w w w . L a w y e r S e r v i c e s . i n



M/s National Printers, proprietor Apex Products Private Limited through its Director Sri Krishnan Kant Kedia v/s The State of Jharkhand, through its Principal Secretary, HRD-cum-State Project Director, Jharkhand Education Project Council & Others


Company & Directors' Information:- APEX PRODUCTS PRIVATE LIMITED [Active] CIN = U21098JH2008PTC013421

Company & Directors' Information:- APEX CORPORATION INDIA PRIVATE LIMITED [Active] CIN = U51109WB2007PTC114141

Company & Directors' Information:- P P PRODUCTS PVT LTD [Active] CIN = U32305WB1991PTC051091

Company & Directors' Information:- S K B PROJECT (INDIA) PRIVATE LIMITED [Active] CIN = U45202MP2008PTC020457

Company & Directors' Information:- K K PRODUCTS LIMITED [Active] CIN = U31300DL1991PLC045521

Company & Directors' Information:- K B PRODUCTS PRIVATE LIMITED [Active] CIN = U51909MH2007PTC169627

Company & Directors' Information:- B N KEDIA & COMPANY PRIVATE LIMITED [Active] CIN = U45203WB1987PTC043438

Company & Directors' Information:- K G PRODUCTS PRIVATE LIMITED [Active] CIN = U51909PB2007PTC031201

Company & Directors' Information:- JHARKHAND PRINTERS PRIVATE LIMITED [Active] CIN = U22219WB2007PTC113819

Company & Directors' Information:- S S P PRODUCTS PRIVATE LIMITED [Active] CIN = U22110WB1974PTC210201

Company & Directors' Information:- N. A. P. PRINTERS PRIVATE LIMITED [Active] CIN = U22219WB2007PTC115897

Company & Directors' Information:- M L B PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC040990

Company & Directors' Information:- KANT & CO LTD [Active] CIN = U17232WB1952PLC020773

Company & Directors' Information:- M M PRODUCTS LIMITED [Strike Off] CIN = U28994DL1992PLC050955

Company & Directors' Information:- M P K PRODUCTS PVT LTD [Active] CIN = U26919AS1994PTC004183

Company & Directors' Information:- G K PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC043260

Company & Directors' Information:- N R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51109AS1998PTC005561

Company & Directors' Information:- APEX (INDIA) LTD [Active] CIN = U63090WB1982PLC035478

Company & Directors' Information:- C L PRODUCTS INDIA LIMITED [Active] CIN = U51909DL2002PLC116975

Company & Directors' Information:- K. S. A. PRODUCTS PRIVATE LIMITED [Active] CIN = U51220PB2014PTC039023

Company & Directors' Information:- H K PRINTERS PRIVATE LIMITED [Active] CIN = U22219MH2000PTC125456

Company & Directors' Information:- A J PROJECT PRIVATE LIMITED [Active] CIN = U70101WB2006PTC110040

Company & Directors' Information:- D. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U52320DL2011PTC213508

Company & Directors' Information:- KEDIA (INDIA) PRIVATE LIMITED [Active] CIN = U52520TG1980PTC002771

Company & Directors' Information:- M B S PROJECT PRIVATE LIMITED [Strike Off] CIN = U45209GJ2000PTC038147

Company & Directors' Information:- R S PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036603

Company & Directors' Information:- R R PRODUCTS PRIVATE LIMITED [Active] CIN = U24249HR1999PTC034291

Company & Directors' Information:- I G PRODUCTS PRIVATE LIMITED [Active] CIN = U74999WB2012PTC183503

Company & Directors' Information:- T M PRINTERS PRIVATE LIMITED [Active] CIN = U42110MH2005PTC157894

Company & Directors' Information:- I G PRINTERS PRIVATE LIMITED [Active] CIN = U22219DL2004PTC128202

Company & Directors' Information:- K C PROJECT INDIA PRIVATE LIMITED [Active] CIN = U55101DL1997PTC088558

Company & Directors' Information:- J S R PRODUCTS PRIVATE LIMITED [Active] CIN = U31908DL2007PTC170841

Company & Directors' Information:- C F C PRODUCTS PRIVATE LIMITED [Active] CIN = U28129DL1998PTC095531

