JUDGMENT : Anubha Rawat Choudhary, J. This Letters Patent Appeal has been filed against the judgment dated 03.03.2016 passed in W.P.(C) No. 6 of 2014 dismissing the writ petition holding that the challenge to the award passed by Jharkhand Micro and Small Enterprises Facilitation Council (hereinafter referred to as “Facilitation Council”) communicated through memo no. 3342 dated 12.12.2013 should not be entertained in a proceeding under Article 226 of the Constitution of India. However, a liberty has been reserved with the appellant no.1 namely M/s. G.P.T. Infraprojects Limited (hereinafter referred to as “the buyer”) to avail the statutory remedy available under law. While dismissing the writ petition, the learned writ Court has also observed that the buyer is also under an obligation to make deposit of 75% of the awarded amount before his application under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act of 1996”) is entertained by the concerned Court. 2. The writ petition was filed for quashing of the impugned order/award dated 12.12.2013 passed by the Facilitation Council under the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “the Act of 2006”) in Case No. JHMSEFC No. 01 of 2013 on a reference made by Messrs Miki Wires (P) Limited (hereinafter referred to as “the supplier”). 3. The buyer had challenged the award, inter alia, on the ground of composition of the Tribunal by stating that the same was not in accordance with the provisions of section 21 of the Act of 2006 as there were more than five members. The challenge was also based on the ground that Facilitation Council had without evolving any procedure, proceeded to decide the claim by a cryptic order which did not contain any reason as to admissibility of the amount claimed by way of adequate proof. It was asserted that though the provisions of Code of Civil Procedure (hereinafter referred to as “CPC”) and Evidence Act were not applicable, but the claim was required to be established. It was also asserted that the State Government had failed to frame any Rules laying down procedure to be followed by the Facilitation Council in entertaining such reference to adjudicate claims in terms of section 30 of the Act of 2006. It was also asserted that the State Government had failed to frame any Rules laying down procedure to be followed by the Facilitation Council in entertaining such reference to adjudicate claims in terms of section 30 of the Act of 2006. It was asserted that the award impugned in the writ proceedings suffered from jurisdictional irregularity which required interference under Article 226 of the Constitution of India. 4. A counter-affidavit was filed by the supplier before the learned writ Court. It was argued by the learned Senior counsel appearing on behalf of the supplier that the writ petitioners, after surrendering to the jurisdiction of the Facilitation Council and after having failed to obtain any stay in respect of the proceedings from Hon’ble Calcutta High Court, had chosen to challenge the award on untenable grounds relating to composition of Tribunal or the procedure followed by the Tribunal. It was also asserted that the provisions of the Act of 1996 were to be followed in terms of section 18(3) by the Facilitation Council while deciding the dispute on reference in the manner of an arbitration proceeding and the Tribunal had the jurisdiction to follow the Rules of procedures which the parties agreed or on failure thereof, to conduct the proceedings in a manner it considers appropriate. It was asserted that the writ petitioners had the alternative remedy under section 34 of the Act of 1996 to challenge the award, but the writ petition was filed only to escape the liability to deposit 75% of the awarded amount in terms of the provisions of the Act of 2006. It was submitted on merits that when the claim of the applicant/supplier was not resisted by any written statement, the Facilitation Council was fully justified in declaring the award after considering materials available on record and it was insisted that the writ petition be dismissed. 5. The learned writ Court was of the view that such challenge to award should not be entertained in a proceeding under Article 226 of the Constitution of India and dismissed the writ petition with a liberty to the petitioners (appellants herein) to avail the statutory remedy available under the law. The learned writ Court dismissed the writ petition by recording the findings as under: “7. I have considered the submission of the parties and gone through relevant materials on record including the impugned Award. The learned writ Court dismissed the writ petition by recording the findings as under: “7. I have considered the submission of the parties and gone through relevant materials on record including the impugned Award. A bare perusal of the pleadings and the impugned award show that the applicant/supplier was a Small Enterprises registered firm with the District Industry Centre, Ranchi on whom purchase orders were placed by the petitioner/buyer for supply of certain items of specified description. Such claims are duly entertainable before the Facilitation Council on reference made in terms of Section 18(1) of the Act of 2006. This is also not a ground of challenge by the petitioner that the reference itself was not maintainable as the supplier was not a enterprise covered under the provisions of the Act of 2006. Grounds of challenge as noted herein above are only on the composition of Tribunal and lack of Rules of procedure laid down to be followed by the Tribunal in arriving at such adjudication. 