1) The petitioner has preferred the instant petition seeking review/recall of the order dated 12.06.2023 passed in WPC No. 1481 of 2023, whereby the Writ Petition filed by the petitioner was dismissed on two grounds:-
(i) it is hit by constructive res judicata, and
(ii) there is an alternative remedy.
2) Facts of the case as stated in the Writ Petitions are as under:-
A. On 23.05.2012, the petitioner along with its other consortium members, entered into an agreement with National Mineral Development Corporation Limited (for short, ‘NMDC’) for the works of supply of Fabricated Building Steel Structures including Sheeting & Glazing and Receipt, Unloading, Storage and Transportation from Stores to Erection Site, Erection including Supervision etc. relating to Steel Melting Shop (Package No-06) for 3.0 MTPA NMDC integrated steel plant at Nagarnar, Chhattisgarh, for a value of approx. Rs.643.77 Crores.
B. Pursuant to the above-stated agreement, on 29.12.2012 the petitioner placed a letter of award of contract (for short, ‘LAC’) to the M/s Core Fab/respondent No.2, for supply of fabrication and transportation of 2500 MT quantity of E-250 and E-350 grade building steel structure for Steel Melting Shop (Package No.06) for 3.0 MTPA NMDC, Integrated steel plant at Nagarnar, Chhattisgarh for a total value of Rs. 17,78,52,500/-. For the execution of said work, on 06.05.2013 an agreement was executed with respondent No. 2 who failed to supply the said material within the stipulated period i.e. 15 months. Thereafter, the contract agreement was amended on 06.06.2013 and time was extended for supply till 15.01.2016. Initially, respondent No. 2 submitted the performance bank guarantee to the tune of Rs. 75 lakhs, but it failed to furnish any performance bank guarantee for the additional order.
C. Respondent No.2 submitted a bill amounting to Rs. 46,27,70,759/- and after payment and adjustments, the outstanding amount was Rs. 43,60,946/-, out of which, Rs. 10 lakhs was paid to respondent No.2 vide LAC dated 07.07.2018. Thus, the total outstanding amount was Rs.33,60,936/- only.
D. After negotiation, respondent No.2 agreed to have Rs.1.10 crores as a final settlement, out of which, the petitioner released an amount of ₹75 lakhs at75 lakhs at the first instance and the balance amount was agreed to be released in two installments. Respondent No.2 sent an email on 15.01.2019 requesting the petitioner for payment of ₹75 lakhs at47 lakhs.
E. When the petitioner failed to make the balance payment, respondent No. 2 filed a claim petition before respondent No.1, which was registered as case number G/05/S/00169/54 under the provisions of Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (for short, ‘MSMED Act, 2006’) on 31.09.2018, claiming therein the amount of ₹75 lakhs at7, 89,33,137/-.
F. The petitioner, after receiving notice, filed a reply to the claim petition on 03.04.2019 and disputed the said claim.
G. The petitioner filed WP227 No.22/2021 before this Court challenging therein the proceedings initiated by respondent No.1 under Section 18 of the MSMED Act, 2006 thereby making prayer to quash the proceedings on application for reference dated 18.09.2018 on the ground that in conciliation proceedings the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 shall apply, but no notice has been issued for conciliation.
H. This Court vide order dated 12.04.2021 allowed the petition and directed respondent No.1/the Micro and Small Industries Facilitation Council to take up proceedings for conciliation according to provisions of Section 18(2) of the MSMED Act, 2006.
I. After the failure of conciliation proceedings, respondent No.1 initiated arbitration proceedings to resolve the dispute that arose between the petitioner and respondent No.2 according to the provisions of Section 18 (2& 3) of the MSMED Act, 2006.
J. The petitioner filed WPC No.4235 of 2021 challenging therein the arbitration proceedings initiated before respondent No.1 and this Court vide order dated 14.01.2022 dismissed the petition.
K. The petitioner filed Writ Appeal No.56 of 2022, challenging therein the order passed in WPC 4235 of 2021 and vide judgment dated 12.05.2022; the Hon’ble Division Bench dismissed the Writ Appeal preferred by the petitioner.
L. Against the judgment/order dated 12.05.2022, SLP(C) No. 1080 of 2022 was preferred before the Hon’ble Supreme Court and the same was also dismissed vide order dated 26.09.2022.
M. Respondent No.1 passed an award in the arbitration proceeding on 08.12.2022. The petitioner challenged the award dated 08.12.2022 by filing WPC No.1481 of 2023 on 09.03.2023, and this Court dismissed the Writ Petition vide order dated 12.06.2023 holding that it is hit by the principles of constructive res judicata and alternative remedy.
N. The petitioner filed the review petition on 14.07.2023 seeking the review/recall of the order dated 12.06.2023.
3) Learned Senior Counsels appearing for the petitioner put forth various arguments which can be divided into four parts:-
i. The Writ Court wrongly applied the principle of constructive res judicata without discussing the issues involved in the earlier round of Writ Petitions.
ii. The alternative remedy was not a bar when the Writ Petition was admitted for hearing, and the issue of jurisdiction was also raised which goes to the root of the case.
iii. The procedures prescribed in the MSMED Act, 2006 have not been complied with.
iv. The arbitration proceedings were heard by only one member and not by all members of the Council.
4) Learned Senior Counsel appearing for respondent No.2 has argued that the issue raised in the present review petition has already been discussed and answered by the Writ Court, thereafter by the Hon’ble Division Bench, and ultimately upheld by the Hon’ble Supreme Court, therefore, WPC No.1481 of 2023 was rightly dismissed on the ground that the same is hit by the principle of constructive res judicata. It was also argued that according to Section 19 of the MSMED Act, 2006, after passing of an award, the same can be challenged after pre-deposit of 75% amount of the award and in order to avoid the mandatory deposits, the Writ Petition was filed. It is further argued by the learned Senior Counsel that there is an efficacious alternate remedy to challenge the award dated 08.12.2022 under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act, 1996’), therefore, the Writ Petition was rightly dismissed on the ground of availability of an efficacious alternative remedy.
5) It would be advantageous to come across the issues involved in earlier Writ Petitions and their outcomes.
6) A claim petition was filed by respondent No.2 against the petitioner before respondent No.1 under Section 18 of the MSMED Act, 2006, seeking recovery of the amount to the tune of ₹75 lakhs at3,79,60,152/- along with interest of ₹75 lakhs at3,91,72,985/-, the total amount of ₹75 lakhs at7,89,33,137/-, claiming it a dispute between the parties as contemplated under chapter-5 of the MSMED Act, 2006. Respondent No.1 initiated arbitration proceedings according to the provisions of Section 18(3) of the MSMED Act, 2006. The decision taken by respondent No.1 to initiate arbitration proceedings was challenged by the petitioner in WP227 No.22 of 2021, on the ground that the conciliation proceedings were not concluded, whereas a decision was taken to initiate arbitration proceedings. It was also one of the grounds that respondent No.1/Council failed to follow the procedure contemplated under Section 18 of the MSMED Act, 2006, and no steps were taken to initiate the conciliation proceedings. The petitioner in WP227 No. 22 of 2021 sought the following relief(s):-
“10.1. it is, respectfully prayed to the Hon’ble Court that the suitable writ/directions may kindly be issued for setting aside the application for reference dated 18.09.2018 made by respondent No.4 to the respondent No.3 under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006.
10.2. Any other further order(s) as deemed fit and necessary by this Hon’ble Court in the interest of justice.”
7) Writ Petition (WP227 No.22 of 2021) was allowed vide order dated 12.04.2021 holding that the proceedings initiated under Section 18(3) of the MSMED Act, 2006 are erroneous and illegal, and respondent No.1/Council was directed to take up the proceedings for conciliation according to the provisions of Section 18(2) of the MSMED Act, 2006. The relevant para No.12 of the order dated 12.04.2021 is reproduced herein below:-
“12. Hence, the order of the respondent No.3 for proceeding under Section 18 (3) of the Act is erroneous and illegal regarding, in which interference is required for by this petition. Hence, this petition is allowed. The respondent No.3 is directed to take up the proceeding for conciliation under Section 18 (2) of the Act, 2006, which should be strictly a conciliation process as mentioned hereinabove in this matter, which may be by the Facilitation Council itself or by any institution providing alternate dispute resolution services, before taking up the proceeding under Section 18 (3) of the Act, 2006 and any further.”
8) The petitioner filed another Writ Petition (WPC No. 4235 of 2021) on 18.10.2021, on the ground that respondent No.1/Council under Section 18 of the MSMED Act, 2006, had no jurisdiction to adjudicate the disputed claim of escalation/price variation; therefore, the proceeding instituted was without jurisdiction and respondent No.1/Council did not follow the procedure contemplated under Section 18 of the MSMED Act, 2006.