Company & Directors' Information:- A. H. PROJECT PRIVATE LIMITED [Active] CIN = U45400WB2010PTC141970

Company & Directors' Information:- M S PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC055125

Company & Directors' Information:- B R PRODUCTS PRIVATE LIMITED [Active] CIN = U31909DL1999PTC100727

Company & Directors' Information:- S P B PRODUCTS LIMITED [Active] CIN = U51909DL1996PLC082631

Company & Directors' Information:- V S R PRINTERS PRIVATE LIMITED [Active] CIN = U22219DL1996PTC083262

Company & Directors' Information:- G K D PRODUCTS PRIVATE LIMITED [Active] CIN = U15431WB1998PTC086840

Company & Directors' Information:- M B R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17111WB1993PTC060806

Company & Directors' Information:- P D PRODUCTS PRIVATE LIMITED [Active] CIN = U23201DL2000PTC108462

Company & Directors' Information:- S K M PRODUCTS PRIVATE LIMITED [Active] CIN = U18101DL1998PTC093415

Company & Directors' Information:- H R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1978PTC009183

Company & Directors' Information:- V S PRODUCTS PRIVATE LIMITED [Active] CIN = U36900DL2008PTC185445

Company & Directors' Information:- H E F PROJECT PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1995PTC069794

Company & Directors' Information:- H K PRODUCTS LIMITED [Active] CIN = U51900GJ2015PLC085457

Company & Directors' Information:- A AND A PRINTERS PVT LTD [Active] CIN = U22212KL1970PTC002297

Company & Directors' Information:- S R K PRODUCTS PRIVATE LIMITED [Active] CIN = U51221KA1989PTC010032

Company & Directors' Information:- G M PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC044687

Company & Directors' Information:- V T N PRODUCTS PVT LTD [Active] CIN = U51109WB1996PTC080094

Company & Directors' Information:- B J S PROJECT PRIVATE LIMITED [Active] CIN = U74900WB2015PTC206605

Company & Directors' Information:- W S T Q PRODUCTS PRIVATE LIMITED [Active] CIN = U31300DL1999PTC102655

Company & Directors' Information:- J D PRINTERS PRIVATE LIMITED [Active] CIN = U22130MH2003PTC140471

Company & Directors' Information:- G S T PRODUCTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31909TN2006PTC059575

Company & Directors' Information:- S M P PRODUCTS PRIVATE LIMITED [Active] CIN = U25200DL2009PTC190965

Company & Directors' Information:- S N S PRODUCTS PRIVATE LIMITED [Active] CIN = U15490DL2005PTC142749

Company & Directors' Information:- U B PRODUCTS PRIVATE LIMITED [Active] CIN = U51224DL2002PTC116457

Company & Directors' Information:- A AND A PRODUCTS PRIVATE LIMITED [Active] CIN = U21098MP2004PTC017128

Company & Directors' Information:- V J PRODUCTS PRIVATE LIMITED [Active] CIN = U36900GJ2011PTC065252

Company & Directors' Information:- PROJECT Q AND S PRIVATE LIMITED [Active] CIN = U74999HR2020PTC086437

Company & Directors' Information:- S AND A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51311DL1991PTC042938

Company & Directors' Information:- S AND G PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL1982PTC014843

Company & Directors' Information:- B P PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24241WB1999PTC089499

Company & Directors' Information:- D AND P PRODUCTS LIMITED [Amalgamated] CIN = U99999MH1951PTC008422

Company & Directors' Information:- S D H PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U55204KA2006PTC040734

Company & Directors' Information:- V M PRODUCTS PRIVATE LIMITED [Active] CIN = U24100DL2014PTC266679

Company & Directors' Information:- E C A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U27209TN1987PTC014022

Company & Directors' Information:- APEX INDIA PVT LTD [Strike Off] CIN = U51495WB1980PTC032617

Company & Directors' Information:- G T PRINTERS PVT LTD [Strike Off] CIN = U22219WB1987PTC043065

Company & Directors' Information:- N K PRINTERS PVT LTD. [Strike Off] CIN = U22219WB1989PTC046795

Company & Directors' Information:- M M PRINTERS PVT LTD [Strike Off] CIN = U22219WB1991PTC051877

