Source: Govt commits to speedy dispute resolution | The Herald June 8, 2017
Herald Reporter
Government is committed to creating a conducive business environment anchored on efficient justice delivery in commercial disputes, Acting President Emmerson Mnangagwa has said. He said the country’s legislative framework should equip the courts to handle business cases expeditiously.Acting President Mnangagwa, who also oversees the Ministry of Justice, Legal and Parliamentary Affairs, said this on Tuesday in the National Assembly while steering the Estate Administrators Amendment Bill now in its second reading stage.
“Government’s role in relation to the creation of a conducive and viable business environment and the effective, efficient and fair administration of justice is beyond question.
“The nation’s thrust towards economic growth through the ease of doing business initiative is firmly anchored on an efficient justice delivery system insofar as the resolution of commercial and business matters is concerned.
“Government is, therefore, fully committed towards the creation of a sound and robust legal framework, which is essential for the establishment of a conducive and productive business environment,” said Acting President Mnangagwa.
“There is, therefore, no doubt that if our legislative framework equips the courts to handle business cases expeditiously, the country’s economic recovery and growth agenda will become achievable.
“In the whole, our economic goals as enunciated in the economic blueprint, Zim-Asset, will be realised.”
He said there was consensus that the resolution of insolvency cases was one of the key factors crucial to the effective and efficient running of business enterprises.
“The current legislation governing the resolution of insolvency cases is fragmented and scattered in several pieces of legislation. There is, also, duplication of duties between the Council of Estate Administrators and the Master of the High Court, thereby prolonging the process of resolving insolvency matters,” he said.
“These shortcomings, which adversely affect the ease of doing business in the country, have, therefore, necessitated the crafting of the Estate Administrators (Amendment Bill) 2016, which seeks to amend the Estate Administrators Act (Chapter 7:20),” said Acting President Mnangagwa.
He said clauses five and seven of the Bill sought to amend the principal Act by broadening the scope of application of the Act to include the Insolvency Practitioner in relation to the register kept by the Council of Estate Administrators and prohibition of practising without a certificate.
In addition to the register of Estate Administrators, said Acting President Mnangagwa, the council shall establish and maintain a register of insolvency practitioners.
In terms of the new provisions, the council shall establish and maintain a register to be known as the Register of Insolvency Practitioners to be open to the public for inspection.
Justice, Legal and Parliamentary Affairs Parliamentary Portfolio Committee chairperson Cde Ziyambi Ziyambi said members of the public felt that prescribing a fee to access the register, which is a public document, would hinder accountability.
The committee, however, felt a reasonable fee should be levied. “Regarding payment of a fee to access the register, it was the committee’s finding that a reasonable fee be levied to access the register.
“Instead of shooting down the proposed amendment, regard should be given to the amount levied. “n this instance, payment of a fee is in line with international best practice,” said Cde Ziyambi.
COMMENTS
SPEEDY RESOLUTIONS AS PER ARBITRATION UNDER MSMED ACT ALMOST BLOCKED BY SUPREME COURT OF INDIA This is concerning the reportable Judgment dated 5.12.2017 in Civil application 5150/2017, in the matter between Bank of India and Yadav Consultancy services pvt ltd.
The matter arises due to denial of charges of Yadav Consultancy Services Pvt ltd (Court commissioner-receiver) by the Bank of India for the services rendered in its interest, but as per orders of a judicial process DRT Pune.
The charges payable to a receiver are to be paid by the party at whose instance the receiver is appointed, and same being cost of recovery proceedings is reimbursed by adjusting to loan account. This has been procedure so far in accordance with the procedure for practice of DRT in state of Maharastra, etc. However Bank opined that since the sale certificate is already issued, though possession could not be handed to Auction Purchaser due to stay of the courts still the charges for maintenance of property are to be borne by the auction Purchasers. Therefore the bank did not pay charges to Yadav Consultancy Services Pvt ltd despite continued orders of the DRT.
