ORDER : 1. Rule returnable forthwith. Ms. Dhwani Tripathi, learned AGP waives service of notice on behalf of respondents no. 1 & 3 and Mr. P.A. Medh, learned advocate waives service of notice of rule on behalf of respondent no. 2. 2. Heard learned advocates for the parties. 3. By way of the present petition, the petitioner has challenged the order dated 20.09.2021 passed by respondent no. 1 – Micro and Small Enterprises Facilitaion Council, Gandhinagar (for short ‘the Council’). 4. Facts in brief would indicate that the petitioner – a company incorporated under the provisions of the Companies Act is engaged in the business of production, marketing and sale of pharmaceuticals. The respondent no. 2 is engaged in the business of building and operating software and information technology application. The petitioner and respondent no. 2 entered into an agreement by which in accordance with the requirements of the petitioner to operate and manage software. In execution of the agreement and business that was undertaken thereto certain disputes arose between the parties. 5. Mr. A.S. Vakil, learned advocate appearing for the petitioner would submit that in accordance with Article 9(g) of the agreement dated 24.06.2019 which was agreed between the parties that the jurisdiction in case of any dispute which may arise out of or in connection with the agreement would be with the courts within the city limits of Ahmedabad which shall have exclusive and sole jurisdiction. He would submit that in the notices issued by respondent no. 2 one of which is on record of 09.05.2020, a specific reference was made in paras 7 and 9 thereof that they would failing the petitioner honouring the claim reserved to filing the suit for recovery and take action civil and/or criminal by enforcing clause (g) of Article 9 of the agreement. He would also invite the attention of the reference made to the application filed before the council to undertake that in the details of the action which was sought to be laid out therein, reference was made to the notice and the replies. 5.1 Mr. Vakil would submit that essentially therefore it was the plea of the petitioner that when respondents themselves had accepted that they would refer to the provisions of Article 9(g) of the agreement, reference to the council at Gandhinagar was without jurisdiction. 5.1 Mr. Vakil would submit that essentially therefore it was the plea of the petitioner that when respondents themselves had accepted that they would refer to the provisions of Article 9(g) of the agreement, reference to the council at Gandhinagar was without jurisdiction. Further inviting the court’s attention to the reply filed to the application through an email dated 18.09.2021, Mr. Vakil would submit that it was the specific contention of the petitioner before the council that once the agreement itself provided a mechanism for settlement of disputes, the reference ought to be dismissed. Without taking into consideration the reply so filed, by the impugned order dated 20.09.2021, the Council has by the order referred the dispute for arbitration. 5.2 In support of his submissions, Mr. Vakil would rely on several decisions one of which is that of the Delhi High Court in the case of S.N. Malhotra & Sons vs. Airport Authority of India [2008 SCC OnLine Del 442], particularly paras 31 & 33. He would also press into service the decision of the Apex Court in the case of General Manager, Sri Siddheshwara Cooperative Bank Limited and Another vs. Ikbal and Others [ (2013) 10 SCC 83 ] to indicate the aspect of permissibility of waiver of statutory rights. Also reliance would be placed on the decision of this court in the case of Punja Gokal vs. State of Gujarat [ 1984 (2) GLR 1210 ] in respect of submission that council did not take into consideration the contents of the reply filed by the petitioner. 6. Mr. P.A. Medh, learned advocate appearing for respondent no. 2 would raise a preliminary contention with regard to the maintainability of the petition and also in light thereof relying on Section 19 to indicate that when an application is made to set aside the order or a decree or an award passed by the council a claim shall not be entertained by any court unless an amount to the % of the amount is extent of 75% of the amount is so deposited before this court. He would therefore submit that unless and until a mandate as prescribed under section 19 is followed, the petition need not be entertained. 6.1 Mr. Medh would further invite the attention of the court to the dates to indicate that the respondent no. He would therefore submit that unless and until a mandate as prescribed under section 19 is followed, the petition need not be entertained. 6.1 Mr. Medh would further invite the attention of the court to the dates to indicate that the respondent no. 2 approached the council invoking section 18 of the MSME Act in August 2020. During the conciliation proceedings held in the interregnum which finally culminated into order passed on 20.09.2021, the petitioner never came forward to object to the jurisdiction of the council and in fact participated in the conciliation process. To this Mr. A.S. Vakil, learned advocate for the petitioner in rejoinder would submit that except adjourning the conciliation proceedings, no concrete proceedings were held by the council. 