Company & Directors' Information:- AMP PROJECT PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164997

Company & Directors' Information:- D D PRINTERS PRIVATE LIMITED [Under Process of Striking Off] CIN = U22219DL2005PTC132325

Company & Directors' Information:- R S PRINTERS PRIVATE LIMITED. [Strike Off] CIN = U22211DL1986PTC025745

Company & Directors' Information:- S R PRINTERS PVT LTD [Strike Off] CIN = U22219PB1994PTC015415

Company & Directors' Information:- G S PRODUCTS LIMITED [Strike Off] CIN = U25191UP1989PLC010483

Company & Directors' Information:- S P PRINTERS PRIVATE LIMITED [Strike Off] CIN = U99999MH1998PTC116132

Company & Directors' Information:- M K PRODUCTS & PRINTERS PVT LTD [Strike Off] CIN = U00285BR1990PTC003943

Company & Directors' Information:- S B PRINTERS PRIVATE LIMITED [Active] CIN = U22211TN1978PTC007519

Company & Directors' Information:- A R K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24231UP1978PTC004606

Company & Directors' Information:- S. M. PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17299DL1966PTC004634

Company & Directors' Information:- K D PROJECT PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209307

Company & Directors' Information:- S D PRINTERS PRIVATE LIMITED [Active] CIN = U22110MH2002PTC134690

Company & Directors' Information:- R. M. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U74999MH2017PTC298120

Company & Directors' Information:- D R V PRINTERS PRIVATE LIMITED [Strike Off] CIN = U22110DL1999PTC102854

Company & Directors' Information:- B C D PRINTERS PRIVATE LIMITED [Strike Off] CIN = U65992DL1996PTC083368

Company & Directors' Information:- P & Q PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL2014PTC269162

Company & Directors' Information:- E PROJECT PRIVATE LIMITED [Active] CIN = U72300HR2015PTC057142

Company & Directors' Information:- M C V PRINTERS PRIVATE LIMITED [Dormant under section 455] CIN = U22210KL2011PTC028994

Company & Directors' Information:- H T PRODUCTS PVT LTD [Strike Off] CIN = U29266WB1981PTC033424

Company & Directors' Information:- S N PRINTERS PRIVATE LIMITED [Strike Off] CIN = U92490DL1993PTC052615

Company & Directors' Information:- R V S PRINTERS PVT LTD, [Strike Off] CIN = U22110MP1984PTC002560

Company & Directors' Information:- J B PRINTERS PVT LTD [Strike Off] CIN = U22219WB1964PTC026005

Company & Directors' Information:- PRODUCTS (INDIA) LTD [Strike Off] CIN = U31901WB1961PLC024991

Company & Directors' Information:- NATIONAL PRODUCTS CORPORATION PRIVATE LIMITED [Strike Off] CIN = U74999TN1945PTC001782

Company & Directors' Information:- M PRODUCTS & CO PVT LTD [Strike Off] CIN = U51909WB1956PTC023215

Company & Directors' Information:- NATIONAL PRINTERS LIMITED [Strike Off] CIN = U99999MH1946PLC010363

Company & Directors' Information:- PRINTERS PVT. LTD. [Strike Off] CIN = U99999DL2000PTC000087

Company & Directors' Information:- PRINTERS PVT LTD [Strike Off] CIN = U22219HR1932PTC000085

    W.P.(C) No. 3649 of 2016 With I.A. No. 2457 of 2019

    Decided On, 16 May 2019

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE SUJIT NARAYAN PRASAD

    For the Petitioner: Rahul Lamba, Varsha Ramsisaria, Advocates. For the Respondents: Sunita Kumari, A.C. to S.C(L&C)-III.



Judgment Text


1. The writ petition is under Article 226 of the Constitution of India, whereby and where-under, the order passed in Case No.JHMSEFC 2/2016 dated 04.03.2016, whereby and where-under, the claim as has been agitated by the petitioner for adjudication regarding the amount of interest over the principal amount has been held to be not maintainable and therefore, the claim has rejected at admission stage.

