AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 928
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.... sum than the one provided in section 36(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act of 1996"). 3. It is pertinent to mention that the award was passed under the Act of 2006 by which the appellant was directed to pay awarded sum to respondent No.3 i.e. Lakshmi Engineering Industries (Bhopal) Pvt. Ltd. The award was passed by the Madhya Pradesh Facilitation Council for a sum of Rs. 1,15,77,630/- along with an amount of Rs. 1,04,96,746/- towards interest up to 10.1.2013. Payment of actual amount of interest was @ three times of the bank rate as notified by the Reserve Bank of India to be paid within 30 days of the award. The award was passed on 15.1.2014. 4. The Collector, Noida, initiated recovery of the amount as per letter dated 2.4.2016 issued by the Madhya Pradesh Micro and Small Enterprises Facilitation Council under the Rules. The recovery citation was served upon the appellant on 20.4.2016 purported to be one under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. Another citation was received by the appellant on 16.5.2016 which was issued on 20.4.2016. Thereafter, appellant filed a writ petition before the Allahabad....
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....r Order 21 Rule 26 of the CPC. Order 21 Rule 58 of the CPC provides for an objection to attachment of property and the procedure is provided under Order 21 for adjudication of objections. In case objection is not entertained, there is a right to file a suit as provided in Order 21 Rule 58(1) of the CPC. Elaborate procedure is provided under Order 21 Rules 66, 69, 89 and 92 of the CPC with respect to sale, if required. The remedy provided under Rule 5 of the Rules does not contain the aforesaid safeguards and the amount can be recovered outrightly as arrears of land revenue. Thus, the remedy is harsh under Rule 5 and thus could not have been resorted to. It was also strenuously urged on behalf of the appellants that in the four States only, i.e., West Bengal, Madhya Pradesh, Punjab & Haryana and Andhra Pradesh recovery is made as per the CPC provided under section 36 of Act of 1996. Thus, there is a discriminatory provision made by the four States which is quite arbitrary and impermissible. States could not have enacted a provision in derogation to what is contained in the Central legislation. 7. It was contended on behalf of the respondents that the rule has been framed within the....
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.... nature. It encompasses any other matter which is to be and may be prescribed under the Act, and the Rule is required to be laid in the House of the State Legislature. 10. The Act of 2006 has been enacted for the benefit of micro, small and medium enterprises. The object of the Act is to provide for facilitating the promotion and development, enhancing the competitiveness of micro, small and medium enterprises and the matters connected therewith or incidental thereto. Section 18 of the Act of 2006 is extracted hereunder : "18. Reference to Micro and Small Enterprises Facilitation Council.-(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under Section 17, make a reference to the Micro and Small Enterprises Facilitation Council. (2) On receipt of a reference under sub-section (1), the Council shall 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 ....
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...., 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 sub-section (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)." No doubt about it that by virtue of the provisions contained in section 18(3) of the Act of 2006, the provisions contained in section 36 of the Act of 1996 are clearly applicable and it is permissible to exe....
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.... statute even if inconsistent, would continue to be in operation until one of them is elected for application. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them, for commencing an action. As no action under section 40 was taken, this Court held that section 48 was available to the appellant for recovery of the loss. This Court in Bihar State Cooperative Marketing Union Ltd. (supra) has laid down thus : "6. Validity of plural remedies, if available under the law, cannot be doubted. If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly. In the present case there is no such problem as no steps under Section 40 were ever taken by the appellant. The provisions of Section 48 must, therefore, be held to be available to the appellant for recovery of the loss. 7. Our view that a matter which may ....
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....ose of the Act. The Act was held not to envisage a situation of conflict, and therefore, the edges were required to be ironed out to read those provisions of the Act which were slightly incongruous, so that all of them are read in consonance with the object of the Act, which is to bring about orderly and planned development. It should not be lightly assumed that "Parliament had given with one hand what it took away with the other". The provisions of one section of a statute cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them". The same rule applies in regard to sub-sections of a section. In the words of Gajendragadkar, J. "The sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy". As stated by Venkatarama Aiyer, J., "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonio....