8. Facts on record noticed hereinabove also show that at interlocutory stages petitioner invoked section 8 and 9 of the Arbitration and Conciliation Act, 1996 during the pendency of the proceeding before the Facilitation Council. There was no interference by the learned Court of Additional District Judge, Barasat, West Bengal or the Hon'ble Calcutta High Court. Moreover the Calcutta High Court has made a clear observation while rejecting the stay application that the parties are free to make their respective submission before the Tribunal. As a matter of fact, despite refusal of such stay, petitioner never chose to contest the case on merits rather the records show that only adjournment were sought at one or the other pretext. After several adjournments and and by giving last opportunity, when the petitioner/buyer did not file any written statement to contest the claim of the applicant/supplier on merits, the Tribunal has proceeded to adjudicate the reference. So far as the question relating to composition of the Arbitral Tribunal or failure to follow arbitral procedure is concerned, these are grounds specifically available under Section 34 under Chapter VII of the Arbitration and Conciliation Act, 1996 where recourse against the Arbitral Award can be made by the party aggrieved by the Award. So far as the question relating to composition of the Arbitral Tribunal or failure to follow arbitral procedure is concerned, these are grounds specifically available under Section 34 under Chapter VII of the Arbitration and Conciliation Act, 1996 where recourse against the Arbitral Award can be made by the party aggrieved by the Award. It also appears from the perusal of provisions of Section 18(3) of the Act of 2006 that while resorting to decide the dispute in the nature of arbitration proceeding, the provisions of Arbitration and Conciliation Act, 1996 shall apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to Sub Section (1) of Section 7 of the Act of 1996. Provisions relating to procedure prescribed at Section 19 of the Act of 1996 are quoted hereinunder:- “19. Determination of rules of procedure-(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872). (2) Subject to this part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. (3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate. (4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence”. It is evident that parties in any such Arbitration proceeding can agree to any such procedure and on failure to do so the arbirtal tribunal is free to conduct the proceeding in the manner it considers appropriate. Working of the Act of 2006 and the conduct of Arbitration proceeding by the Council was not impossible in absence of framing of rules laying down procedure. The Facilitation Council has a statutory obligation to decide such reference within a stipulated time period of 90 days. The only requirement and consideration to be followed in deciding such reference is to have a procedure which is in conformity with the principles of natural justice and also conforms to the general principles of the Evidence Act so far as admissibility of the claim is concerned. The only requirement and consideration to be followed in deciding such reference is to have a procedure which is in conformity with the principles of natural justice and also conforms to the general principles of the Evidence Act so far as admissibility of the claim is concerned. If the petitioner/buyer has failed to contest the claim on merit, then the learned Tribunal was left with no option but to conduct the proceeding in accordance with law following principles of natural justice and after adequate opportunity to the petitioner. In such circumstances, when such specific grounds to assail the impugned award are already available for challenge in a proceeding in an application under Section 34 of the Act of 1996 on the part of the aggrieved buyer/purchasers, there is no reason why the petitioner should not have availed of the statutory remedy available under the provisions of Act which are in the nature of special legislation. 9. In conclusion, it can only be said that in such matters when hierarchy of statutory remedy is available and interference of the Courts are to be avoided as is the spirit of Section 5 of the Arbitration and Conciliation Act, 1996, there is no reason for this Court to exercise its discretionary jurisdiction to entertain the challenge to the award on the grounds urged. Moreover, losing party i.e. the Buyer in the instant case is also under a statutory obligation to make deposit of 75% of the amount awarded before his application under Section 34 of the Act of 2006 is entertained by the concerned Court. 9. Considering the totality of the facts and circumstances and the reasons discussed herein above, this Court is not satisfied that any interference is required to be made in exercise of the writ jurisdiction of this Court. The writ petition is dismissed, however with a liberty to the petitioner to avail of the statutory remedy available under the law. 10. Learned counsel for the petitioner in the midst of dictation of the judgment has also pointed out to the Court that in the matter of pre-deposit under Section 19 of the Act of 2006, there is discretion of the Court to allow pre-deposit in installments, as has been held by the Hon'ble Supreme Court in the case of Goodyear India Limited Vrs. Norton Intect Rubber Private Limited & another reported in 2012 (6) 345. 11. Norton Intect Rubber Private Limited & another reported in 2012 (6) 345. 11. Let it be made clear that any discussions/observations made herein above are for the purposes of coming to a view whether such challenge to impugned Award should be entertained in a proceeding under Article 226 of the Constitution of India. They would however not act to the prejudice of the parties in any such proceeding before any competent Court of Law. Pending I.A.s are closed.” 