Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 562 of 2019 Petitioner :- M/S Vsn Infratech Pvt. Ltd.
Respondent :- General Manager, Hindustan Aeronautics Limited Avionics Division And Another Counsel for Petitioner :- Vishal Shukla,Abhishek Srivastava
Hon'ble Chandra Dhari Singh,J.
Heard learned counsel for the petitioner and learned counsel for the respondents and perused the record.
The writ petition is filed for issuance of order or direction in the nature of certiorari calling for the records of the case and quash the order dated 28.11.2018, passed by the Commercial Court Kanpur Nagar in Misc. Case No. 54/70/2017 (M/s V. S. N. infratech Vs. General Manager H. A. L.), orders dated 25.03.2015 and 27.09.2016, passed by the respondent No. 2-
U.P. State Micro & small Enterprises Facilitation Council Directorate of Industries Office (Facilitation Cell).
It is further prayed that an order or direction in the nature of mandamus commanding the respondent No. 1- General Manager Hindustan Aeronautics Kimited Avionics Division, Korwa Amethi District- Chhatrapati Shahiji Maharaj Nagar (Now Amethi) U.P., to release the amounts as prayed in Claim Petition No. 41 of 2014.
The brief facts of the case are that the petitioner is a Micro Scale Company providing services relating to construction, maintenance and repair to other parties including respondent No. 1 on contract basis and is governed by Micro Small & Medium Enterprises Development Act, 2006 (hereinafter refer as "Act 2006").
The petitioner provided services to the respondent No. 1 in accordance with the work orders No. 1155201 dated 07.09.2011 and 1155202 dated 07.09.2011. In compliance of the said work orders, the petitioner executed works and during the progress of so executing the work under the work order No. 1155201 dated 07.09.2011, the petitioner submitted running bills amounting RS. 84,56,955/- out of which 65,42,329/- were paid to the petitioner and remaining Rs. 19,14,626/- were deducted towards statutory recoveries of Rs. 12,18,061/- and Rs. 6,96,565/- as penalty. Similarly, under the work order No. 1155202, the petitioner submitted running bills of Rs. 24,94,929/- out of total prices of Rs. 25,79,145. Against such bills, the petitioner received Rs. 20,58,869/- in addition to refund of E.M.D. Rs. 90,033/-. Thus after the statutory deduction of Rs. 2,42,624/- and amount of Rs. 19,34,361/- has been retained by the respondent No. 1 as penalty. The Misc. Case No. 41 of 2014 was filed before the respondent No. 2 against withholding the aforesaid amount Rs. 6,96,565/- and 19,34,464/- as penalty on the ground that the work was allegedly completed with the delay due to unavoidable circumstances and written statement were filed before respondent No. 2.
The respondent No. 2 recorded the finding that the extension of the period of completion of work is the sole discretion of respondent No.1 and no extension was allowed to the petitioner. Hence, the respondent was totally justified in imposing penalty for delay in completing the work. The date on hearing was fixed on 25.03.2015 before the Chairman of respondent council/respondent No. 2 and vide Award dated 25.03.2015 the proceedings were dropped by the respondent No. 2 and the said award was signed on 27.04.2015. It is submitted that said award was allegedly received by the petitioner on 14.05.2015 and on the basis of the Award dated 25.03.2015 (allegedly shown as signed on 27.04.2014), the petitioner moved an application for the Additional Award under Section 33 (4) of the Arbitration and conciliation Act, 1996 on 28.05.2015. In the said application the petitioner sought relief and prayed for release of RS. 8,90,001/- and 40,24,588/- as shown in the application. The application under Section 33 (4) of Arbitration and Conciliation Act, 1996 was dismissed on the technical ground of limitation. The said application was dismissed by respondent No.2 on the ground of maintainability. The respondent No. 2 also observed that for the purpose recourse to Section 34 of Arbitration and Conciliation Act, 1996 was filed on 27.12.2016 within the period of limitation prescribed thereof. The petitioner filed the petition under Section 34 of Arbitration and Conciliation Act, 1996 vide order dated 28.11.2018, the learned Commercial Court Kanpur Nagar rejected the petition on the ground that the petition 4 (Kha) under Section 34 of Arbitration and Conciliation Act, 1996 is barred by limitation.
Learned counsel for petitioner submitted that the order passed by the Commercial Court Kanpur Nagar is illegal and perverse and unjustified. The impugned order dated 28.01.2018 passed in the very mechanical way and arbitrary manner without considering the arguments advanced by the petitioner as well as the material on record.
Learned counsel for the petitioner further submitted that the Commercial Court has rejected while only on the ground of limitation. The impugned orders deserves to be set aside.
I have heard learned counsel for the petitioner and perused the record.
The petition of the petitioner is time barred as per Section 34 of Arbitration and Conciliation Act, 1996. An application for setting aside of any order, may not be made after lapse of three months from the date.
In the instant case for additional award petitioner filed an application under Section 33 sub-clause 4 before Arbitral Tribunal to make the arbitrary award as to claim presented in the arbitral proceedings which was rejected by respondent No.2- U.P. State Micro & Small Enterprises Facilitation Council.
If the condoning of the period of limitation starts from 27.04.2015 i.e. the date on which the actual arbitrary award was mentioned then the limitation period of three months elapsed as the present petition is filed on 27.12.2016.
In view of the above facts and circumstances, the present petition is admittedly not filed within the limitation period and, therefore, there is no illegality in the order impugned.
I do not find any merit in the submission advanced by the petitioner as well as the grounds made in the petition. Hence, the writ petition is devoid of any merit and is, accordingly, dismissed.
Order Date :- 29.1.2019 Sweety