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....e legislation. While considering presumption in favour of such legislation it would be necessary to see that the person aggrieved gets a fair deal at the hands of those vested with power under such legislation. This Court also considered the question whether the SARFAESI Act was uncalled for and a superimposition of an undesired law in the light of operation of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in the field. This Court has laid down that given the level of indebtedness and NPAs on the balance-sheets of banks and financial institutions, the time taken for recovery of debts via the civil courts, the importance of liquid and solvent banks and financial institutions to economic progress, especially in the present day global economy with a need to give up old and conventional methods of financing and recovery of debts, and the failure of the 1993 Act to bring about the desired results, it could not be said that a step taken towards securitization of debts and to evolve means for faster recovery of NPAs was not called for. This Court has also laid down that primacy is to be given to public interest over private interest. Thus, the provision of recove....
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....out the policy laid down by the Acts as part of the Administrative Law. The Legislature has to lay down the legislative policy and prin-ciple to afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf (See: Vasantlal Maganbhai Sanjanwala v. The State of Bombay and Others, [1961] 1 SCR 341. This Court in another case, namely, The Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, AIR (1968) SC 1232 as also in an earlier decision in In Re : The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947, and The Part C States (Laws) Act, 1950, [1951] SCR 747 has laid down the principle that the Legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act concerned. 25. In Avinder Singh v. State of Punjab, [1979] 1 SCC 137, Krishna Iyer, J. laid down the following tests for valid delegation of legislative power. These are : "(1) the legislature cannot efface itself : (2) it cannot delegate the plenary or the essential legislative fu....
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....el wider than the object of the legislature. A delegatee cannot extend the scope or general operation of the enactment but power is strictly ancillary. This Court has laid down thus: "13. It may be noted that under Paragraph 8, the Chairman or the Speaker of a House is empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules being delegated legislation are subject to certain fundamental factors. Underlying the concept of delegated legislation is the basic principle that the legislature delegates because it cannot directly exert its will in every detail. All it can in practice do is to lay down the outline. This means that the intention of the legislature, as indicated in the outline (that is the enabling Act), must be the prime guide to the meaning of delegated legislation and the extent of the power to make it. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate's function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment....
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....nd without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters". Interpreting such provisions, this Court in a number of decisions has held that where power is conferred to make subordinate legislation in general terms, the subsequent particularization of the matters/topics has to be construed as merely illustrative and not limiting the scope of the general power. Consequently, even if the specific enumerated topics in Section 23(1-A) may not empower the Central Government to make the impugned rule (Rule 44-I), making of the rule can be justified with reference to the general power conferred on the Central Government under Section 23(1), provided the rule does not travel beyond the scope of the Act. "But even a general power to make rules or regulations for carrying out or giving effect to the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the Act. Therefore, such a power 'will not support attempts to widen the purposes of the Act, to add new and different means to carrying them out, to depart from or vary its terms'." ....
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....of view of the Government. The ordinary reasonable man would say, when the stakes are heavy and serious charge of evasion of income-tax are made against him, why one person similarly placed should have the advantage substantially of the procedure prescribed by the Indian Income Tax Act, while another person similarly situated be deprived of it. The ratio of said decision has no application to the instant case, provision in question being remedial one and no substantial or valuable privilege is being deprived of by Rule 5. It is only procedural provision and intends to simplify the procedure of execution, once arbitral award is passed. 27. Reliance has also been placed on Shree Meenakshi Mills Ltd., Madurai etc. v. Sri A.V. Visvanatha Sastri & Anr. AIR 1955 SC 13 in which this Court has laid down thus : "3. The procedure prescribed by the Act for making the investigation under its provisions is of a summary and drastic nature. It constitutes a departure from the ordinary law of procedure and in certain important aspects is detrimental to the persons subjected to it and as such is discriminatory. The substantial differences in the normal procedure of the Income Tax Act for catchin....