Aakash Agro Through Proprietor Sanjay Marotrao Punde v. Micro And Small Enterprise Facilitation Council (MSEFC)
2023-09-05
PARTH PRATEEM SAHU
body2023
DigiLaw.ai
ORDER : 1. The petitioner by this writ petition has challenged the legality and sustainability of order dated 29.11.2022 passed by the Micro and Small Enterprises Facilitation Council (for short “MSE Facilitation Council”). 2. Facts relevant for disposal of this writ petition are that petitioner is distributor of agricultural equipments/articles used in agricultural activities. In the business of distribution, petitioner purchased the goods from respondent No.2 (supplier) but failed to pay the amount towards the good purchased by it to the tune of Rs.6,36,450/-. Respondent No.2, thereafter, submitted reference application before respondent No.1, upon which, proceedings of conciliation was initiated. Notice was issued to the petitioner in which he did not appear. He was also served notice through e-mail and when petitioner failed to appear before MSE Facilitation Council even after issuance of the notices on different dates, paper publication was also ordered. The MSE Facilitation Council thereafter proceeded ex-parte and passed the order (Annexure P-1). Aggrieved by the order passed by the MSE Facilitation Council, this writ petition is filed seeking following reliefs:- “(i) It is therefore prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction and setaside/quash the order dated 29.11.2022 MSME facilitation council, Raipur passed in application no.CG/15/S/CGH/00155 in the interest dfof justice. (ii) It is therefore prayed that this Hon'ble Court may kindly be pleased to call for the entire records of the present case from the MSME facilitation council, Raipur. (iii) Any other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case be also granted.” 3. Learned counsel for the petitioner submits that on the date of entering into the contract, respondent No.2 was not registered as Micro, Small or Medium Enterprise under the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “MSME Act”) and therefore, MSE Facilitation Council constituted under the Act of 2006 was not having jurisdiction to entertain application/reference submitted by respondent No.2. Order passed by the MSE Facilitation Council is therefore without jurisdiction. It is also contention of learned counsel for the petitioner that at the time of submission of Reference and issuance of notice, he suffered from serious medical ailment and therefore, he could not able to participate in the proceedings before the MSE Facilitation Council.
Order passed by the MSE Facilitation Council is therefore without jurisdiction. It is also contention of learned counsel for the petitioner that at the time of submission of Reference and issuance of notice, he suffered from serious medical ailment and therefore, he could not able to participate in the proceedings before the MSE Facilitation Council. Reference application is submitted on false ground with inordinate delay of about 4 years and therefore the Reference Application ought not to have been ordered on merits as the application was barred by limitation. Petitioner has also changed address and therefore notice was not served. He submits that date of submission of Udyog Aadhaar Memorandum is 07.05.2016 and was valid up to 30.06.2022. As on the date of entering into the contract, respondent No.2 was not having registration certificate as Micro, Medium or Small Enterprise, MSE Facilitation Council was not having jurisdiction to entertain application. In support of his contention, he placed reliance upon the decision in the case of Silpi Industries etc. Vs. Kerala State Road Transport Corporation and Anr. (2021 SCC OnLine SC 439). 4. Learned counsel for the respondent opposes the submission of learned counsel for the petitioner and would submit that pleadings made by the petitioner that petitioner has changed the address is not correct on the face of record. Petitioner in writ petition has mentioned same address which is also mentioned in proceedings before the MSE Facilitation Council and, therefore, the said submission of learned counsel for the petitioner based on the pleading in the writ petition is baseless. MSE Facilitation Council after receipt of application for reference had issued several notices to the petitioner in which he failed to appear and thereafter ex-parte proceedings was drawn and order (Annexure R-1) is passed. It is contention of learned counsel for the respondent that in the facts of the case, writ petition will not lie and only remedy available to the petitioner to challenge the impugned award/order is by filing an application under Section 34 of the Arbitration and Reconciliation Act, 1996 (for short “Act of 1996”) read with Section 19 of the MSME Act.