9) The petitioner had also challenged the order dated 12.04.2021, whereby the application moved by the petitioner to reject the claim petition of respondent No.2 was rejected. The petitioner raised specific grounds that respondent No.1 has only jurisdiction to deal with the dispute of supplier/service provider in case where payment was not released within due time for recovery of admitted dues etc; the provisions of the MSMED Act, 2006 are not applicable to resolve the disputes of determination of an agreement due to price variation without deciding the objection with respect to the maintainability of the proceedings according to the provision of Section 10 of the Act, 1996; the tribunal should not comprise of even numbers of the arbitrators; the conciliator should not act as an arbitrator; respondent No.1 has made up its mind to pass an award against the petitioner; no notice was issued under Section 21 of the Act, 1996 to the petitioner; respondent No.1 while dealing with the objection concerning Section 18 of the Act, 1996, wrongly held that according to Section 24 of the MSMED Act, 2006 the proceedings conducted under Sections 15 to 18 of the MSMED Act, 2006, have overriding effect over any other law for the time being in force; the arbitration proceedings dated 08.03.2021 were proceeded by four members, whereas, the order dated 12.10.2021 was passed by three members; and the order-sheet of respondent No.1 would reveal that the procedures contemplated under the MSMED Act, 2006 and the Act, 1996 have not been complied with.
10) The petitioner sought the following relief(s) in WPC No.4235 or 2021:-
“10.1, It is prayed that this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the Petitioner from the possession of the respondent No.1, for its kind perusal.
10.2 This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamuses directing that the respondent No.1, under Section 18 of the Act of 2006 has no jurisdiction to adjudicate disputed claim of escalation/price variation, hence the proceeding instituted in the Case No.G/05/S/00169/54 are without jurisdiction.
10.3 This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamuses directing, that the arbitration proceedings instituted by the respondent Nol, without following due procedure contemplated under Arbitration and Conciliation Act 1996, is also not maintainable.
10.4 Any other relief/reliefs, which this Hon'ble Court may think fit and proper in the facts and circumstances of the case, with cost of the petition, may also please be granted to the petitioner.
10.5. This Hon’ble Court may kindly be pleased to issue a writ in the nature of certiorari and quash the order dated 12.10.2021.”
11) Writ Petition (WPC No.4235 of 2021), was dismissed vide order dated 14.01.2022, wherein it was held that from a perusal of the minutes of the proceedings, it is apparent that both the parties made a declaration to the effect that there could be no conciliation between them, therefore, the proceedings under Section 18(2) of the MSMED Act, 2006 were closed and the proceedings under Section 18(3) of the MSMED Act, 2006 were initiated. It is further held that there was no specific role of respondent No.1 in the meeting held on 03.08.2021 as there was a declaration by the parties that there exists no possibility of conciliation between them. It was further held that the bar contemplated under Section 80 of Act, 1996 shall not be applicable to the proceedings before the facilitation council under the provisions of the MSMED Act, 2006. According to the provisions of Section 24 of the MSMED Act, 2006, it is clear that the provisions under the MSMED Act, 2006 have an overriding effect over the provisions under any other law including the Act, 1996. The concluding para 12 and 13 of the said order are reproduced herein below:-
“12. The minutes of the proceeding held on 3.8.2021 are not very specific regarding the role of the members of respondent No.1 in the conciliation proceeding, but it is very specific that there is a declaration of the parties that there is no possibility of any conciliation between them, hence, it cannot be said with affirmation that the members of the respondent No.1 had infact acted to conciliate on the dispute present between the parties.
13. The question raised by the petitioner is legal on the basis of the facts present, that the respondent No.1 had itself taken up the conciliation proceeding under Section 18(2) of the Act, 2006 and, therefore, the arbitration proceeding by the respondent No.1 itself is against the provision under Section 80 of the Act, 1996. Although the Single Bench of the High Court of Karnataka has in the case of M/s Pal Mohan Electronics (supra) expressed a view that the Section 80 of the Act, 1996 expresses against the empowerment of the facilitation Committee to act as a arbitrator, subsequent to being a conciliator, but this view has not been supported or rectified of any other High Court. The view of Allahabad High Court in the case of M/ s Cummins Technologies India(supra), in the case of Supreme Court in Bhaven Construction through Authorised Signatory Premjibhai k. shah(supra), in the case of Delhi High Court in Bata India Limited Vs. AVS International Private Limited (supra), in the case of Patna High Court in the Best Towers Private Limited(supra), in the case of Madras High Court in Eden Exports Company(supra) and similar view is expressed in the case of Delhi High Court in Badri Singh Vinimay Private(supra) are to this effect that the bar under Section 80 of the Act, 1996 shall not be applicable to the proceeding before the facilitation Committee under the provisions of the Act, 2006 and, further, that the Section 24 of the Act, 2006 is very clear on this point showing that the provisions under the Act, 2006, have overriding effect over the provision under any other act including the Act, 1996. Hence, I am of this view that the petition filed is without any substance, which is liable to be dismissed.”
12) Writ Appeal (WA No.56 of 2022) was preferred against the order passed in WPC No.4235 of 2021 and the Hon’ble Division Bench held that the facilitation council can act as an arbitrator. It is further held that no provision was brought to the notice to demonstrate that the facilitation council cannot arbitrate in regard to a claim pertaining to price escalation while conducting arbitration; thus, the aforesaid Writ Appeal was also dismissed vide judgment dated 12.05.2022. The relevant para-40 and 41 of the judgment are reproduced herein below:-
“40. Division Bench of this Court in JMS Mining Services Pvt. Ltd. (supra), had already held that any inhibition in the realm of law relating to arbitration including A & C Act, to a conciliator being an arbitrator in the same case, does not affect the arbitral proceeding under Section 18(2) and 18(3) of the Act of 2006. Though Section 80 of A & C Act was specifically not taken note of, the same will not make any difference as we find ourselves in agreement with the view taken in M/s Cummins Technologies India Pvt. Ltd. (supra), The Best Towers Pvt. Ltd (supra), M/s. Refex Energy Limited (supra) and Eden Exports Company (supra). The reasonings assigned will also squarely apply with regard to the contentions urged by Mr. Shrivastava qua Sections 10, 12, 21, 23 & 24 of the A & C Act.
41. No provision has been brought to our notice by Mr. Shrivastava to demonstrate that Facilitation Council cannot arbitrate in regard to a claim towards price escalation while conducting arbitration and therefore, the submission is without any merit.”
13) The petitioner preferred Special Leave to Appeal (C) No.10801 of 2022 before the Hon’ble Supreme Court and the same was dismissed vide order dated 26.09.2022. Thereafter, respondent No.1 passed an award on 08.12.2022 to the tune of ₹75 lakhs at14,56,33,883/- against the petitioner and the petitioner was granted 30 days to make payment of the award. After passing of the award, the petitioner filed Writ Petition (C) No. 1481 of 2023.
14) Learned Senior Advocates appearing for the petitioner to counter the dismissal of the Writ Petition on the grounds of constructive res-judicata and alternate remedy would make the following submissions:-
a. The principles of constructive res judicata will apply only if res judicata applies;
b. In the present case, the principle of res judicata or constructive res judicata had no application either on law or on facts;
c. Earlier, an objection was raised that the Facilitation Council cannot arbitrate since it has mediated, therefore, it would be seen that the challenge was to enter into reference and competence of the Council to arbitrate. Even by way of the proposal of parties, the Council cannot be appointed as an arbitrator;
d. The ground which was taken in the Writ Petition was regarding the maintainability of reference on behalf of the claimant on the ground that since it is not registered under the MSMED Act, 2006 for the specific category of service providers, the claimant is not entitled to approach the Council. This objection can be raised only when the arbitration proceedings start and the parties enter into the merits of the case and not before that;
e. The Court has applied the principle of constructive res-judicata. For applying the principle of Constructive Res-judicata, the first requirement is that the point could be raised at earlier proceedings. If the point is based upon a fact then it must be shown that the very fact was within the knowledge of the party raising it in the subsequent proceedings, because unless and until that fact is within knowledge it cannot be raised. If the fact is related to the claimant then that fact must be pleaded then only it can be said it was within the knowledge of the other party. In the present case, there was no pleading in this regard by the Claimant/Respondent and therefore the Petitioner had no occasion to examine this aspect. In addition, the claimant has not even pleaded in his reference petition what kind of goods were supplied or what kind of services were rendered. Legally speaking without pleading this, the reference petition itself was not maintainable;
f. As such there was no occasion to raise this point that the Claimant is not registered under the MSMED Act, 2006 under the category of service providers, therefore neither the issue could be raised nor could be decided in the earlier proceedings.
15) Learned Senior Counsels appearing for the petitioner would argue that the principle of res judicata is not applicable in the present case and placed reliance on the following judgments:-
i. Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy reported in (1970) 1 SCC 613; relevant paras- 5, 9, 10, 11:-
“5. But the doctrine of res judicata belongs to the domain of procedure : it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties : the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the , transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the soured of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision of law can not be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent Proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.
