COMMERICAL ARBITRATION PETITION
NEDUMPARA & NEDUMPARA
Advocates
101, Gundecha Chamber, Nagindas Master Road, Fort, Mumbai- 400 001
e-mail: nedumparaassociates@gmail.comMob no.:9820535428/ 9920398035
IN THE HIGH COURT JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERICAL ARBITRATION PETITION NO. (L) 20143 OF 2023
SIEMENS FINANCIAL SERVICES PVT LTD. ...PETITIONER
V.S
SATIATE ENGINEERING (INDIA) PVT LTD.
& ORS RESPONDENTS
PRAECIPE / APPLICATION OF THE RESPONDENT NO. 1 FOR RECALL OF ORDER DATED 31.08.2023 PRONOUNCED IN THE OPEN COURT, BUT PROBABLY NOT TYPED, SIGNED, AUTHENTICATED AND CERTAINLY NOT UPLOADED.
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The Instant Applicant/Respondent No. 1 in the captioned Arbitration Application questioned the maintainability of the instant Arbitration Petition filed under Section 9 of the Arbitration & Conciliation Act, 1996, at the hands of the Siemens Financial Services Pvt Ltd., on the ground that the instant Applicant being a registered MSME is entitled to the protection of the Notification No. SO 1432 (E) dated 29.05.2015 of the Central Government under Section 9 of the MSMED Act 2006, and therefore no recovery proceedings by secured/unsecured creditors, operational creditors by any name whatsoever, nay, including lessors, shall lie. In fact, absolute protection is enjoyed by the instant Applicant from all sorts of recovery action under the various enactments including SARFAESI Act, 2002, Insolvency & Bankruptcy Code 2016, the Negotiable Instruments Act, 1881 and the Payments & Settlement Systems Act 2007, except as contemplated in the said Notification.
2. The Instant Applicant/Respondent No. 1 has instituted Writ Petition No. WPL/19661/2023 before this Court asserting the rights as aforesaid and has also sought a declaration to that effect. A batch of Writ Petitions, namely, WP/4620/2022 & others seeking the very same reliefs were finally heard and adjourned sine die for pronouncement of judgement on 09.08.2023.
3.The aforesaid Writ Petition No. WPL/19661/2023 of the instant Applicant was also part of the aforesaid batch of Petitions. However, by order dated 17.08.2023 it stands adjourned to 05.09.2023. In other words, while a Division Bench of this Court headed by Justice B.P. Colabawalla is in seisin of the validity or otherwise of the aforesaid contention/preliminary objection raised by the instant Applicant and others similarly situated, this Court proceeded to adjudicate upon the validity of the same, nay, has reject it. The finding of this Court is undoubtedly a prima facie one and certainly not final and binding. However, based on such a prima facie finding, even when the Division Bench is already in seisin of the matter, this Court has allowed the NBFC to remove the machinery which is in the custody of the instant Applicant/Respondent No. 1.
4. In short, an MSME is left to die, being deprived of the very machinery without which the instant Applicant cannot carry on the manufacturing process.
5.This Court relying on the Judgement dated 02.12.2023 in Alexis Business Solutions Pvt Ltd. & Ors v/s The Board of Directors of the Aditya Birla Finance Limited and Ors. [MANU/MH/4847/2022] held that MSMEs are not entitled to the benefits of the said Notification. Furthermore, this Court did so without recording the repeated submissions of the instant Applicants Counsel that that Judgment in Alexis Business Solutions (Supra) did not constitute to be a binding precedent. The Court did not at all arrive at any authoritative finding in that judgement. The said Judgement at the best is an authority only for the limited preposition that Alexis Business Solution is of unworthy character and a bad entity which does not deserve any equitable relief. In fact, Shri Mathews J Nedumpara, Counsel for the instant Applicant, expressly brought to the notice of the Court that, in paragraph 20 of the said Judgement, this Court had expressly stated so in unmistakable terms. To quote Para 20 We had already observed that we are not inclined to examine the legal challenges raised at the behest of the Petitioners.... The instant Applicant is afraid to say that this Court had neither the patience to listen to the said contention nor to record the same, resulting in avoidable, manifest injustice to the instant Applicant.
6. To err is human. Courts too err, but there is always a means of correction. When an order is pronounced, signed and uploaded, an Application for Recall / an Appeal will lie. In the instant case, that stage has not been reached. The order is yet to be uploaded/authenticated. As the Supreme Court has held in the Surinder Singhs case there is a kind of locus poenitentiae even after an order is pronounced in the open court. The Court is competent, nay, duty bound to correct an error or manifest deficiency or illegality in an order which was pronounced in the open Court but not been typed, signed/authenticated. The only limitation is that the Court should do so after hearing both the parties.
7. Apart from the deficiencies/errors as pointed above, this Court committed another error, namely, that it did not record the plea of the instant Applicant that the protection which it has sought under the MSMED Act, 2006, and the Notification dated 29.5.2015 is not confined to recovery action by Banks or Financial institutions alone. To repeat, the protection sought is not merely confined to SARFAESI Act, 2002, the RDDB Act 1993, but an absolute protection against all forms of recovery or action against an MSME by any person or entity whatsoever, no matter whether he is an operational creditor or a lessor or licensor. If the machinery used by the instant Applicant to manufacture its products are allowed to be taken away under the premise that the claim is for enforcement of the rights of a lessor and not a secured creditor, then the very purpose of the MSMED Act 2006 and the Notification is defeated. The province of a Judge is to give effect to an Act of Parliament and not to defeat it.
Hence, the present Praecipe/Application for recall of the order which was dictated in the open court on 31st August 23 and for further hearing.
NEDUMPARA & NEDUMPARA
Advocates for the Applicant/Respondent
Advocates for the Applicant.