2. It is the case of the petitioner that earlier to the instant writ petition, one other writ petition was filed being W.P.(C) No.1702 of 2014 praying inter-alia therein:-

"(i) For issuance of an appropriate writ or writs in the nature of mandamus directing upon the respondents to make payment of the admitted dues of the petitioner in relation to award of contract for printing and supply of C.C.E. Report Card for all children enrolled in Elementary schools from class-I to VIII for Academic Session 2012-13 pursuant to work order issued in favour of the petitioner vide letter no.QU/48/2013/226 dated 08.02.2013 in terms of notice inviting tender published vide letter no.JEPC/QU/06/2008/2346 dated 06.12.2012 issued by respondent no.1 inasmuch as in spite of completing the work order for printing and supplying of C.C.E. Report Card in terms of the work order dated 08.02.2013 and the agreement executed between the respondents and the petitioner, the payments are not being released without assigning any reason as a consequence of which the petitioner is not able to procure fresh tender due to paucity of funds;

(ii) For issuance of an appropriate writ, order or direction for declaration that the petitioner is entitled to get payment of Rs. 3,80,05,000/- for the work done by the petitioner for printing and supplying of C.C.E. Report Card as per work order issued in favour of the petitioner vide letter no.QU/48/2013/226 dated 08.02.2013 inasmuch as the contract executed between the petitioner and the respondents is the concluded contract between the parties and as such, there is no justification for not releasing the legitimate dues of the petitioner;

(iii) For issuance of an appropriate writ, order or direction upon the Respondents for making payment of compound interest (with monthly interests) @ 12% on the amount of Rs. 3,80,05,000/- due to the supplier from the date immediately following the date agreed upon under the provisions of Section 4 and 5 of "The Interest On Delayed Payments To Small Scale And Ancillary Industrial Undertakings Act, 1993" for printing and supply of C.C.E. Report Card for the Academic Session 2012-13 pursuant to work order issued vide letter no.QU/48/2013/226 dated 08.02.2013 inasmuch as Respondents have accepted the supply of C.C.E. Report Card delivered to it in each district of the State of Jharkhand and the same has been utilised under the direction of the respondents and as such, the acceptance and enjoyment would afford a valid basis for claim of compensation against the Respondents"

3. The respondents have appeared and filed counter affidavit wherein, it has been brought to the notice of this Court that the principal amount has been paid and the claim of interest has been disputed upon which, the petitioner has filed one interlocutory application being I.A.No.6515 of 2015 praying therein for withdrawal of the writ petition on the ground that since the principal amount has been paid, therefore, the claim regarding the interest will be agitated before the Council, since the same has been disputed in the counter affidavit.

This Court vide order dated 17.12.2015 has allowed to withdraw the writ petition by disposing of the interlocutory application and in pursuance thereto, the claim has been agitated by the petitioner before the Council but the same has not been decided on merit by holding therein that the claim is not maintainable and as such against such order, present writ petition has been filed.

4. It is the contention of the petitioner that although there is no condition stipulated in the agreement in respect of entitlement of the interest but even accepting that fact, question of determination of interest would be there in view of the provision of section 16 of the Micro, Small and Medium Enterprises Development Act, 2006, whereby and where-under, the statutory provision has been made that even if there is no condition pertaining to claim of the interest in the agreement, the buyers shall be liable to pay the amount of interest and as such the same needs adjudication and therefore, the claim has been agitated before the Council and as such, it ought to have been decided on merit but without doing so, the claim has been rejected at the time of admission itself holding therein that since the principal amount has been paid so there is no question of payment of interest.

5. It has been submitted that since the claim has not been adjudicated on its merit regarding payment of interest of the petitioner now the petitioner has become remediless and as such the matter needs consideration by this Court for remittance of the matter before the Council for its adjudication.

6. Mr. Krishna Murari, learned counsel appearing for the Respondent Nos.2 & 3-J.E.P.C., has vehemently opposed the submission and ground urged by the petitioner by taking following grounds:-

(i) That there is no liberty accorded by this Court while disposing of the writ petition being W.P.(C) No.1702 of 2014 which would be evident from the order dated 17.12.2015 passed thereon and as such the contention as has been raised by the petitioner that the Council has approached in pursuance to the liberty granted by this Curt in W.P.(C) No.1702 of 2014, is not factually correct.

