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19/04/2024

If Industrial Promotion Allowance Agreed To Be Paid On Investment Of Certain Amount Per Factory Basis Then Defence For Non Payment Of Such Allowance Merely Because Of A Clause That There Must Be A Total Amount Of Investment In All Factories Over The State Can't Be Allowed : Calcutta High Court
Facts and Argument: petitioner engaged in business of producing and selling of Ductile Iron Pipes, Pig Iron and Metallurgical Coke.
A scheme was introduced by respondent no 1 named West Bengal Incentive Scheme ( WBIS) 2000. Where Industrial Promotional Allowance proposed to be given on a subjective basis in specific location mentioned therein.
Under clause 18 of the said act petitioner was applied to the Government and it was approved on March 22, 2004 granting incentives for expansion of new manufacturing unit of the petitioner by way of setting up three units at Khardah, Haldia and Kurseong with an investment of rupees 400 crores for manufacturing of some specific items. The mode of calculation of IPA as per clause 4 is the unit will apply in the prescribed form on commencement of commercial production and on investment of rupees 25 crores.
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Learned senior Advocate for the petitioner submitted that due to delay in issuance of CCT claim for the period 2011 to 2015 could not be made in before 2020.
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Judgement: As per the clause 4 and 11 of the scheme the amount of investment for availing IPA is 25 crores per unit where as the amount 400 crores mentioned in the clause 18 of such scheme is the maximum limit of investment throughout the 3 units as mentioned in such clause.
The incentive package offer to the petitioner is comprised in Order No: 1215/JS/DC dated March 22, 2004. By Government of West Bengal.
In clause (I) of the approval , it is expressed that the offer should be available for a period of 15 year or till the financial cap is reached , whichever ends earlier. So, claim for investment from the period of 2011 to 2015 is within the period offer in incentive package.
Therefore court allow the petition and directs the respondent no : 1 to pay the amount of subsidy to the petitioner within two months.

15/04/2024

2.Petitioner is a private company engaged into an agreement with respondents no.2 who is a government of Kerala undertaking On 24.11.2014 and agreement was executed between them, by which petitioner was to make person employable in security profession by setting up a CEIS ( centre of excellence in security sector). Thereafter dispute arose between the parties above mentioned which led 2nd respondent referred the dispute to Arbitration by invoking clause 37(2) of the agreement. On 5.9.22 Government of Kerala issued a G.O appointing the 1st respondent as the sole arbitrator. According to the petitioner, due to having interest in the dispute Government of Kerala not entitled to appoint arbitrator as it has 100% share in the respondent no. 2 company.
2nd respondent also argued that petitioner's approach towards this court is not maintainable under section 14 of this act as this court does not fulfill the definition of "court" under section 2(1)(e) of the act.
2nd Respondent also have argued that petitioner's objection regarding appointment of Arbitrator at this stage attract principal of estoppel at therefore not maintainable Because he shows his assend* towards Arbitration proceedings as he filled of statement of defence , counter claim and active participation in Arbitration proceedings.

Judgement: As per the provision of sec 12(5) of Arbitration and Conciliation Act 1996 as ammendment by Act 3 of 2016 a person can't be qualified as arbitrator if he has interest in the dispute regarding subject within 19 probabilities described under the VIIth schedule of the act Arbitrator appoint unilaterally by Govt. Of Kerala who is also one of the parties to the dispute.
Court is also in opinion that exemption from application of sec 12(5) of the act only possible if it is expressed in writing.
The apex court held in "Bharat broadband" that when the appointment of Arbitrator itself is void ab initio application of waiver or estoppel does not lie against the person challenging the appointment.

In respondent no 2's argument that learned court would not come within the definition of court as per section 2(1)(e), court relied upon a judgement by honorable division bench of Kerala High Court namely "pg 13" said that this court can appoint, terminate the mandate and substitute Arbitrator as per section 11(6), 14 and 15 of the act.

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