9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, observed in Tarini Charan Bhattacharjee's case [ I.L.R. 56 Cal. 723.]:
"The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has 'been finally decided."
10.A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
11.It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided-in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be, reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same for the expression "the matter in issue" in s. 11 Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata,for a rule of procedure cannot supersede the law of the land.”
ii. Sushil Kumar Mehta Vs. Gobin Ram Bohra, (1990) 1 SCC 193; Para 26:-
“26. Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned.
A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earher decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.”
iii. Isabella Johnson Vs. M.A Susai, (1991) 1 SCC 494; Para- 6:-
“6.The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs., [1990] 1 SCC 193. We find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo Jaiswal and Others v. Dossibai N.S. Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Others v. Jagjit Singh and Another, and hence, to the extent, that the judg- ment in Avtar Singh's case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law. In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estop- pel on a pure question of law and in this case the question of jurisdiction is a pure question of law.”
iv. Sabitri Dei & Ors. Vs. Sarat Chandra Rout & Ors., (1996) 3 SCC 301; Para 6&7:-
“6.Coming to the first question, it is apparent that on issuance of a notification under Section 3(1) of the Act, the estate vests free from all encumbrances in the State Government. The pre-existing rights shall cease to exist and new rights have been created under the Act. By virtue of section 6 the Homesteads of Intermediaries and buildings together with lands on which buildings stand in the possession of Intermediaries and used as goals, factories or mills to be retained by them on payment of rent. But the pre conditions in a deemed settlement for fixation of rent as contemplated under Section 6 must be satisfied namely the land must be in use as goals, factories or mills. Under sub- section (3) of section 8A if no claim is filed within the specified period then the right to possess the land or building or structure, as the case may be, stand vested in the State Government by operation of the Act and thereupon the right to make any such claim by the Intermediary stand extinguished. It is admitted by the parties that the Intermediary had not filed any claim within the stipulated period and infact no settlement of rent had been mad with the Intermediary under Section 6. Such a settlement couldn't have been made as admittedly the defendant judgment debtor is in possession of the land. This being the position, on and from the ate of issuance of notification under Section 3(1) of the Act that is 27th April,, 1963, the Civil Court looses jurisdiction in respect of the disputed property by operation of Section 39 of the Act and consequently the decree passed on 30th of the March, 1965 must be held to be a nullity. Once a decree is held to be a nullity, the principle of constructive res judicata will have no application and its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in any collateral proceeding. This question no longer remains res integra and has been so held in the case of Sushil Kumar Mehta vs. Gobind Ram Bohra reported in (1990) 1 S.C.C. P. 193 to which one of us (brother Ramaswamy, J.) was a member. It has been held in the aforesaid case:
"Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or and persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. the defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in its exercise which does nor go to the root of its authority, such a defect in its exercise which does not go to the root of its authority, such defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and suit or might and ought to be raised claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a may operate as res judicata in subsequent proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelating to the jurisdiction of a court unrelated to questions of fact or as res judicata even between the parties reason is obvious; a pure question of law unrelated to facts which are the basis or to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a com patent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a E procedure or a pure question of law unrelated to the right of the parties founded purefy on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court - Therefore, the doctrine of res judicata does not appl-y to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory X ; ; rights in a welfare legislation are created, the doctrine of waiver also does; not apply to A case of decree where the court inherently lacks jurisdiction."
7.The ratio of the aforesaid case fully applies to the facts and circumstances of the case in hand. Mr. Mohanty appearing for the respondents did not challenge the proposition of law but contended that Section 6 of the Act confers a deemed right of settlement with the Intermediaries in respect of the disputed property and that provision overrides the other provisions of the Act and therefore Section 39 of the Act will have no application. We are unable to persuade ourselves to agree with the submission made by Mr. Mohanty as the said submission does not take into consideration the provisions of sub-section (3) of section 8A. In our considered opinion the estate in question having been vested by virtue of notification under Section 3(1) of' the Act and no claim having been made by the Intermediary for getting deemed settlement of fixation of rent, by operation of sub-section 3 of Section 8A, the right of the lntermediary stand extinguished and therefore under such circumstances the Civil Court had no jurisdiction of pass the decree in the year 1965. Consequently the decree in question is nullity and the executing court can refuse to execute the decree. The High Court was in obvious error in directing execution of the decree.”
v. Allahabad Development Authority vs. Nasiruzzaman & Ors., (1996) 6 SCC 424; Para- 6:-
“6.In view of the above ratio, it is seen that when the Legislature has directed to act in a particular manner and the failure to ac results in a consequence, the question is whether the previous order operates as res judicata or estoppel as against the persons in dispute. When the previous decision was found to be erroneous on its face, this court held in the above judgment that it does not operate as res Judgment We respectfully follow the ratio therein. The principle of estoppel or res Judgment does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be over-ridden or defeated by a previous judgment between the parties. In view of the fact that land had already stood vested in the State free from all encumbrances, the question of divesting does not arise. After the vesting has taken place, the question of lapse of notification under Section 4(1) and the declaration under Section 6 would not arise. Consideration from this perspective, original direction itself was delivery of possession of the land, in consequence, was not valid in law. Further it is made clear that the respondent are entitled to interest at 9% for one year from the date of taking possession and thereafter at 15% per annum till the date of deposit into court. The respondents are not entitled to market value as on the date of award.”
vi. Krishan Lal vs. State of J&K, (1994) 4 SCC 422; Para 12 (on the point of Constructive Res-judicata not applicable if no decision on merits):-
“12. In so far as the second ground given by the High Court? the same being bar of resjudicata- it clear from what has been noted above, that there was no decision on merits as regards the grievance of the appellants; and so, the principle of resjudicata had no application. The mere fact that the learned single judge while disposing of the Writ Petition No. 23 of 78 had observed that:-
"This syndrome of errors, omissions and oddities, cannot be explained any hypothesis other than the one that there is something fishy in the petitioner's version......"
which observations have been relied upon by the High Court in holding that the suit was barred by resjudicata do not at all make out a case of applicability of the principle of resjudicata. The conclusion of the High Court on this score is indeed baffling to us, because, for resjudicata to operate the involved issue must have been "heard and finally decided". There was no decision at all on the merit of the grievance of the petitioner in the aforesaid Writ Petition and, therefore, to take a view that the decision in earlier proceeding operated as resjudicata was absolutely erroneous, not speak of its being uncharitable.”
vii. Dr. Jagmittar Sain Bhagat & Ors. vs Dir. Health Services, Haryana, reported in (2013) 10 SCC 136 (on applicability of res judicata, waiver, acquiescence), Para-9:-
“9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).”
16) Learned Senior Counsels emphasized that the Hon'ble Supreme Court has held that res judicata is not a matter of law but is a matter of policy, and therefore, would not apply in cases where the jurisdiction itself is challenged. Even otherwise in earlier rounds of litigation, the competence of the Council to arbitrate was under challenge and not the jurisdiction. Thus, the issue of jurisdiction with regard to the maintainability of reference preferred by respondent No. 2 before the Council was not raised. In the instant case, the ground urged was with regard to lack of jurisdiction to entertain the claim as Respondent No. 2 was not registered under the MSMED Act, 2006 at the relevant point of time.
17) It has been argued that alternative remedy is not a bar when order or proceedings are wholly without jurisdiction and to substantiate this argument, reliance has been placed on the following judgments of the Hon’ble Supreme Court:-
1. M/s. Godrej Sara Lee Ltd. v. The Excise and Taxation Officer cum Assessing Authority, [2023 LiveLaw (SC) 70]; para- 4, 8, 11, 12:-
“4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.
8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available.
11. We have reasons to believe, considering the nature of objection raised by the respondents as recorded by the High Court in the impugned order, that the High Court had mistakenly referred to Titagarh Paper Mills (supra) while intending to rely on a different decision of this Court on an appeal preferred by the same party, reported in (1983) 2 SCC 433 (Titaghur Paper Mills Co. Ltd. vs. State of Orissa). While upholding the impugned order of dismissal of the writ petition, where an order passed by the Sales Tax Officer was under challenge, this Court in Titaghur Paper Mills Co. Ltd. (supra) held that the challenge being confined to the regularity of proceedings before the Sales Tax Officer and there being no suggestion that the concerned officer had no jurisdiction to make an assessment, the decision in Mohd. Nooh (supra) was clearly distinguishable since in that case there was total lack of jurisdiction. This Court also held that under the scheme of the relevant Act, there was a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of and that since the authority of the concerned officer to make an assessment was not in question, recourse ought to be taken by initiating proceedings thereunder. As noted above, the very jurisdiction of the Revisional Authority having been questioned in the writ petition, the impugned order of the High Court dismissing the writ petition without examining the merits of the challenge cannot be sustained even if the High Court were to rely on Titaghur Paper Mills Co. Ltd. (supra) to support such order.
12. The High Court by dismissing the writ petition committed a manifest error of law for which the order under challenge is unsustainable. The same is, accordingly, set aside.”