6. The decision of the Facilitation Council on 02.09.2013 as recorded in the order/award passed by the Facilitation Council communicated through memo dated 12.12.2013 is quoted as under: - “DECESION ON 02.09.2013: (i) The date was fixed for filing of objection by the opposite party on 17.06.2013. Both the parties appeared. A Junior Council appeared on behalf of the opposite party and prayed for time as the conducting lawyer of the opposite party of Kolkatta, who has to appear in this case. The time was allowed by way of last chance to file objection/written statement against the claim of the applicant till 19.08.2013, so that the final hearing of the matter can be done and the Council has re-fixed the case on dated 02.09.2013 as last chance for final hearing and appropriate order. (ii) Both the parties were appeared on 02.09.2013. The case of the applicant was heard but the Junior Council of the opposite party again prayed for time by filing an adjournment petition on the ground that the opposite party have invoked the arbitration clause pursuant to which arbitration proceeding are pending before the Sole Arbitrator, Kolkatta. The Facilitation Council had rejected, after perusal of the adjournment petition of the opposite party filed by the Authorised Junior Council on dated 02.09.2013. (iii) The opposite parties have without concurrence of supplier (applicant here) initiated the arbitration proceeding under the Sole Arbitrator Kolkatta, whereas the reference filed U/S 18(1) of MSMED Act 2006 by the applicant is pending for disposal before the Facilitation Council. The 4th Additional District Judge, Barasat (W.B.) in his order dated 14.05.2013 and also by the Hon'ble Calcutta High Court vide order dated 08.07.2013, which has been taken into consideration earlier by the Council at para 8 and 9. Therefore an adjournment petition filed on 02.09.2013 by the advocate of the opposite party is hereby rejected. The 4th Additional District Judge, Barasat (W.B.) in his order dated 14.05.2013 and also by the Hon'ble Calcutta High Court vide order dated 08.07.2013, which has been taken into consideration earlier by the Council at para 8 and 9. Therefore an adjournment petition filed on 02.09.2013 by the advocate of the opposite party is hereby rejected. (iv) Several opportunities were given by the council to the opposite party to settle the claim through conciliation U/s 18 (2) of the MSMED Act 2006, but they failed to do so. (v) The Micro and Small Enterprises Facilitation Council shall have jurisdiction to act as an Arbitrator or Conciliator U/S 18 (4) of this Act in a dispute between the supplier (applicant) located within its jurisdiction and a buyer (opposite parties) located anywhere in India. Therefore, the Facilitation Council is under considered view that U/S 17 of the MSMED Act the applicant (supplier) is entitled to recover the outstanding dues from the buyer against any goods supplied or services rendered by the applicant (supplier) and the buyer shall be liable to pay the outstanding due amount with interest thereon as provided U/S 16 of this Act. (vi) The opposite party has admitted the purchase orders and supply of 302MT of goods. He has further submitted that on supply of the goods the buyer immediately caused manufacturing of concrete sleepers for delivery to Indian Railways. But 14,640 concrete sleepers were found defective as a result of which they suffered a loss due to rejection by Indian Railways. They also submit that they wrote to supplier and complained of substandard material and requested supplier to issue credit note for a sum of Rs.21,90,615 towards said rejected material. The applicant has submitted that after purchase order when the material was ready for supply they along with Railway personnel came and inspected the material. On being satisfied took supply of material. It is clear thus from the above that the supplied material was used by the buyer (opposite party here) to manufacture sleepers. Thus, the supplier (applicant here) is entitled to payment against goods supplied by him.” 7. In order to examine the jurisdictional issue involved in the present case, this Court vide order dated 01.08.2023 had called for the records from the Facilitation Council through Special Messenger and the same was received by this Court as is recorded in order dated 25.08.2023. 8. In order to examine the jurisdictional issue involved in the present case, this Court vide order dated 01.08.2023 had called for the records from the Facilitation Council through Special Messenger and the same was received by this Court as is recorded in order dated 25.08.2023. 8. After the receipt of the records from the Facilitation Council, both the parties have advanced their arguments, inter alia, on the point as to whether the award impugned in the writ proceedings is a nullity and whether the required procedure has been followed by the Facilitation Council or not and whether the learned writ Court has rightly refused to entertain the writ petition by observing that the appropriate remedy to challenge the award would be under section 34 of the Act of 1996. Some of the arguments/judgments relied on by the learned counsels have been recorded in orders dated 10.10.2023, 11.10.2023 and 12.10.2023. 