He submits that the question to agitate the issue would only come if there would be a liberty to file a fresh suit, if granted in the earlier proceeding but since there is no liberty to that effect while disposing of the interlocutory application at the time of withdrawal of the W.P.(C) No.1702 of 2014, therefore, what order has been passed by the Council which suffers from no infirmity.

(ii) His next argument is that the petitioner as has been contended that he become remediless, he is not correct in view of section 34 of the Arbitration and Conciliation Act, 1996 which contains the provision to file an appeal against the interim award and according to him, if the impugned award would be gone across it is evident that it is adjudication on merit and therefore, the appeal will lie under section 34 of the Arbitration and Conciliation Act, 1996.

(iii) His third submission is that section 16 of the Micro, Small and Medium Enterprises Development Act, 2006 will not be applicable since there is no condition stipulated in the agreement with respect to the claim of the interest and once the parties have agreed and entered into a contract in terms of the contract will binding upon them, they cannot deviate therefrom and the same only applies over the rate of interest.

7. It has been contended by the learned counsel for the petitioner that it is incorrect to say that the petitioner has become remediless, the interest also pertains to money claim, therefore, the dispute can be raised before the competent court of civil jurisdiction for its adjudication.

8. In response, learned counsel for the petitioner submits that so far as the question of liberty granted or not by this Court in W.P.(C) No.1702 of 2014, the same can be gathered from the averments made in the interlocutory application being I.A.No.6515 of 2015 and when the writ petition has been allowed to be withdrawn by disposing of the interlocutory application which does suggest that liberty has been granted to agitate the claim before the alternative Forum for adjudication of the claim.

9. So far as the argument regarding applicability of section 34 of the Arbitration and Conciliation Act, 1996, it has been submitted that since there is no conciliation as warranted under the provision of Section 18(3) of the Act, 2006, therefore, there is no question of applicability of Section 34 of the Act, 1996 since the applicability of Section 34 would only come if there is a conciliation and adjudication therefrom and in absence thereof, the petitioner cannot be relegated before the appellate Forum as provided under Section 34 of the Act, 1996.

10. Learned counsel for the petitioner has been heard.

11. Before going into the merit of the issue, it needs to refer herein that this Court in order to dispose of the writ petition has directed the office to list this case along with the record of W.P.(C) No.1702 of 2014 which was disposed of vide order dated 17.12.2015.

12. In order to assess with respect to the issue which has been agitated by the learned counsel for the parties that as to whether at the time of withdrawing the writ petition, liberty has been granted by this Court to agitate the claim of interest before the alternative Forum available under the Act, 2006.

13. It is undisputed fact that the petitioner has supplied Report Card in terms of agreement entered in between the petitioner as well as respondent no.3.-J.E.P.C.

The petitioner after completion of the supply work in pursuance to the work order issued in his favour has raised bill for its payment and on one pretext or the other, it has been delayed which warranted the petitioner to approach before this Court by filing W.P.(C) No.1702 of 2014 and in course of its pendency, the respondent nos.2 and 3 has filed counter affidavit, wherein inter-alia the ground has been taken by admitting the principal amount as has been claimed by the petitioner and bringing to the notice, the said amount has already been paid but the claim of the interest has been denied which warranted the petitioner to file interlocutory application being I.A.No.6515 of 2015, considering the fact that the claim of the interest of the petitioner is disputed, so it needs adjudication, therefore, he has made a prayer in the interlocutory application being I.A.No.6515 of 2015 for withdrawal of the writ petition with a liberty to approach before the Council, Forum carved out in pursuance to Section 18 of the Act, 2006.

This Court while disposing of the writ petition being W.P.(C) No.1702 of 2014 has passed following order:-

"It is submitted by learned counsel for the petitioner that initially in this writ application, petitioner has prayed for payment of principal as well as the interest amount relating to contractual dues.

"It is submitted that during the pendency of this writ application, principal amount has already been paid to the petitioner. It is further submitted that so far the interest is concerned, petitioner does not want to pursue this writ application because some alternative remedy is available to him.

Therefore, by filing I.A.No.6515 of 2015, petitioner seeks permission to withdraw this writ application.