2. Magadh Sugar and Energy Ltd. v. State of Bihar and others reported in 2021 SCC Online SC 801, para 25-27 and 32, 33:-
“25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahni v. Indian Oil Corporation Ltd (2003) 2 SCC 107. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors 2021 SCC OnLine SC 334 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:
“28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” (emphasis supplied)
26.The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited Civil Appeal No. 5121 of 2021. In State of HP v. Gujarat Ambuja Cement Ltd (2005) 6 SCC 499 this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:
“23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.”
27. The above principle was reiterated by a three-judge Bench of this Court in Executive Engineer v. Seetaram Rice Mill (2012) 2 SCC 108. In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of an unauthorized use of electricity under Section 126 (1) of the Electricity Act 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgement of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations:
“81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.
82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous—lex neminem cogit ad vana seu inutilia— the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail...”
(emphasis supplied)
32.The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court.
33. We are of the considered view that the High Court made an error in declining to entertain the writ petition and it would be appropriate to restore the proceedings back to the High Court for a fresh disposal. In order to facilitate the decision on remand, we have recorded the broad submissions of the parties on merits but leave the matter open for a fresh evaluation by the High Court. We accordingly allow the appeal and set aside the judgement of the High Court dated 18 September 2017 arising out of CWJC No 4300 of 2015. The writ petition is restored to the file of the High Court for fresh determination. The appeal is disposed of in the above terms with no order as to costs.”
3. Alternate remedy is not a remedy if it is onerous, the Hon’ble Supreme Court in the matter of Himmatlal Harilal Mehta v. State of M.P., [AIR 1954 SC 403] observed thus:-
“In our opinion, the contentions raised by the learned Advocate-General are not well founded. It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the appellant if it failed to make the return or to meet the demand and in order to escape from such serious consequences threatened without authority of law, and infringing fundamental rights, relief by way of a writ of mandamus was clearly the appropriate relief. In Mohd. Yasin v. The Town Area Committee(2), it was held by this court that a licence fee on a business not only takes away the property of the licensee but also operates as a, restriction on his fundamental right to carry on his business and therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32, a fortiori also, under article 226. These observations have apposite application to the circumstances of the present case. Explanation II to section 2(g) of the Act having been declared ultra vires, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law,, and that being so a threat by the State by using the coercive machinery of the impugned Act to realize it from the appellant is a sufficient infringement of his fundamental right under article 19(1) (g) and it was clearly entitled to relief under article 226 of the Constitution. The contention that because a remedy under the impugned Act was available to the appellant it was disentitled to relief under article 226 stands negatived by the decision of this court in The State of Bombay v. The United Motors (India) Ltd. 74 I.A. 5o. (2) [1952] S.C.R. 572, I46, above referred to. There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under article 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy.”
18) Learned Senior Counsels further highlighted that the pure substantial questions of law such as the issue of jurisdiction can be raised at any stage and the principles of waiver, acquiesce and res-judicata are not attracted and alternate remedy will not be a bar. In support of their contentions, reliance has been placed on the catena of the judgments of the Supreme Court. It has been argued that the contentions and judgments were cited and noted but not discussed and dealt with. Judgments that were cited are M/s Vaishno Enterprises vs Hamilton Medical Ag, [2022 SCC Online (SC) 355]; M/s. Godrej Sara Lee Ltd. (supra); Silpi Industries v Kerala State Road Transport Corporation, [2021 SCC Online (SC) 439]. It is also contended that it is a settled principle of law that it is the duty of the Writ Court to deal with and decide all the issues raised and then pass a speaking order.
19) With regard to the review, learned Senior Counsels argue that an application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. A decision which is contrary to an existing decision of the Hon'ble Supreme Court on a question of law raised in the petition would amount to a mistake or error apparent on the face of the record. Reference has been made to: {[Nalagarh Dehati Co-operative Transport Society Vs. Beli Ram, (AIR 1981 HP 1 (FB) para 1, 16, 24); Collector, Cuttack and Ors Vs. Bharat Chandra Bhuyan, 2014 SCC Online Ori 478 (DB); State of Rajasthan Vs. M/s Mehta Chetandas Kishandas, 1980 SCC Online Raj 2; The Employees State Insurance Corporation Vs. M/s Raja Gopal Textile Mills, 2006 SCC Online Ker 754; Sri Krishna Salt Works Vs. The State of A.P., 2002 (3) APLJ 281}. Further reference has been made to the following authoritative pronouncements:-
a. High Court is a Court of record - not only has all the power but also a duty to correct errors apparent on the face of the record. {M.M. Thomas Vs State of Kerala, (2000) 1 SCC 666; para 13, 14, 17; Municipal Corporation of Greater Mumbai and another Vs. Pratibha Industries Ltd and others, (2019) 3 SCC 203; para 10-13}.
b. All Relevant aspects which have a direct bearing on the outcome of the case, not placed for consideration by the Court are grounds for review. [Ashok Kumar Pattanaik & Ors. Vs. State of Orissa, (1998) 6 SCC 176; para 4].
c. With regard to the applicability of Section 34 of the Arbitration and Conciliation Act, 1996, reliance has been placed on the matter of Jharkhand Urja Vikas Nigam Ltd. Vs. The State of Rajasthan & Ors., Civil Appeal No. 2899 of 2021, wherein the Hon’ble Supreme Court in para 7-9, 11-13 & 15 held as under:-
“7. Sri Kailash Vasdev, learned senior counsel appearing for the respondent no.3 has submitted that though the supplies were made as per the terms of the contract, the appellant has delayed the payment which necessitated the 3rd respondent to approach the Council. Though several notices were issued by the Council, appellant has not responded to the same and lastly by issuing summons on 18.07.2012 the Council has passed the award on 06.08.2012 by recording a finding that appellant is guilty of delay in paying the amounts due to the 3 rd respondent. It is submitted that even after the award, a notice was issued to the appellant, instead to comply the award only an amount of Rs.63,43,488/- was paid. Thereafter as the awarded amount was not paid, the 3rd respondent has filed execution case before the civil court at Ranchi, same was questioned by the appellant by way of writ petition which was subsequently dismissed as withdrawn. It is submitted that Civil Judge at Ranchi has dismissed the execution case on the ground that it was not maintainable due to lack of territorial jurisdiction, since award was passed on 06.08.2012 at Jaipur. It is submitted that after a gap of nearly 9 months C.W.P. No.6885 of 2016 was filed by the appellant. It is submitted that the MSMED Act is a beneficial legislation to the small and medium enterprises. Though proper opportunity was given, the appellant has not responded to the same before the Council and there are no grounds to interfere with the impugned order passed by the High Court. It is submitted that when the award is passed by the Council it is open to challenge under Section 34 of the Arbitration and Conciliation Act, 1996 within the specified period and having failed to question the award belated attempt is made by filing writ petition before the High Court. Learned senior counsel placed reliance on a judgment of this Court in the case of Rajkumar Shivhare v. Asst. Director, Directorate of Enforcement & Anr. (2010) 4 SCC 772 in support of his submissions and further submitted that appellant has partly complied the award by paying an amount of Rs.63,43,488/-, as such it is not open to challenge the same at this point of time.
8. In the writ petition the appellant has challenged the order/award dated 06.08.2012 passed by the 2nd respondent-Council constituted under provisions of MSMED Act. The 3rd respondent has approached the Council seeking directions against the appellant for payment of delayed bill amount along with interest under provisions of MSMED Act. Immediately after filing application by initiating conciliation proceedings, Council has issued notices and as the appellant has not appeared summons were issued to the appellant on 18.07.2012 for appearance on 06.08.2012. The relevant portion of the summons dated 18.07.2012 issued by the Council reads as under :
“Now, therefore, notice is hereby given to you to appear in person or through authorized representative before the Council on 6th August, 2012 at 3.30 P.M. or on such day as may be fixed by the Council to submit in support of the claim/dispute and you are directed to produce on that day all the documents upon which you intend to rely in support of your defense.
Take note that in default of your response within the period mentioned above, the dispute shall stand terminated. Otherwise the dispute shall be heard and reconciled with a view to the settlement of dispute and in case settlement is not arrived at, the Council shall either itself act as an arbitrator for final settlement of dispute or refer it to an institute for such settlement as per provisions of the Act.”
9. Only on the ground that even after receipt of summons the appellant has not appeared the Council has passed order/award on 06.08.2012. As per Section 18(3) of the MSMED Act, if conciliation is not successful, the said proceedings stand terminated and thereafter Council is empowered to take up the dispute for arbitration on its own or refer to any other institution. The said Section itself makes it clear that when the arbitration is initiated all the provisions of the Arbitration and Conciliation Act, 1996 will apply, as if arbitration was in pursuance of an arbitration agreement referred under sub-section (1) of Section 7 of the said Act.