9. Arguments of the appellants (the buyer) While giving the factual background of the case and the points involved in this appeal, it has been submitted by the buyer as under: - A. The buyer is engaged, inter alia, in the business of manufacturing and supplying concrete sleepers to the Railways. The buyer had placed with the supplier two purchase orders being dated 01.10.2012 and 29.11.2012 for the supply of HTS wires. The total value of both the purchase orders as agreed by and between the parties was Rs. 2,18,44,132/- (including Excise duty and Central Sales tax). Clause 14 of the said terms and conditions of the purchase orders contained an Arbitration Clause and Clause 15, inter alia, expressly specified that the Courts at Kolkata alone will be vested with exclusive jurisdiction to receive, try and entertain any action initiated by and between the parties in the matter arising out of the agreement. Pursuant to and in terms of the said purchase orders, the supplier supplied an aggregated quantity of 302 MT of HTS wires and raised its invoice for the entire goods. The buyer received supply of the said goods during the period ranging from 18.10.2012 to 18.12.2012 and immediately caused manufacturing of concrete sleepers for the purpose of effecting delivery to the Indian Railways. The buyer received supply of the said goods during the period ranging from 18.10.2012 to 18.12.2012 and immediately caused manufacturing of concrete sleepers for the purpose of effecting delivery to the Indian Railways. During manufacturing of the concrete sleepers from the said goods supplied by the supplier, it was found that out of the concrete sleepers so manufactured with the said goods, about 14,640 number of concrete sleepers were found to be defective by the Inspecting Authorities of Indian Railways after vigorous testing procedure as generally adopted by Indian Railways before accepting concrete sleepers and as a result thereof, the Indian Railways refused to take delivery of the entire quantity as ordered by it and treated the concrete sleepers as entirely defective. As a result, the buyer suffered a loss and damages to the tune of Rs.2,26,43,395/-. B. Thereafter, by its letter dated 07.01.2013, the buyer informed the supplier about the sub-standard and inferior quality of the goods supplied by them against the said two purchase orders and the buyer further rejected the unutilized portion of the goods and asked the supplier to take back the same immediately. The supplier was also requested to issue necessary Credit Note for a sum of Rs. 21,90,615/- towards the rejected material lying with the buyer. Despite the said complaint, the supplier, in an illegal and wrongful manner, called upon the buyer to pay a sum of Rs. 1,39,77,562/- being the alleged outstanding amount on account of the supply of the said goods. Further, by a letter dated 07.02.2013, the supplier replied to the said complaint of the buyer dated 07.01.2013 and informed that the supplier has initiated a proceeding before the Facilitation Council constituted under the Act of 2006. By a letter dated 18.02.2013, the buyer duly replied to the said letter of the supplier dated 07.02.2013 and refuted the allegations made therein. Thereafter, on or about 19.02.2013 the buyer was served with a copy of the purported complaint filed by the supplier before the Facilitation Council under the Act of 2006 by suppressing material facts. In view of the above disputes and differences, the buyer by its letter dated 25.02.2013 invoked the arbitration clause and appointed an Arbitrator in terms of the arbitration agreement between the parties. The said letter was duly sent to the supplier by speed post with acknowledgement due. In view of the above disputes and differences, the buyer by its letter dated 25.02.2013 invoked the arbitration clause and appointed an Arbitrator in terms of the arbitration agreement between the parties. The said letter was duly sent to the supplier by speed post with acknowledgement due. C. The buyer has raised various points with regards to the maintainability of the proceedings before the Facilitation Council at Ranchi including the existence of a valid arbitration agreement between the parties; despite repeated requests, the supplier never informed the buyer that it is registered under the provisions of the said Act of 2006 and the relevant portion of Clause 1 of the terms and conditions of the supply order has been referred to submit that there is an obligation on the part of the supplier to inform the buyer about registration under the Act of 2006 failing which it shall be understood that the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 is not applicable on supplier. D. It has been submitted that the supplier could not have filed the complaint under the Act of 2006 before the Facilitation Council at Ranchi and, as such, the Facilitation Council at Ranchi had no jurisdiction to receive or entertain and/or try and adjudicate the said purported complaint. The supplier is bound by the said arbitration clause and cannot proceed any further with the said complaint under the provisions of the Act of 2006. E. Meanwhile, the supplier on or about 04.02.2013, filed a complaint under section 18 of the Act of 2006 which was registered as Case No. JHMSEFC No. 01 of 2013. The buyer immediately after being aware of the said complaint case, filed an application before the Facilitation Council under section 8 of the Act of 1996, inter alia, praying for reference of the disputes being the subject matter of the complaint for arbitration and stay of all further proceedings in the said complaint proceedings along with other consequential orders. Upon receiving the reply to the application under section 8 of the Act of 1996 as well as the interlocutory application, the buyer filed its rejoinder to both, the reply as well as to the interlocutory application. F. In view of the