Accordingly, this writ application is permitted to be withdrawn. I.A.No.6515 of 2015 stands disposed of."

14. It is evident from the aforesaid order that this Court has considered the averments made in the interlocutory application wherein, specific prayer has been made with the pleading that since the principal amount has already been paid by denying the claim of interest, therefore, he wants to withdraw the writ petition with a liberty to file application before the Council, alternative Forum and keeping the fact into consideration, the writ petition has been permitted to be withdrawn by disposing of the interlocutory application being I.A.No.6515 of 2015.

15. It is not in dispute rather it is a settled position of law that if any litigation has been filed by a party and if there is a simplicitor withdrawal, the second litigation for the same issue is not permissible unless the leave could be granted in the earlier litigation and keeping that legal position into consideration, this Court is examining the issue as has been raised by the learned counsel for the parties.

The question of liberty is to be seen from the pleading and pleading here is a averment made in the interlocutory application being I.A.No.6515 of 2015 and therefrom it is evident that since the admitted amount has been paid in favour of the petitioner but the interest amount has been denied so the liberty to withdraw the writ petition with a liberty to approach before the alternative Forum has been made and this Court since has disposed of the interlocutory application being I.A.No.6515 of 2015 by allowing the petitioner to withdraw the writ petition it will be said to be a liberty at the time of withdrawal of the writ petition.

The matter would have been different if there could have been any interlocutory application and the writ petition would not have been withdrawn on the oral submission but the fact herein as would be evident from the material available on record of W.P.(C) No.1702 of 2014, wherein the record of the interlocutory application being I.A.No.6515 of 2015, is available.

16. In view of this factual aspect what has been contended by Mr. Krishna Murari, learned counsel appearing for the respondent nos.2 and 3, the said argument on fact is not correct, therefore, the same is rejected.

The second point has been raised regarding applicability of section 34 of the Arbitration and Conciliation Act, 1996.

It is not in dispute that the jurisdiction conferred to the High Court under Article 226 of the Constitution of India is to be invoked in case of non-applicability of any alternative remedy. Although, the said restriction is not absolute bar in invoking the jurisdiction conferred under Article 226 of the Constitution of India but it is the self-imposed restriction upon the High Court not to entertain the writ petition, if alternative remedy is available, subject to some exception i.e,. if the order is being passed without following the principle of nature justice or if the order is passed infringing the fundamental rights or if the order is passed if there is miscarriage of justice or there is jurisdictional error.

17. In the light of the aforesaid legal position, this submission/ground as has been agitated by the respondent nos.2 and 3 has been considered by this Court.

Before considering the aforesaid submission, it would be relevant to refer the provision of Section 18(3) of the Act, 2006 which reads as hereunder:-

"(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 of 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 sub-section (1) of section 7 of that Act."

18. It is evident from the aforesaid provision that before resorting to the arbitration part, there would be a conciliation to be made under the provision of Arbitration and Conciliation Act, 1996 and in case of failure in conciliation, the question of adjudication will come. Admittedly, herein there is no conciliation proceeding as warranted under the provision of Section 18(3) of the Act, 2006 rather the undisputed fact is that the respondent nos.2 and 3 in course of pendency of the writ petition being W.P.(C) No.1702 of 2014 has released the admitted principal amount denying the claim of the interest, therefore, there is no conciliation as provided under the provision of Arbitration and Conciliation Act, 1996 in terms of the provision of Section 18(3) of the Act, 2006.

19. section 34 of the Arbitration and Conciliation Act, 1996 stipulates that in case of any conciliation and if it fails, the matter would be referred before the Arbitrator by following the procedure under the provision of Arbitration and Conciliation Act, 1996 and in case of any award, if the parties are aggrieved with the arbitral award which would be assailed before the appellate Forum by invoking the jurisdiction under the provision of section 34 of the Arbitration and Conciliation Act, 1996 but since there is no arbitral award under the provision of Arbitration and Conciliation Act, 1996, therefore, there is no question of preferring of an appeal under section 34 of Arbitration and Conciliation Act, 1996.

20. Mr. Murari, has relied upon the judgment rendered in the case of Indian Farmers fertiliser Cooperative Limited v. Bhadra Products, reported in (2018) 2 SCC 534.