11. From a reading of Section 18(2) and 18(3) of the MSMED Act it is clear that the Council is obliged to conduct conciliation for which the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 would apply, as if the conciliation was initiated under Part III of the said Act. Under Section 18(3), when conciliation fails and stands terminated, the dispute between the parties can be resolved by arbitration. The Council is empowered either to take up arbitration on its own or to refer the arbitration proceedings to any institution as specified in the said Section. It is open to the Council to arbitrate and pass an award, after following the procedure under the relevant provisions of the Arbitration and Conciliation Act, 1996, particularly Sections 20, 23, 24, 25.
12. There is a fundamental difference between conciliation and arbitration. In conciliation the conciliator assists the parties to arrive at an amicable settlement, in an impartial and independent manner. In arbitration, the Arbitral Tribunal/ arbitrator adjudicates the disputes between the parties. The claim has to be proved before the arbitrator, if necessary, by adducing evidence, even though the rules of the Civil Procedure Code or the Indian Evidence Act may not apply. Unless otherwise agreed, oral hearings are to be held.
13. If the appellant had not submitted its reply at the conciliation stage, and failed to appear, the Facilitation Council could, at best, have recorded the failure of conciliation and proceeded to initiate arbitration proceedings in accordance with the relevant provisions of the Arbitration and Conciliation Act, 1996, to adjudicate the dispute and make an award. Proceedings for conciliation and arbitration cannot be clubbed.
15.The order dated 06.08.2012 is a nullity and runs contrary not only to the provisions of MSMED Act but contrary to various mandatory provisions of Arbitration and Conciliation Act, 1996. The order dated 06.08.2012 is patently illegal. There is no arbitral award in the eye of law. It is true that under the scheme of the Arbitration and Conciliation Act, 1996 an arbitral award can only be questioned by way of application under Section 34 of the Arbitration and Conciliation Act, 1996. At the same time when an order is passed without recourse to arbitration and in utter disregard to the provisions of Arbitration and Conciliation Act, 1996, Section 34 of the said Act will not apply. We cannot reject this appeal only on the ground that appellant has not availed the remedy under Section 34 of the Arbitration and Conciliation Act, 1996. The submission of the learned senior counsel appearing for the 3rd respondent that there was delay and laches in filing writ petition also cannot be accepted. After 06.08.2012 order, the appellant after verification of the records has paid an amount of Rs.64,43,488/- on 22.01.2013 and the said amount was received by the 3rd respondent without any protest. Three years thereafter it made an attempt to execute the order in Execution Case No.69 of 2016 before the Civil Judge, Ranchi, which ultimately ended in dismissal for want of territorial jurisdiction, vide order dated 31.01.2017. Thereafter S.B.Civil Writ Petition No.11657 of 2017 was filed questioning the order dated 06.08.2012 before the Rajasthan High Court. In that view of the matter it cannot be said that there was abnormal delay and laches on the part of the appellant in approaching the High Court. As much as the 3rd respondent has already received an amount of Rs.63,43,488/- paid by the appellant, without any protest and demur, it cannot be said that the appellant lost its right to question the order dated 06.08.2012. Though the learned counsel appearing for the respondents have placed reliance on certain judgments to support their case, but as the order of 06.08.2012 was passed contrary to Section 18(3) of the MSMED Act and the mandatory provisions of the Arbitration and Conciliation Act, 1996, we are of the view that such judgments would not render any assistance to support their case.”
d. Similar view has been taken in M/s Narmada Transmission Pvt. Ltd. Vs. Rajasthan Rajya Vidyut Prasaran Nigam Ltd., D.B. Special Appeal Writ No. 708/2018 - High Court of Rajasthan; Dhule Municipal Corporation Vs. Microvision Technologies, 2021 SCC OnLine Bom 13928.
20) With regard to the submission that the award is nullity, the following points have been raised:-
a. Award is a nullity as mandatory provisions of the Act, 1996 were not followed.
b. The arbitration proceeding starts and culminates in the following steps:-
· Arbitrator is appointed - in the present case, at best, by virtue of earlier rounds of litigation, the Council was appointed as an arbitrator;
· Then arbitrator will make a declaration in accordance with Section 12 as regards his impartiality;
· Thereafter Arbitrator will enter into reference of dispute;
· Thereafter Arbitrator will invite a Statement of Claim as required under Section 23 of the Act, 1996 which requires pleadings similar to pleadings in the plaint;
· If the statement of claim is not filed as required under Section 23, the arbitrator in view of the mandate of Section 25 will terminate the Arbitration proceedings;
· If the statement of claim is filed then the opposite party will file a reply (Written Statement) to the Statement of Claim;
· After or before the reply is filed, both parties are entitled to amend their pleadings [Section 23(2)];
· On completion of proceedings, the matter will be set out for evidence;
· After completion of evidence, the matter will be set out for argument. Thereafter award would be pronounced.
21) In view of the above legal illustrations, the learned Senior Counsels further argue that in the instant case, no statement of claim was filed in accordance with Section 23 of the MSMED Act, 2006; and there was no pleading as to how the claim arises and how interest is payable. The Council has delivered the award for mere asking. Since there is no Statement of Claim, the Arbitral Tribunal should have terminated the proceedings in accordance with Section 25 of the Act, 1996. No disclosure was made by the Arbitral Tribunal in accordance with Section 12(2) of the Act, 1996; therefore, the award is a nullity as mandatory provisions of the Act, 1996 were not followed. Records reveal that proceedings were conducted by one member only and not by quorum, therefore, the proceedings were not conducted by the Council. No opportunity for the oral hearing was afforded and parties were directed to file written arguments. It is a settled principle of law that Written Arguments cannot be substituted for oral hearings. Reference has been made to Automotive Tyre Manufacturers Association Vs. Designated Authority & Ors., (2011) 2 SCC 258; Para 83].
22) Learned Senior Counsels also submit that the award is a nullity as it has been obtained by playing fraud before the Respondent Council. The Respondent has not at all denied or disputed this fact and therefore it amounts to an admission. As per the financial documents (brought on record vide Application for taking additional documents on record- I.A. No. 3) of Respondent No. 2, it had the following investments in plant and machinery:-
As on 01.04.2016 – Rs. 5,06,14,540/-
As on 31.04.2017 – Rs. 6,10,17,958/-
As on 31.03.2018 - Rs. 6,07,91,145/-
As on 31.03.2019 - Rs. 6,14,45,030/-
As per Section 7 of the MSMED Act, 2006, an enterprise having an investment of not more than 5 crores is classified as a Small Scale Enterprise. Respondent No. 2 ceased to be a small-scale enterprise in the year 2016 as its investment in plant and machinery was beyond the upper limit of Rs. 5 crores for classification as a small-scale enterprise. Respondent No. 2 willfully misrepresented itself as a small-scale enterprise while preferring the reference claim in the year 2018 before the Respondent Council in order to take undue benefit under the provisions of the MSMED Act, 2006. Judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non-est in the eyes of law and the same can be challenged in any Court, at any time, in appeal, revision, and writ or even in collateral proceedings. Reference was made to A.V. Papayya Sastry Vs. Govt. of A.P., (2007) 4 SCC 221; para 22; Sterlite Technologies Ltd. Vs. Dhar Industries, ILR (2013) M.P. 1381; para 11, 12, 34, 35.
23) The proceedings under the MSMED Act, 2006 were initiated without any resolution. Respondent No. 2 being a company i.e., a juristic entity can initiate proceedings only after the passing of a board resolution in terms of Section 291 of the Companies Act. In support thereof, reference has been made to Nibro Ltd. Vs National Insurance Ltd., AIR 1991 Del 25; para 24. The Court proceeded on the assumption that the alternate remedy was still available whereas the alternate remedy was lost during the pendency of the Writ Petition. The Hon'ble Supreme Court as well the Hon'ble High Court in the following cases have held that if the Writ Petition was entertained (albeit wrongly) and during the pendency alternative remedy is lost then it would not be justifiable to dismiss the Writ Petition only on the ground of alternate remedy. For that, reference was made to L. Hirday Narain Vs. Income Tax Office, Barelly, (1970) 2 SC 255; Ganga Retreat Towers & Ltd. Vs. State of Rajasthan, (2003) 12 SCC 91; Tata Export vs Union of India, 1986 MP LJ 561. When it is said that the remedy is lost then the original limitation provided is taken into account and not the provision for condonation of delay. Because the condonation of delay depends upon many factors and is subject to a favourable order from the Court. No Court or person while deciding the availability of alternate remedy can pre-judge whether or not the Court considering condonation of delay would definitely condone the delay. In the judgment of L. Hirday Narain Vs. Income Tax Office., Bareilly, (1970) 2 SCC 255, the Court did not apply the principle that there is a provision of condonation of delay though there was a provision for condoning the delay and the ratio of the judgment is based upon the original period for filing the appeal. Section 14 of the Limitation Act applies with regard to the same remedy availed before another court which does not have jurisdiction. For e.g., a suit is required to be filed at a particular place but the suit is filed before another court of another place which does not have jurisdiction. Appeal is required to be filed before a particular court but the same appeal is filed before another Court which does not have jurisdiction to hear the Appeal. This is the import of Section 14. However, where the remedy availed and prosecuted was different from the remedy suggested, Section 14 shall not apply.