Case/application was filed on 08.11.2016 offline directly before the MSE Facilitation Council at Raipur and at later point of time, MSE Facilitation Council vide its letter dated 12.03.2018 directed respondent No.2 to file its claim online on Samadhan Portal and therefore respondent No.2 was compelled to file its claim on online portal of respondent No.1, and therefore claim was within the period of limitation. When petitioner failed to appear on the notice issued by the MSE Facilitation Council, newspaper publication was also made with regard to notice of proceedings before MSE Facilitation Council. Petitioner once admitted in the writ petition about the dues to be paid to respondent No.2 is not permitted to challenge the order of MSE Facilitation Council. Relying upon the decision in the case of Union Of India & Ors Vs. Major General Madan Lal Yadav (1996) 4 SCC 127 , it is submitted that the petitioner cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. 5. I have heard learned counsel for the parties and also perused the documents annexed along with writ petition. 6. So far as submission of learned counsel for the petitioner with regard to registration of respondent No.2 as Micro, Medium or Small Enterprise is concerned, petitioner along with writ petition has placed on record “Udyog Aadhaar Registration Certificate”. In the said certificate, under the head- Major Activity, “Manufacturing” and under the head- Enterprise Type, “Small” is mentioned and details of previous registration is also mentioned therein. The details which is mentioned in the Udyog Aadhaar Certificate filed by the petitioner is the details of Entrepreneur Memorandum mentioned in acknowledgment issued by the District Trade and Industries Centre mentioning “small enterprises”. Date of issue is mentioned as 12.01.2011. According to pleadings made in the writ petition, the period of supply is from 23.10.2013 to 13.09.2014. 7.
The details which is mentioned in the Udyog Aadhaar Certificate filed by the petitioner is the details of Entrepreneur Memorandum mentioned in acknowledgment issued by the District Trade and Industries Centre mentioning “small enterprises”. Date of issue is mentioned as 12.01.2011. According to pleadings made in the writ petition, the period of supply is from 23.10.2013 to 13.09.2014. 7. In view of aforementioned documents available on record, acknowledgment of entrepreneur memorandum of respondent No.2 with regard to manufacturing of articles mentioned therein, the Plant and Machinery and date of investment, change of category from Micro/Small to Small/Medium as 26.07.2007 and further similar details including registration number is also mentioned in the new Udyog Aadhaar Registration Certificate issued by the Ministry of Micro, Small or Medium Enterprises, I find it difficult to accept submission of learned counsel for the petitioner that on the date of entering into the contract for supply of goods, respondent No.2 was not registered as Micro, Small or Medium Enterprise. 8. For the aforementioned, submission of learned counsel for the petitioner that as respondent No.2 was not registered as Micro, Small or Medium Enterprise, therefore, MSE Facilitation Council erred in accepting Reference Application and proceeding with the same without any jurisdiction is hereby repelled. 9. Other grounds which are raised by learned counsel for the petitioner is on merits of the case. Once the order is passed by the MSE Facilitation Council on merits, further procedure as provided to challenge the Award/order under the Act of 1996 shall apply and writ petition will not be maintainable as observed by Hon’ble Supreme Court in the case of S.B.P. & Co. Vs. Patel Engineering Ltd. & Anr (2005) 8 SCC 618 and the Act of 1996 is self-sufficient and therefore the provision and procedure prescribed under the Act of 1996 is required to be availed and exhausted by the parties instead of filing writ petition under Article 226 of the Constitution of India or any other jurisdiction. Hon’ble Supreme Court in the case of Bhaven Construction through authorized signatory Premjibhai K. Shah Vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Anr.
Hon’ble Supreme Court in the case of Bhaven Construction through authorized signatory Premjibhai K. Shah Vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Anr. (Civil Appeal No. 14665 of 2015 decided on 6th January 2021) observed that against the order of Tribunal passed under Section 16 (2) of the Act of 1996, the only mechanism of challenge is under Section 34 of the Act of 1996 as the Act of 1996 is a complete code. 10. For the aforementioned discussion, I do not find any merit in this writ petition. Accordingly, this writ petition is dismissed as the petitioner is having alternate efficacious remedy available to him under the law.