After a failure to receive payment for about sixty months, Yadav Consultancy Services Pvt ltd invoked provisions of the ”The Micro, Small and Medium Enterprises Development Act 2006′ before the MSMEDF Council, Pune against the DRT and Bank , on the basis of appointment letter.
The MSMEDF adjudged an award in favor of Yadav Consultancy Services Pvt ltd , directing DRT to ensure the payment is made as per award, and the bank was directed to pay as per sec 15/16 of MSMED Act 2006 within a month, failing which it would be with 24% interest. After the expiry of limitation period the award was put for execution DKT 1741/12 before ‘District Judge’ pune, who attached accounts of the Bank as per provisions of the Order 21 Rule 46. The bank resorted to extra judicial remedy of a WRIT petition before Hon’ble High Court, Mumbai paid some amount as per award and the execution proceedings were stayed. Thereafter Bank filed an application MCA 352/13 under sec 19 of MSMED Act 2006 which was dismissed. Bank then filed appeal u/s 37 of ‘The arbitration and Conciliation Act1996′ before the Hon’ble High Court, Mumbai ARA/15/14, which was also dismissed with directions to pay additional cost of 500000/- to Yadav Consultancy Services Pvt ltd.
Again the execution proceedings in DKT 1741/12 were revived. The Yadav Consultancy Services Pvt ltd was paid 10 million along with interest thereon. While bank could get exparte stay on execution proceedings from the Hon”ble Supreme Court in SLP 12444/16 which was later converted to Civil application 5150/2017.
The two bench of Hon”ble Supreme Court Hon’ble Justice Mr. Kurian Joseph and Hon’ble justice R. Bhanumati, while deciding have made landmark precedents and far reaching impact on the execution of an award passed in arbitral proceedings by special enactment of ”The Micro, Small and Medium Enterprises Development Act 2006′ to adress problem of delayed payments to supplier, services providers from buyers who normally prolong the payment by bullying tactics.
1 That Hon”ble Supreme Court can entertain SLP/CA from a non juristic company as per provisions of the Indian companies Act .
2 That the Hon”ble Supreme Court despite being the last court in hierarchy , still can disturb concurrent findings of MSMEDF council which has been upheld by two appellate courts while exercising powers under Article 136 of the constitution of India.
3 that the Hon”ble Supreme Court has powers to intervene in execution proceedings of award passed in arbitral proceedings , stay the execution proceedings and reverse the delivery of justice.
4 That an application for setting aside an award can be entertained and decided without Buyer depositing 75% of the mandatory award and without allowing the services providing of the relief during the pendency of litigation.
5 That an auction Purchaser is liable to pay the maintenance of auctioned property from the date of sale Certificate, despite possession is not handed over to auction purchaser due to stay higher courts.
6 That because the Presiding Officer, DRT is qualified to be a District Judge,and Chairman DRAT a high court judge, therefore the DRT has jurisdiction to entertain application to decide dispute of delayed payment between the DRT and the Yadav Consultancy Services Pvt ltd. under provisions of ”The Micro, Small and Medium Enterprises Development Act 2006’ .
a. It follows from the above point that the jurisdiction of a court conferred under the statute can be scuttled by Hon”ble Supreme Court because of courts interference in the matter in different manner.
b. further follows that the DRT is not bound by the limited jurisdiction as per sec 17 chapter II of the RDDB Act 1993.
7 That despite subsequent acts of the petitioner against its own prayers in the petition cannot deem the petition as in fructuous and still can be decided by the Hon”ble Supreme Court.
8 That despite contempt committed by the petitioner right in face of the court still the petition need not be dismissed for the contemptuous act and or Order 39 rule 11 of ‘Code of Civil Procedure’.
These precedents shake the very basis of enactments the ‘The arbitration and Conciliation Act 1996′ and the ”The Micro, Small and Medium Enterprises Development Act 2006’ for speedy of alternate dispute resolutions