This Court after going across the aforesaid judgment has found that the said judgment has been delivered by the Hon'ble Apex Court keeping the fact into consideration regarding applicability of Section 34 read with Section 16 and 31(6), but as has been referred here-in-above that since there is no conciliation proceeding as warranted under the provision of Section 18(3) of the Act, 2006, therefore, on fact the judgment relied upon by the respondent, is not applicable herein.

21. The other contention has been raised by Mr. Murari, regarding non-applicability of Section 16 of the Act, 2006.

22. The contention raised by the learned counsel for the respondent nos.2 and 3 regarding invoking the jurisdiction of competent court of civil jurisdiction in a case of dispute of money claim, the said argument is having force but the question herein is that the jurisdiction of the competent court of civil jurisdiction can be invoked if there is no Forum available herein the Act, 2006 has been enacted in order to adjudicate the claim pertaining to Micro and Small Entrepreneurs and as such, when the remedy is available by-passing the aforesaid remedy asking the aggrieved to approach before the competent court of civil jurisdiction would not be proper at this stage rather if the adjudication would be done by the Forum available under the Act, 2006 and in case of any adverse decision taken therein, the same can well be agitated before the competent court of civil jurisdiction, in view of the fact that against the disputed money claim, the same is not to be adjudicated by the writ Court sitting under Article 226 of the Constitution of India.

This Court after going across the provision of Section 16 of the Act, 2006 has found that the said provision stipulates regarding the question of determination of interest, the said provision is having non substante clause even if there is no condition stipulated in the agreement, the claim of the interest would be there.

Now the question of determination since is here, therefore, this issue is not being decided by this Court leaving it open to be decided by the Council.

23. This Court, after discussing the facts as stated here-in-above and after going across the impugned order, has found that the award has been passed by referring to the provision of Section 17 of the Act, 2006 which provides for provision of recovery of amount due for any goods supplied or services rendered by the supplier, buyer shall be liable to pay the amount with interest thereon as provided under Section 16 of the Act, 2006.

24. The Council after discussing the aforesaid provision of law has come to the conclusive finding that since there is sufficient emphasis on what is amount with interest and not the amount or interest therefore, since the amount has already been paid which is to be read conjunctive with the interest therefore, the same is held to be non-maintainable and therefore, at the stage of admission itself the claim has been rejected.

The question herein is that the amount with interest or amount or interest needs an adjudication and therefore, the Council in not adjudic

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ating and rejecting the claim at the admission stage has failed in discharging the statutory duty. 25. The next question would be that if the claim as has been agitated by the petitioner has not been adjudicated, the question would be that in which Forum the same will be adjudicated. Admittedly, since section 34 of the Arbitration and Conciliation Act is not maintainable in view of the reason stated here-in-above and since the factual dispute is there, therefore, the writ petition will also not lie since the determination is to be made by appreciating the factual aspect and for that purpose, the Council has been created under the Central Legislation, therefore, keeping the fact into consideration a party cannot be made to be remediless therefore, the impugned order needs interference by this Court under Article 226 of the Constitution of India in exercise of power by issuing a writ of certiorari. 26. There is no dispute about the fact that the writ of certiorari is to be issued by the High Court depending upon certain facts as has been discussed herein in detail. The Council, since has not adjudicated the issue, it will be held to be denial of the statutory duty as casted upon it under the provision of Act 2006, and therefore, the jurisdictional error has been committed by the Council. 27. In view thereof, the impugned order dated 04.03.2016 (annexure-4) in Case No.JHMSEFC 2/2016 passed by the Jharkhand Micro, Small and Medium Enterprises Facilitation Council (JHMSEFC), is quashed. 28. In consequence thereof, the matter is remitted before the Council for adjudication of the issue regarding the claim of the petitioner pertaining to interest, the decision to that effect shall be taken by the Council after providing an opportunity of hearing to both the parties and it needs to refer herein that since both the parties are here, therefore, they are directed to cooperate with the proceeding so that the matter be adjudicated at an early date preferably within a period of four months. 29. Accordingly, the writ petition stands disposed of. 30. In consequence thereof, interlocutory application being I.A. No.2457 of 2019 also stands disposed of.
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