acceptance Test of the BSNL. Aggrieved, the petitioner approached this Court through Writ petition no. 64726 of 2014 (M/S Meeraj Industries Vs. M/S ITI Ltd. GSM Project & Another) which was disposed of by this Court by order dated 2.12.2014 with a direction that if the conciliation had failed, the Council ought to have referred the matter to arbitration under the Arbitration and Conciliation Act, 1996. A further direction was given that if the petitioner submitted a representation before the Respondent no.2 within 8 weeks, the Respondent no. 2 shall consider the same and pass appropriate orders, in accordance with law. The impugned order was directed to be subject to any final order which may be passed by the Facilitation Council.
In pursuance of the order of the High Court, the Facilitation Council passed an order on 20.2.2015 directing the Respondent no. 1-M/s ITI Ltd. to pay Rs. 7,79,701/- for the supply of 30+1 Diesel Generator sets within 60 days. A copy of the order dated 20.2.2015 has been filed as Annexure-4 to the writ petition. The Respondent no. 1 then paid the amount of Rs. 7,79,701/- but did not pay the interest. The petitioner again approached the Facilitation Council through an Application under Section 16 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as 'the Act, 2006'). This Application of the petitioner has now been rejected by the impugned orders on the ground that the petitioner has accepted the delayed payment.
We find that the petitioner in his initial claim itself had claimed interest in his application dated 4.7.2012, Annexure-2 to the writ petition on delayed payment. The Council also in its order dated 20.2.2015 had directed that in case the payment is not made within 60 days, the Respondent no.1 was liable for payment of interest. It is not in dispute that payment was made to the petitioner after 87 days. The Respondent no.2 has rejected the claim of the petitioner for grant of interest by the impugned orders on the ground that petitioner has accepted the delayed payment.
We are of the opinion that the view taken by the respondents in the impugned order is thoroughly misconceived. Acceptance of late payment does not imply or lead to an inference that the petitioner has forgone his claim to interest particularly when in his application dated 4.7.2012 he had claimed interest and interest was also awarded by the Council in its order dated 20.2.2015. Section 16 of the Act, 2006 also provides for payment of interest on late payment at three times of the Bank Rate notified by the Reserve Bank. Section 16 reads as under:-
"16. Date from which and rate at which interest is payable.—Where any buyer fails to make payment of the amount to the supplier, as required under section 15, the buyer shall, notwithstanding anything contained in any agreement between the buyer and the supplier or in any law for the time being in force, be liable to pay compound interest with monthly rests to the supplier on that amount from the appointed day or, as the case may be, from the date immediately following the date agreed upon, at three times of the bank rate notified by the Reserve Bank."
Reading of the Section leaves absolutely no doubt that payment of interest on late payment of dues is contemplated in the Act itself and the rate is also prescribed as three times the Bank Rate as notified by the Reserve Bank. Therefore, in the facts and circumstances of the case, the impugned orders dated 15.09.2015 and 07.01.2016 cannot survive and are accordingly, quashed.
We allow the writ petition and direct the Respondent no.1- M/s ITI Ltd. GSM Project, Pune to pay interest to the petitioner on the late payment of his dues at the rate as prescribed in Section 16 of the Act, 2006 by 30.3.2019.
The petitioner shall communicate the certified copy of this order to the Respondent no.1 within one week from today.
Order Date :- 30.1.2019 Kirti