subsisting Arbitration Clause as mentioned in both the aforesaid purchase orders, the buyer instituted an application under section 9 of the Act of 1996 on 28.02.2013. F. In view of the subsisting Arbitration Clause as mentioned in both the aforesaid purchase orders, the buyer instituted an application under section 9 of the Act of 1996 on 28.02.2013. By an order dated 14.05.2013, the said proceeding under section 9 of the Act of 1996 was dismissed. The buyer being aggrieved by the said order dated 14.05.2013 preferred an appeal before Hon’ble Division Bench of High Court at Calcutta which was registered as F.M.A. 1945 of 2013. Said appeal was admitted by an order dated 08.07.2013 and was said to be pending when the present appeal was filed. G. The Facilitation Council thereafter from time to time issued notice of hearing of the said complaint case together with the said application filed by the buyer under section 8 of the Act of 1996 and on every such occasion, the buyer attended the hearing but unfortunately almost on every such occasion the hearing was adjourned without any fault of the buyer. H. Simultaneously, in terms of the arbitration clause being invoked by the buyer, the parties also participated before the Arbitral Tribunal. The supplier had also filed an application challenging the jurisdiction and authority of the learned Arbitrator appointed by the buyer and also submitted to the merits of the claim. From the minutes of the arbitral proceedings before the learned Arbitrator, it would be evident that the supplier had already submitted to the jurisdiction of the learned Arbitrator. Despite repeated opportunities being granted by the learned Arbitrator, the supplier chose not to press its application challenging jurisdiction before the learned Arbitral Tribunal for hearing and accordingly, the learned Arbitral Tribunal ruled the objections as raised by the supplier without making any order as to merits of the claim raised by the supplier. On 14.12.2013, in course of the hearing of the arbitral proceeding before the Arbitral Tribunal, the learned Advocate who was appearing for the supplier forwarded letter of the supplier dated 14.12.2013 and submitted a copy of the award dated 12.12.2013 passed by the Facilitation Council before the Arbitral Tribunal. On 16.12.2013, the buyer also received a copy of the said Award dated 12.12.2013 from the office of the Facilitation Council by post. On 16.12.2013, the buyer also received a copy of the said Award dated 12.12.2013 from the office of the Facilitation Council by post. I. Three principal issues have been urged by the buyer before this Hon'ble Court, which are as under: - a) Inherent lack of jurisdiction by the Jharkhand Facilitation Council to pass the award- The Jharkhand Facilitation Council under the mandate of the Act of 2006 is statutorily obliged to first initiate a conciliation proceeding under section 18(2) of the Act of 2006; Once proceedings under section 18(2) are undertaken, the same has to be done in the manner stipulated in the Act of 1996; Such stipulation for conciliation is that the same has to be terminated by a written declaration of the Conciliator if it fails or signing of a written declaration if it succeeds; In the event the conciliation fails, section 18(3) of the Act of 2006 provides that it has to stand terminated and only thereafter can the proceedings be taken up by the Council or such other Body as the Council may think fit for adjudication by way of arbitration. It is submitted that in the instant case, no such termination ever took place as will appear from records on account whereof the award is completely vitiated as the Facilitation Council as the Conciliator could not have passed any award. The following judgments have been referred: i. “Vijeta Construction Vs. Indus Smelters Ltd. and another” reported in 2021 SCC Online SC 3436; paragraphs 13, 14, 15 and 17 ii. “Srirasthu Shopping Mall Vs. Micro and Small Enterprise” reported in 2023 SCC Online TS 151 iii. “Jharkhand Urja Vikas Nigam Limited Vs. State of Rajasthan and Others” reported in 2021 SCC Online SC 1257. b) The Jharkhand Facilitation Council suffers from quorum non-judis thus disabling it from taking up the matter- The Facilitation Council being a creature of the statute cannot under any circumstances go beyond the statutory mandate of its composition, which is provided in section 21 of the Act of 2006. The said provision clearly states that “the Facilitation Council shall consist of not less than three but not more than five members”. On the date of making of the award, the Facilitation Council had eight members. The said provision clearly states that “the Facilitation Council shall consist of not less than three but not more than five members”. On the date of making of the award, the Facilitation Council had eight members. Clearly the Facilitation Council could not have passed such an award as it was not properly constituted and hence any order passed by it is void ab-initio. It is a well settled principle that any rule in contravention to the statute cannot sustain. The following judgment has been referred: “General Officer Commanding-in-chief and another Vs. Dr. Subhas Chandra Yadav and another” reported in (1988) 2 SCC 351 ; paragraph 14 The Act of 1996 also provides that even if the parties are free to determine the number of Arbitrators, “such number shall not be an even number” as enshrined in section 10 of the Act of 1996. Thus, the award was passed devoid of any jurisdiction making it nullity in the eyes of law. The following judgment has been referred: “Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule (dead) through Lrs. and others” reported in (2004) 8 SCC 706 ; paragraph 9 The buyer also submitted that this High Court has been pleased time and again to hold that such award passed by the Facilitation Council is without jurisdiction and is liable to be set aside. The following judgments have been referred: i. Judgment and order dated 5th January, 2020 in W.P.