24) Another important aspect is that a suit, appeal or application filed before another Court must be a court which does not have jurisdiction. In the present case, it is nobody's case nor can it be argued that to entertain the Writ Petition, this Court had no jurisdiction. Here comes the distinction between maintainability and entertainability. When the Court relegates someone to avail alternate remedy, the Court directs it by way of policy that if alternate and efficacious remedy is available, the Court may not entertain a Writ Petition directly. This does not however mean that the Court does not have jurisdiction to entertain. This is clear from a catena of judgments of the Hon'ble Supreme Court that in case of lack of jurisdiction, violation of principles of natural justice, vires of legislation are under challenge or pure legal questions are involved, the Court can directly entertain the Writ Petition, even if the alternate remedy is not availed. This completely answers the issue that the Court has jurisdiction despite the availability of alternative remedies.
25) Learned Senior Counsels appearing for the petitioners would submit that the judgment relied on by the learned Counsel for respondent No. 2 rendered by the Hon’ble Supreme Court in the case of M/s India Glycols Limited & anr Vs. Micro and Small Enterprise Facilitation Council, Civil appeal No. 7491/2023 is clearly distinguishable from the facts and circumstances of the instant case as in that case, the issue of lack of jurisdiction was not the issue involved. Rather the issue of limitation was raised which being a mixed question of fact and law, the Hon'ble Court held the petition to be not maintainable against the award. In the instant case, the issue of jurisdiction which goes to the root of the matter is involved and therefore the judgment is not applicable in the facts and circumstances of the instant case. It is a settled principle of law that a judgment should not be read as a statute and should be applied depending on the facts and circumstances of each case. The Hon'ble Supreme Court in the case of M/s Vaishno Enterprises (supra) quashed the impugned award on the ground that the MSME Council did not have jurisdiction to pass the award.
26) Lastly, with regard to grounds for review, reliance has been placed on the judgments of the Hon’ble Supreme Court rendered in the matters of Surjit Singh and others v. Union of India and others, [(1997) 10 SCC 592]; M.M. Thomas v. State of Kerala, [(2000) 1 SCC 666]; Shivdev Singh and others v. State of Punjab, [AIR 1963 SC 1909]; Municipal Corporation of Greater Mumbai and another v. Pratibha Industries Ltd. And others, [(2019) 3 SCC 203]; and Daman Singh and others v. State of Punjab and others, [(1985) 2 SCC 670].
27) On the other hand, learned Senior Counsel appearing for respondent No.2 would submit that respondent No. 2 fulfilled contractual obligations by delivering the articles/goods on time, however, the petitioner failed to pay Rs. 3,60,840/- and Rs. 3,53,99,216/- for price variation, resulting in total outstanding dues to the tune of Rs. 3,87,60,152/-. Respondent No. 2 initiated recovery proceedings under the MSMED Act, 2006, for recovery of Rs. 7,89,33,137/-. After the failure of conciliation attempts, the matter proceeded to arbitration under Section 18(3) of the MSMED Act, 2006. The petitioner just to avoid the payment of the award is pursuing litigation against respondent No.2. It is further argued that in the earlier rounds of litigation, in WPC No.22 of 2021, this Court directed respondent No.1 to take up the proceedings for conciliation under Section 18(2) before taking up the proceeding under Section 18(3) of the MSMED Act, 2006. Pursuant to that order, parties were informed regarding the date of conciliation proceedings, but respondent No.2 moved an application under Section 76 of the Act, 1996 to terminate the conciliation proceedings and to commence arbitration proceedings, thereafter, the proceedings of conciliation were cancelled and arbitration proceedings were started. Wherein, the petitioner filed a reply and counter claim to the rejoinder filed by respondent No.2. After the conclusion of pleadings and oral arguments of the parties, a direction was issued to file written submissions before it till 22.10.2021. Thereafter, WPC No. 4235 of 2021 was filed by the petitioner. After the dismissal of the same, WA No. 56 of 2022 was preferred, which was also dismissed, thereafter, Special Leave to Appeal (C) No. 10801 of 2022 was preferred before the Hon’ble Supreme Court and the same was also dismissed. With regard to review, reliance has been placed on the judgments of the Hon’ble Supreme Court rendered in the matter of Sanjay Kumar Agrawal v. Sales Tax Officer and another, [2023 SCC Online SC 1406; para -16]; S. Madhusudhan Reddy vs. V. Narayana Reddy and other, [2022 SCC Online SC 1034], & Shri Praveen Jain and another vs. K. Sriniwas and another, passed in Rev.P. No. 96 of 2013 on 17.03.2017 by this Court. With respect to constructive res-judicata, reliance has been placed on Asgar and others v. Mohan Varma and others, (2020)16 SCC 230; para 15.6, 37 & 38; Alka Gupta v. Narender Kumar Gupta, (2010)10 SCC 141. With regard to alternative remedy, reliance has been placed on {M/s. India Glycols Ltd (supra); para 10, 12 to 15}; {Bharat Trading Company v. M/s. Kanpur Steel, (WPC No. 3950 of 2023)}.
28) On the other hand, learned State counsel would oppose the submissions advanced by learned counsels for the petitioner.
29) I have heard learned counsel for the parties at length and gone through the documents and the entire legal battle between the parties.
30) It would be advantageous to discuss the law with regard to the power of review:-
I. The Court may review its judgment or order, but no application for review shall be entertained in a civil proceeding except on the grounds mentioned in Order XLVII, Rule I of the Code of Civil Procedure, 1908.
II. Section 114 of the CPC vests power of review in Courts and Order 47 Rule 1 of the CPC provides for the scope and procedure for filing a review petition. The same is reproduced hereunder:-
“Order 47 Rule 1 CPC:
"1. Application for review of judgment- Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important' matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(emphasis supplied)
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.
Explanation. The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
III. In the matter of M/s Northern India (India) Ltd. v. Lt. Governer of Delhi, 1980 (2) SCC 167, the Hon’ble Supreme Court held that “A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. A review in counsel's mentation cannot repair the verdict once given. So the law laid down must rest in peace.”
IV. In the matter of Sajjan Singh and others vs. State of Rajasthan and others, [AIR 1965 SC 845], the Hon’ble Supreme Court held that “the parties are not entitled to seek review of the judgment delivered by this Court merely for purpose for review and fresh decision of the case. The normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so.”
V. In the matter of Parsion Devi and others v. Sumitri Devi and others, 1997 (8) SCC 715, the Hon’ble Supreme Court in para-9 held as under:-
“Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise.”
VI. In the matter of M/S Shanti Conductors (P) Ltd v. Assam State Electricity Board, 2020 (2) SCC 677, wherein the Hon’ble Supreme Court dismissed the petition and held that “The scope of review is limited and under the guise of review, petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided.”
VII. In the matter of Arun Dev Upadhyaya v. Integrated Sales Service Limited and another, (2023) 8 SCC 11, the Hon’ble Supreme Court held in para 15 that “From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
VIII. In the matter of Beghar Foundation v. K.S. Puttaswamy, (2021) 3 SCC 1, the Hon’ble Supreme Court held that “even the change in law of or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.”
IX. In the matter of Satyanarayan Laxminarayan v. Mallikarjun Bhavanappa, reported in AIR 1960 SC 137, the Hon’ble Supreme Court in para-8 held as under:-
“8. The main question that arises for our consideration in this appeal by special leave granted by this Court is whether there is any error apparent on the face of the record so as to enable the superior court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was "a mere error not so apparent on the face of the record", which can only be corrected by an appeal if an appeal lies at all.”
X. In the matter of S. Murali Sundaram v. Jothibai Kannan and Others, reported in (2023) 13 SCC 515, the Hon’ble Supreme Court observed that ‘even though a judgment sought to be reviewed is erroneous, the same cannot be a ground to review in exercise of powers under Order XLVII Rule 1 CPC.’
XI. In the matter of Perry Kansagra v. Smriti Madan Kansagra reported in (2019) 20 SCC 753, the Hon’ble Supreme Court observed that ‘while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 of the CPC, the Review Court does not sit in appeal over its own order.’
The gist of the afore-stated decisions is that:-
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record;
(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so;
(iii) An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review;
(iv) In the exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected";
(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise";
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided;
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions;
(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
31) Some provisions of the Micro, Small and Medium Enterprises Development Act, 2006 are quoted herein below for reference which would be relevant for the disposal of this petition:-
Section 7: Classification of enterprises:-
(1) Notwithstanding anything contained in section 11B of the Industries (Development and Regulation) Act, 1951 (65 of 1951),the Central Government may, for the purposes of this Act, by notification and having regard to the provisions of sub-sections (4) and (5), classify any class or classes of enterprises, whether proprietorship, Hindu undivided family, association of persons, co-operative society, partnership firm, company or undertaking, by whatever name called,--
(a) in the case of the enterprises engaged in the manufacture or production of goods pertaining to any industry specified in the First Schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1951),as--
(i) a micro enterprise, where the investment in plant and machinery does not exceed twentyfive lakh rupees;
(ii) a small enterprise, where the investment in plant and machinery is more than twenty-five lakh rupees but does not exceed five crore rupees; or
(iii) a medium enterprise, where the investment in plant and machinery is more than five crore rupees but does not exceed ten crore rupees;
Section 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 and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act.