7. Considering the submissions made and having perused the relevant papers though Mr. Medh, learned advocate for the respondent no. 2 would have reservations on the aspect of the terminology used in Article 9(g) inasmuch as to submit that even the Tribunal is part of the agreed for a between the parties, it will be in the fitness of things to dispose of this matter only on the ground of the council having not taken into consideration the reply filed by the petitioner on 18.09.2021 through email. Perusal of the notice sent by respondent no. 2 to the petitioner indicated that it could take recourse to Article 9(g) of the agreement for the outstanding liabilities if any viz-a-viz the petitioner. In light of this, when the application under Section 18 was moved by respondent no. 2, the petitioner in detail filed a reply on the aspect of jurisdiction in light of Article 9(g) of the agreement and prayed that the reference be dismissed. 7.1 In light of the decision of the Delhi High Court in the case of S.N. Malhotra & Sons (supra) where paras 31 – 33 read as under, it was incumbent upon the council when specific counter was raised by the petitioner on the question of the council having no jurisdiction to have delved upon the issue and in passing the order referring the matter for arbitration positively adjudicating the issue of jurisdiction that was rested in it. “31. “31. To conclude, although ordinarily, we would have been inclined to hold that in so far as jurisdictional issues are concerned, the contours of Section 34 are wide enough to enable the Court to consider such issues though not raised before the arbitrator, apart from other issues. But in the teeth of the statutory provisions mandating time limits for the setting up of such pleas [Section 16(2), 16(3), 16(4)] and in the teeth of Section 4 of the Act and in view of the law laid by the Supreme Court, jurisdictional objections, in our view, cannot be permitted to be raised at a later point of time, even under Section 34. To hold otherwise, would be to render otiose the provisions of Subsections (2) to (6) of Section 16 as well as Section 4 of the Act, and may even result in making a serious inroad into the provisions of Section 5 of the Act; which is aimed at cabining and confining judicial intervention in the arbitration process to the very minimum. 32. A cursory glance at the Act is sufficient to show that the salient feature of the Act of 1996 in juxtaposition to the Act of 1940 is the curb imposed on the extent of judicial intervention in the arbitration process. Section 5, which is poised next to Section 4 of the Act, reads as under: “5. Extent of judicial intervention.- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” 33. We, therefore, hold that the respondent must be deemed to have waived any objection to the jurisdiction of the arbitral tribunal when it chose not to raise the plea now being raised by it, though it was fully aware of the terms of the agreement entered into between the parties. Section 34(iv) cannot come to the rescue of the respondent as the said section cannot be read in isolation and allowed to render otiose the provisions of Sections 4, 5 and 16 of the Act which, in a sense, are the high points of the Act. Section 34(iv) cannot come to the rescue of the respondent as the said section cannot be read in isolation and allowed to render otiose the provisions of Sections 4, 5 and 16 of the Act which, in a sense, are the high points of the Act. Any other interpretation of the aforesaid provisions of the statute would not only deprive the winning party of the fruit of its hard earned labour at the end of a long drawn out battle, but, in our considered opinion, would be opposed to public policy, as it would inevitably result in colossal waste of time, money and energy, all of which are necessarily expended in the arbitral process. This apart, it would frustrate the object of the Act itself viz., to provide for expeditious disposal of a dispute by recourse to arbitration.” 7.2 This too was incumbent for the council to do so in light of the decision in the case of Ikbal and Others (supra) which holds that even if there was a statutory right, the same could be waived as was canvassed by the learned counsel for the petitioner in light of the language of the legal notice of respondent no. 2. 8. As far as the objection regarding pre-deposit in case of Section 19 is concerned, the issue is at an interim stage and therefore prima facie, the aspect of pre-deposit of 75% of amount in terms of the decree or award may not be applicable in the facts of the case. 9. In light of what is stated hereinabove, impugned order dated 20.09.2021 is quashed and set aside. Proceedings are remanded to the council to take a decision afresh in light of the objections raised by the petitioner in his reply dated 18.09.2021 filed through email and after hearing the parties. All contentions of the respective parties are kept open. The parties shall appear before the council on 12.01.2023 on which date the council shall endeavour to proceed to hear the matter on the aspect of the issue raised in this petition or fix further schedule as per its convenience to decide the issue of jurisdiction within a period of four weeks thereafter. 10. Petition is accordingly allowed. Rule is made absolute accordingly.