(C) No. 3699 of 2015 in “Electrosteel Steels Limited Vs. The State of Jharkhand and others”. ii. Judgment and order dated 3rd January, 2022 in L.P.A. No. 230 of 2019 (M/s Heavy Engineering Corporation Ltd. Vs. The State of Jharkhand and others) iii. Judgment dated 17th November, 2022 in L.P.A. No. 242 of 2022 in “The Jharkhand Bijli Vitran Nigam Ltd. Vs. Vexcel Upkram Private Limited”). c) Error in law vitiated the proceedings before the Jharkhand Facilitation Council- The Act of 2006 gives a limited mandate to the Facilitation Council to decide dispute between the parties which lasts for only 90 days from the date of making such reference. Without admitting that such reference had ever been initiated and was at the stage of conciliation only, the entire process before the Facilitation Council lasted from 07.02.2013 till 12.12.2013, much beyond the statutory mandate of the Facilitation Council. The following judgments have been referred: i. “Roop Singh Bhatty Vs. Without admitting that such reference had ever been initiated and was at the stage of conciliation only, the entire process before the Facilitation Council lasted from 07.02.2013 till 12.12.2013, much beyond the statutory mandate of the Facilitation Council. The following judgments have been referred: i. “Roop Singh Bhatty Vs. Shriram City Union Finance Limited”, reported in 2022 SCC Online TS 1049, paragraphs 22 and 23 ii. “Jayesh H. Pandya and another vs. Subhtex India Limited and others” reported in (2020) 17 SCC 383 d) It has been submitted that there was an inherent lack of jurisdiction when the Jharkhand Facilitation Council passed such award, on account whereof the said award is void ab-initio and an inherent lack of jurisdiction renders such orders to be void ab-initio and it can be challenged in the jurisdiction under Article 226 of the Constitution of India. It is submitted that the learned writ Court was not justified in refusing to entertain the writ petition when the award is a nullity. 10. Arguments of the Respondent No. 3 (the supplier) (I) The writ petition was thoroughly misconceived and was filed by suppressing material fats, hence the same was fit to be dismissed by this Court. The writ petition was also not maintainable in view of availability of statutory alternative and efficacious remedy under the Act of 2006. (II) The prayer made in the writ petition was devoid of any merit and also not maintainable hence the writ petition was fit to be rejected by this Court. (III) There was no such clause as Clause-15 in one page purchase order purportedly vesting exclusive jurisdiction to the Courts at Kolkata. (IV) The appellants’ representative and the Railway’s representative had inspected the HTS wires supplied by the supplier before they were dispatched for delivery and upon satisfaction an inspection certificate was also issued and signed by them. After the wires were received at the buyer’s site, there was a further inspection at their site and there was no complaint even at that stage. (V) The complaint filed before the Facilitation Council by the supplier is fully justified and the necessity for the same arose on account of illegal and arbitrary withholding of their legitimate dues by the buyer. (VI) There was no arbitration agreement between the buyer and the supplier. The purchase orders did not contain agreement. (V) The complaint filed before the Facilitation Council by the supplier is fully justified and the necessity for the same arose on account of illegal and arbitrary withholding of their legitimate dues by the buyer. (VI) There was no arbitration agreement between the buyer and the supplier. The purchase orders did not contain agreement. Moreover, the purported Clause-14 does not fulfil the requirement of section 2(b) and section 7 of the Act of 1996. The purported agreement is not signed by both the parties. There was no correspondence for arbitration. It was only a unilateral document. The supplier never accepted the arbitration agreement. As a matter of fact, the supplier was not supplied with the proposed arbitration agreement. The buyer filed a petition in the Court of learned District Judge at Barasat, West Bengal under section 9 of the Act of 1996. The learned Additional District Judge-IV, by his order dated 14.05.2013 passed in Misc. Case No. 16 of 2013 held that there is no arbitration agreement between the parties. (VII) The supplier had instituted a suit in the Court of Subordinate Judge, Ranchi against the buyer which was registered as Title Suit No. 227 of 2013. In the said suit it was, inter alia, prayed that a declaration be made that there was no arbitration agreement between the parties. In the said suit, the buyer filed a petition under section 8 of the Act of 1996 for referring the parties to arbitration and mentioning therein that the matter is pending before the purported Arbitrator appointed by the buyer at Kolkata. The learned Subordinate Judge-IV was pleased to reject such petition of the buyer by its order dated 16.09.2013. (VIII) It was reiterated that the purchase orders dated 01.10.2012 and 29.11.2012 did not contain any terms and conditions. Without prejudice to the said objections, it was submitted that there is no statutory requirement for the supplier to inform the buyer regarding its registration under the Act of 2006. No enquiry was made by the