(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 ittoany institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in sub-section(1) of section 7 of that Act.
(4) Notwithstanding anything contained in any other law for the time being in force, the Micro and Small Enterprises Facilitation Council or the centre providing alternate dispute resolution services shall have jurisdiction to act as an Arbitrator or Conciliator under this section in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India.
(5) Every reference made under this section shall be decided within a period of ninety days from the date of making such a reference.
Section 19: Application for setting aside decree, award or order:-
No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with it seventy-five per cent. of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court:
Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of the amount deposited shall be paid to the supplier, as it considers reasonable under the circumstances of the case, subject to such conditions as it deems necessary to impose.
Section 21: Composition of Micro and Small Enterprises Facilitation Council:-
(1) The Micro and Small Enterprise Facilitation Council shall consist of not less than three but not more than five members to be appointed from amongst the following categories, namely:--
(i) Director of Industries, by whatever name called, or any other officer not below the rank of such Director, in the Department of the State Government having administrative control of the small scale industries or, as the case may be, micro, small and medium enterprises; and
(ii) one or more office-bearers or representatives of associations of micro or small industry or enterprises in the State; and
(iii) one or more representatives of banks and financial institutions lending to micro or small enterprises; or
(iv) one or more persons having special knowledge in the field of industry, finance, law, trade or commerce.
(2) The person appointed under clause (i) of sub-section (1) shall be the Chairperson of the Micro and Small Enterprises Facilitation Council.
(3) The composition of the Micro and Small Enterprises Facilitation Council, the manner of filling vacancies of its members and the procedure to be followed in the discharge of their functions by the members shall be such as may be prescribed by the State Government.
32) Some provisions of the Arbitration and Conciliation Act, 1996 would also be relevant, particularly Sections 23, 24, 25 & 34, which are referred to herein below for reference:-
Section 23: Statements of claim and defence:-
(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.
(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
[(2A) The respondent, in support of his case, may also submit a counterclaim or plead a set-off, which shall be adjudicated upon by the arbitral tribunal, if such counterclaim or set-off falls within the scope of the arbitration agreement.]
(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.
2[(4) The statement of claim and defence under this section shall be completed within a period of six months from the date the arbitrator or all the arbitrators, as the case may be, received notice, in writing of their appointment.]
Section 24: Hearings and written proceedings:-
(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held:
[Provided further that the arbitral tribunal shall, as far as possible, hold oral hearings for the presentation of evidence or for oral argument on day-to -day basis, and not grant any adjournments unless sufficient cause is made out, and may impose costs including exemplary costs on the party seeking adjournment without any sufficient cause.]
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property.
(3) All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
Section 25: Default of a party:-
Unless otherwise agreed by the parties, where, without showing sufficient cause,—
(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant 1[and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited].
(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.
Section 34: Application for setting aside arbitral awards:-
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if--
(a) the party making the application [establishes on the basis of the record of the arbitral tribunal that]--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that--
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
1 [Explanation 1.--For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]
[(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.]
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
3[(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.]
33) Now coming to the first argument advanced by the learned Senior Counsels appearing on behalf of the petitioner with regard to constructive res-judicata/res-judicata.
34) From the perusal of all Writ Petitions filed earlier, it is apparent that WPC No. 4235 of 2021 was filed on the grounds that respondent No.1/Council under Section 18 of the MSMED Act, 2006 had no jurisdiction to adjudicate upon the dispute of claim or escalation of price variation; the provisions of the MSMED Act, 2006 would not apply to resolve the dispute of the determination of an agreement, and price variation; the arbitral tribunal should not comprise of even numbers of the arbitrators; the Conciliator should not act as arbitrator; no notice was issued under Section 21 of the MSMED Act, 2006; and the procedure contemplated under the MSMED Act, 2006 were not complied with. The Writ Court as well as the Hon’ble Division Bench dismissed the Writ Petition and the Writ Appeal, respectively, after deciding all issues raised by the petitioner.
35) In Writ Petition (C) No.1481 of 2023, the petitioner had raised certain grounds that respondent No. 2 was not a supplier as per the provisions of Section 2(n) of the MSMED Act, 2006; respondent No. 2 was not registered in terms of Section 8 of the MSMED Act, 2006, therefore, the claim was not maintainable; the claim of the petitioner was barred by limitation according to Section 43 of the Act, 1996; despite the availability of alternative remedy, the petition under Article 226/227 of the Constitution of India was maintainable; and respondent No.1 had already made up its mind to pass an award against the petitioner.
36) In WPC No.4235 of 2021 and WA No. 56 of 2022, the issue raised concerning the jurisdiction under the MSMED Act, 2006 was already answered and it was held by the Hon’ble Division Bench in para-41 of the order that no provision has been brought by the appellant to demonstrate that facilitation Council cannot arbitrate in regard to a claim towards price escalation while conducting arbitration and therefore, the submissions put forth by learned Senior Counsels in this regard are not required to be dealt with.
37) Most of the objections/grounds raised in WPC No.4235 of 2021 were again raised in WPC No. 1481 of 2023, those were the grounds which were already decided in WPC No. 4235 of 2021, and in Writ Appeal No. 56 of 2022, therefore there was no need to answer those grounds and in the present petition also, there is no need to discuss and decide those issues.
38) With regard to new grounds, the Writ Court applied the principle of constructive res-judicata as those grounds could have been raised in WPC No.4235 of 2021 as proceedings pending before Council were within the knowledge of the petitioner and the petitioner participated in the entire proceedings.
39) In the matter of Samir Kumar Majumder versus The Union of India & Ors., (2023 LiveLaw SC 806) the Hon’ble Supreme Court observed as under:-
Law on Constructive Res Judicata:
“33. Almost two centuries ago, in Henderson vs. Henderson, (1843) 3 Hare, 100, the Vice-Chancellor Sir James Wigram felicitously puts the principle thus:-
“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ….”
34. This principle popularly known as the doctrine of constructive res judicata, based on the might and ought theory, has been recognized by this Court in several judgments. In Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra and Another, (2000) 2 SCC 552, this Court held as under:- “22. It was then contended on behalf of the appellants that neither the Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided for carrying forward the vacancies falling in either category. In the absence of such rules which specifically provide for carrying forward the vacancies falling in either category, no such carry-forward rule could be implied either in the Recruitment Rules or in the Seniority Rules. This contention need not detain us any longer because such a contention was available to the appellants in the earlier proceedings, namely, Transfer Application No. 822 of 1991 and the same was not put in issue. That not having been done, it must follow that such a contention is barred by the principles of constructive res judicata. Neither the contesting respondents nor the appellants ever raised this contention at any stage of the proceedings in Transfer Petition No. 822 of 1991. It would, therefore, be too late to raise such a contention when the seniority list has been finalized pursuant to the judgment of MAT, Bombay Bench in Transfer Petition No. 822 of 1991.”
Interest reipublicae ut sit finis litium:
35. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause (See M. Nagabhushana vs. State of Karnataka and Others, (2011) 3 SCC 408.
40) In the matter of Devilal Modi, Proprietor, M/S. Daluram vs Sales Tax Officer, Ratlam and Others reported in 1965 AIR 1150, the Hon’ble Supreme Court held that:-
‘the general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy; one important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice. Considerations of public policy and the principle of finality of judgments were held to be important constituents of the rule of law which cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another. It was further held that if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time, which is plainly inconsistent with considerations of public policy.’
41) The judgments relied on by the learned Senior Counsels regarding the application of the principle of res judicata may be summarized as under:-
(i) Pure questions of law related to the rights of the parties is not a res judicata;
(ii) Issue of jurisdiction is not res judicata, if a Court has no jurisdiction, it is a pure question of law;
(iii) When the decree is held nullity, the principle of constructive res-judicata will have no application;
(iv) When the previous decision is found erroneous, the principle of res-judicata will not apply; and
(v) In a case, where no decision has been taken on the merits, res-judicata would not apply.
42) In WPC No. 1481/2023 the petitioner had challenged the award passed by the Council according to provisions of Section 18(3) of the MSMED Act, 2006 raising various issues and grounds but most of the issues and grounds raised by the petitioner in WPC No. 1481/2023 were already answered in WPC No. 4235 of 2021 and Writ Appeal No. 56 of 2022.
43) The issue of jurisdiction was raised in WPC No. 4235 of 2021 and the same was answered whereby it was specifically held that there is no such provision which bars the jurisdiction of the Facilitation Council from arbitrating the dispute between the parties, therefore, the judgments relied on by the petitioner are of no help.
44) The orders passed in WPC No. 4235 of 2021 and WA No. 56 of 2022, have been affirmed by the Hon’ble Supreme Court, therefore, it cannot be held that the previous decisions were found to be erroneous. The petition (WPC No. 4235 of 2021) was decided on merits therefore also the judgments cited by the petitioner are of no help.
45) The judgments relied on by the learned counsels for the petitioner regarding the alternative remedy are summarized as under:-
(i) The entertainability and maintainability of the petitions are separate terminology or two distinguished concepts, and the petition filed by the petitioner was maintainable;
(iii) Exceptions to the rule of alternate remedy arise where:-
(a) the writ petition has been filed for the enforcement of the fundamental rights protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice;
(c) the order or proceedings are wholly without jurisdiction;
or
(d) the vires of a legislation is challenged;
(e) the alternative remedy is not a bar if the authority or Court acted beyond the scope of jurisdiction; &
(f) If the remedy is onerous, the principle of alternate remedy will not apply.
46) In the matter of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 11, the Hon’ble Supreme Court noted that in an appropriate case in spite of the availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the Writ Petition seeks enforcement of any of the Fundamental Rights; (ii) where there is a failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act are under challenge.
47) In the present case, the petition was not filed for the enforcement of the fundamental rights rather an arbitration award was challenged. The petitioner had not pleaded anywhere in the Writ Petition (WPC No.1481 of 2023) that the opportunity of hearing was not afforded or that the principles of natural justice were not complied with. Thus, the case of the petitioner is not covered within any of the exceptions enumerated in the case of Whirlpool Corp. (supra).
48) Respondent No.1 has not acted beyond jurisdiction as held by the Writ Court in WPC No. 4235 of 2021 and the Hon’ble Division Bench in Writ Appeal No. 56 of 2022, and thus, the judgments relied on by the petitioner’s counsels are of no help. If the alternative remedy is onerous then it can’t be a ground to avoid statutory remedy.
49) In the present case, the award was passed by respondent No.1 on 08.12.2022 and there is a specific provision to challenge such award under Section 34 of the Act, 1996.
50) Section 19 of the MSMED Act, 2006, specifically provides that an award passed under Section 18(3) of the MSMED Act, 2006 can be challenged after depositing 75% of the award amount.
51) There is a statutory provision to challenge the award, and there are other statutory provisions as well which provide that the award can be challenged after a deposit of 75% of the award amount, therefore, the petitioner cannot be permitted to bypass such statutory remedy by filing Writ Petition only on the ground that the said remedy is onerous.
52) In the matter of M/s India Glycols Limited (supra) relied on by the learned Senior Counsel for respondent No. 2, the Hon’ble Supreme Court clearly held that the deviation from statutory provisions is not permissible. It was a case where the Facilitation Council passed an award and a Writ Petition under Article 226/227 of the Constitution of India was filed directly challenging such award, which was dismissed by the High Court. The Hon’ble Supreme Court in para-10 to 13 held as under:-
“10. In terms of Section 19, an application for setting aside an award of the Facilitation Council cannot be entertained by any court unless the appellant has deposited seventy-five per cent of the amount in terms of the award. In view of the provisions of Section 18(4), where the Facilitation Council proceeds to arbitrate upon a dispute, the provisions of the Act of 1996 are to apply to the dispute as if it is in pursuance of an arbitration agreement under sub-section (1) of Section 7 of that Act. Hence, the remedy which is provided under Section 34 of the Act of 1996 would govern an award of the Facilitation Council. However, there is a super added condition which is imposed by Section 19 of MSMED Act 2006 to the effect that an application for setting aside an award can be entertained only upon the appellant depositing with the Council seventy-five per cent of the amount in terms of the award. Section 19 has been introduced as a measure of security for enterprises for whom a special provision is made in the MSMED Act by Parliament. In view of the provisions of Section 18(4), the appellant had a remedy under Section 34 of the Act of 1996 to challenge the award which it failed to pursue.
11 In the judgment of this Court in Gujarat State Civil Supplies Corporation Limited (supra), a two-Judge Bench of the Court has observed, in the course of drawing its conclusions, that: “The proceedings before the Facilitation Council/institute/centre acting as an arbitrator/Arbitral Tribunal under Section 18(3) of the MSMED Act 2006 would be governed by the Arbitration Act, 1996.”
12 The appellant failed to avail of the remedy under Section 34. If it were to do so, it would have been required to deposit seventy-five per cent of the decretal amount. This obligation under the statute was sought to be obviated by taking recourse to the jurisdiction under Articles 226/227 of the Constitution. This was clearly impermissible.
13 For the above reasons, we are in agreement with the view of the Division Bench of the High Court that the writ petition which was instituted by the appellant was not maintainable.”
53) The ground with regard to the quorum of the Council, in WPC No. 4235 of 2021 it was argued that members in even numbers cannot arbitrate the dispute, whereas, in the present case, it is argued that the order sheets were signed by only one member of Council. This issue could have been raised in WPC No. 4235/2021 but not raised and again it was not raised in WPC No. 1481 of 2023 however the same cannot be permitted to be raised for the first time in the review petition.
54) With regard to the contention regarding the registration under Section 8 of the MSMED Act, 2006, the petitioner was registered with MSMED/SSI on 17.10.2006 and its registration No. is 22102316 and a memo was issued on 14.12.2007, therefore, the contention of the learned counsels for the petitioner that the petitioner was not registered according to the provisions of Section 8 of the MSMED Act, 2006 is misconceived.
55) The Claim was filed by respondent No.2 before the Council, but no objection with regard to maintainability was raised by the petitioner and for the first time this issue is being raised in the review petition, even though this issue was not raised in WPC No. 1481 of 2023.
56) The objection with regard to the applicability of Section 18 of the Act, 1996, this issue was raised by the petitioner and the same was rejected in the earlier Writ Petition and Writ Appeal.
57) The issue of price variation was answered in WPC No. 4235 of 2021 and Writ Appeal No. 56 of 2022; therefore, there is no need to enter into or decide on that issue again.
58) In the matter of Jharkhand Urja Vikas Nigam (supra), the Hon’ble Supreme Court set aside the impugned arbitral award as the entire proceeding was conducted by the Council without affording any opportunity for a hearing and the procedure contemplated under Section 18 of the MSMED Act, 2006 was not complied with, therefore, the facts of the present case are clearly distinguishable from the facts of that case.
59) In the present case, the petitioner from time to time challenged the proceedings of the Facilitation Council by filing Writ Petitions before this Court and also challenged the award before the the Writ Court in WPC No. 1481 of 2021; thus, the petitioner cannot be permitted to re-argue the questions which have already been decided or which were not raised in the earlier Writ Petitions as the same would be tantamount to hearing of an appeal.
60) The submission with regard to the judgments which were in existence and relevant were not taken into consideration by the Writ Court, firstly such judgments were not cited before the writ Court and if one judgment is overlooked or not considered, it would not change the fate of the case as in earlier rounds of the litigation, the matter went up to the Supreme Court and the proceedings of the facilitation council were held within the jurisdiction, therefore, the submission made by the learned Senior Counsels has no force.
61) With regard to the oral hearing, it can safely be held that this ground was not raised in the Writ Petition and further, no objection was raised in this regard before the Council. The petitioner participated in the proceedings and after passing the award, raised this ground for the first time in the review petition. Further, with the consent of the parties case was closed by the Council and both the parties agreed to submit written submissions therefore this ground is also not available to the petitioner.
62) An alternative remedy was available to the petitioner immediately after the passing of the award by the Council and knowing very well the fact that remedy lies elsewhere, the petitioner filed the Writ Petition challenging the award, in such a situation, the petition was not maintainable before the Writ Court and this Court cannot lose sight of the statutory provisions contained in Section 19 of the MSMED Act, 2006 and Section 34 of the Act, 1996.
63) On the anvil of the above interpretation, the following three points may be considered to deal with a review petition:-
(i) Issues and grounds raised in earlier litigations answered by the Court can’t be raised in a review petition otherwise review petition would become an appeal and the court entertaining such a review petition would act as an appellate court.
(ii) Issues and grounds not raised in the earlier Writ Petition but are being raised in the review petition, such issues and grounds can’t be raised in the review petition, particularly when all the issues were within the knowledge of the petitioner.
(iii) New grounds which were never raised in earlier litigations but could have been raised, in such a condition and situation, the principle of constructive res-judicata applies with its full vigour.
64) Taking into consideration the facts discussed above, in the considered opinion of this Court, no case is made out for review/recall of the order dated 12.06.2023 passed in WPC No. 1481 of 2023. Consequently, this review petition fails and is hereby dismissed, however, the liberty is reserved in favour of the petitioner as granted in WPC No.1481 of 2023.