buyer from the supplier about the registration under the Act of 2006. However, the buyer was all along aware that the supplier is registered under the Act of 2006 as the registration prominently appears in the invoice raised by the supplier. No enquiry was made by the buyer from the supplier about the registration under the Act of 2006. However, the buyer was all along aware that the supplier is registered under the Act of 2006 as the registration prominently appears in the invoice raised by the supplier. The invoices, which were raised by the supplier against the supplies made to the buyer even prior to October, 2012 contain the registration detail prominently and, therefore, the buyer was all along aware that the supplier is registered under the Act of 2006. The status of Micro, Small and Medium Enterprise does not depend upon individual or private agreement and there is no requirement under the law that the supplier had to register itself with the individual buyer or give prior information about its registration under the Act of 2006. The Act of 2006 has an overriding effect on all other Acts in force or even on individual or private agreement. (IX) As there was no arbitration agreement between the parties, hence the buyer could not have unilaterally appointed an Arbitrator. Any such appointment is also not binding on the supplier and the same has no sanctity in the eyes of law. Even after competent Court of law held that there is no arbitration agreement between the parties, the self-styled Arbitrator proceeded with purported arbitration. Further, the supplier never participated in the arbitration proceeding. They all along refused to participate in the proceeding on the ground that there was no arbitration agreement. By letter dated 14.12.2013, the supplier informed Mr. Subhasish Mitra that the Tribunal at Ranchi had passed the award. In spite of receipt of the said letter, Mr. Subhasish Mitra made a purported award on 13.01.2014. The said order has been challenged by the supplier under section 34 of the Act of 1996. The supplier never submitted to the jurisdiction of self-styled Arbitrator Mr. Subhasish Mitra. Mr. Mitra was avoiding to pass any order on the point raised by the supplier. However, on repeated request ultimately Mr. Mitra passed an order on 14.12.2013. (X) The learned 4th Additional District Judge at Barasat rightly rejected the petition under section 9 of the Act of 1996 filed by the buyer. In appeal, the Hon'ble High Court at Kolkata refused to stay the proceedings before the Facilitation Council. However, on repeated request ultimately Mr. Mitra passed an order on 14.12.2013. (X) The learned 4th Additional District Judge at Barasat rightly rejected the petition under section 9 of the Act of 1996 filed by the buyer. In appeal, the Hon'ble High Court at Kolkata refused to stay the proceedings before the Facilitation Council. (XI) The buyer never cooperated in the proceedings before the Facilitation Council and always sought for unnecessary adjournments. It was given full opportunity to participate in the proceedings, yet it chose to mis-utilise these opportunities and linger the proceedings, which would be evident from the award dated 02.09.2013 communicated vide memo dated 12.12.2013. Even on 02.09.2013, adjournment was sought for on behalf of the buyer, even though it was clear in the earlier order that no further adjournment shall be granted. The learned Advocate for the buyer also refused to advance argument in the matter. (XII) The buyer was given opportunity to settle the claim through conciliation, but on account of non-cooperation on their behalf, the same failed. The Facilitation Council at Jharkhand had jurisdiction to adjudicate upon the complaint in view of section 18 (4) of the Act of 2006. (XIII) The writ petition was not maintainable on account of availability of statutory alternative and efficacious remedy. (XIV) The learned counsel for the supplier has opposed the prayer of the buyer and has referred to a number of judgments under following headings: (i) Termination of Conciliation- • “Principal Chief Engineer Vs. Manibhai & Brothers (Sleeper) & Anr.” reported in 2011 SCC Online Guj 6058 (paragraphs 38 and 39) • C.O. 1078 of 2019- Calcutta High Court “GPT Infraprojects Limited Vs. M/s Miki Wire Works Pvt. Ltd.” (paragraphs 20 and 21) (ii) Maintainability of Writ and Alternative Remedy- • “SBP & Co. Vs. Patel Engineering Ltd. and another” reported in (2005) 8 SCC 618 [paragraphs 45, 46, 47(VI)] • “Asst. Collector of Central Excise Vs. Dunlop India Ltd. and others” reported in (1985) 1 SCC 260 (paragraph 3) (iii) Waiver and Composition of Tribunal (Derogable Provision)- With regard to the point regarding composition of Tribunal and the objection thereto, the learned counsel has submitted that such objection, if any, stood waived and such objection having not been taken before the Arbitral Tribunal, the buyer cannot take such plea- • “Narayan Prasad Lohia Vs. Nikunj Kumar Lohia and Ors” reported in (2002) 3 SCC 572 (paragraphs 16 and 20) • “Quippo Construction Equipment Limited Vs. Janardan Nirman Private Ltd. “reported in (2020) 18 SCC 277 (paragraphs 20 and 21) (iv) Res-Judicata- • “S. Ramachandra Rao Vs. S. Nagabhushana” reported in MANU/SC/1367/2022 (paragraph 9.1) (v) Pre-Deposit - • “Eden Exports Co. Vs. Union of India” reported in MANU/TN/2148/2012: (2013) WLR 1-(paragraphs 14 and 24) • “Tirupati Steels Vs. Shubh Industrial Component” reported in (2022) 7 SCC 429 (paragraphs 8 and 11). •“Goodyear India Limited Vs. Norton Intech Rubber Private Limited & another” reported in (2012) 6 SCC 345 (paragraph 11) (vi) De-Facto - •“Greg Vroman Vs. City of Soldotna (US Supreme Court of Alaska) (p- 500 of compilation of judgments (internal page no. 7) •“Jharkhand Justice Forum and another Vs. State of Jharkhand and others” reported in MANU/JH/0785/2003 (paragraph 17) (XV) The learned counsel has submitted that the buyer having not filed any written statement to the claim had nothing to say in the matter. Due to non-filing of written statement, the entire claim of the supplier remained undisputed and accordingly, the Facilitation Council was within its right to pass an award in terms of the claim with interest as provided in the Act itself. (XVI) On 02.02.2023, the learned counsel appearing on behalf of the supplier had produced a copy of the order dated 26.03.2019 passed by Hon’ble Calcutta High Court in aforesaid case being C.O. No. 1078 of 2019 [G.P.T. Infraprojects Limited Vs. M/s Miki Wire Works (P) Ltd.] between the same parties to submit that the issue of jurisdiction of the Facilitation Council was subject matter of consideration in the said case. Thereafter, vide order dated 16.05.2023 the supplier had sought time to bring on record various orders passed by the Court at Barasat, West Bengal and also order passed by Hon’ble Calcutta High Court in exercise of power under Article 227 of the Constitution of India. Thereafter, vide order dated 16.05.2023 the supplier had sought time to bring on record various orders passed by the Court at Barasat, West Bengal and also order passed by Hon’ble Calcutta High Court in exercise of power under Article 227 of the Constitution of India. Pursuant to order dated 16.05.2023 passed by this Court, a supplementary-affidavit has been filed on behalf of the supplier bringing on record the following orders: - (a) Order dated 17.01.2019 passed by learned Civil Judge (Senior Division)-II Court, Barasat in Miscellaneous Case No. 22 of 2017 in the execution proceedings whereby the objection to execution of the award passed by the Facilitation Council in Arbitration Execution Case No. 87 of 2016 on the ground that the award passed by the Facilitation Council is a nullity, has been rejected. (b) A web copy of interim order dated 26.03.2019 passed by Calcutta High Court in C.O. No. 1078 of 2019 whereby further proceedings in Arbitration Execution Case No. 87 of 2016 pending before the Civil Judge (Senior Division), Second Court at Barasat was stayed. In C.O. No. 1078 of 2019 the said order dated 17.01.2019 was challenged. (c) The final order passed in C.O. No. 1078 of 2019 by Hon’ble Calcutta High Court whereby the petition under Article 227 of the Constitution of India has been dismissed vide order dated 13.03.2023. (XVII) By referring to the final order passed in C.O. No. 1078 of 2019 by Hon’ble Calcutta High Court dismissing the petition under Article 227 of the Constitution of India vide order dated 13.03.2023, it has been submitted by the learned counsel for the supplier that the point regarding objection to jurisdiction of the Facilitating Council has been already decided and there is no scope to take a contrary view in this appeal. 11. Case of the respondent nos. 1 and 2 (I) The writ petition was not maintainable as there was efficacious alternative statutory remedy available to the buyer. The impugned award dated 12.12.2013 passed by the Facilitation Council in Case No. JHMSEFC - 01 of 2013 being an Arbitral Award as per the provisions of sub-section (3) to section 18 of the Act of 2006 could be challenged by the buyer before the District Court under the provisions of section 34 of the Act of 1996. The impugned award dated 12.12.2013 passed by the Facilitation Council in Case No. JHMSEFC - 01 of 2013 being an Arbitral Award as per the provisions of sub-section (3) to section 18 of the Act of 2006 could be challenged by the buyer before the District Court under the provisions of section 34 of the Act of 1996. (II) Section 18 of the Act of 2006 contains a non-obstante clause, which provides that 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 of Act of 2006, make a reference to the Facilitation Council. Further, as per the scheme of section 18, once a party to a dispute, being a micro or small or a medium enterprises, makes such an application, the Facilitation Council shall either itself take up the dispute for arbitration if the conciliation is not successful between the parties or it may seek the assistance of any institution, for the purpose of conciliation or arbitration. Rather, in the present case, the dispute has been taken up for arbitration by the Facilitation Council itself, the provisions of the Arbitration Act would apply, as if the arbitration was in pursuance of an Arbitration Agreement referred to in section 7(1) thereof. As such, if the buyer is aggrieved by the award made by the Facilitation Council, it shall make an application for setting aside the same, in accordance with section 34 of the Act of 1996. (III) The provisions of section 19 of the Act of 2006 create a statutory obligation for deposit of 75% of the awarded amount, before any application for setting aside the award is entertained by any Court. It appears that the buyer, only to override the said pre-requisite deposit of 75%, has chosen to challenge the impugned award to frustrate the statutory provisions as has been enumerated under the Act of 2006. Thus, the present writ application was fit to be dismissed by this Hon'ble Court being not maintainable. (IV) The award passed by the Facilitation Council, Ranchi under the Act of 2006 vide order dated 12.12.2013 passed in Case No. JHMSEFC - 01 of 2013 is fully justified and legal. Thus, the present writ application was fit to be dismissed by this Hon'ble Court being not maintainable. (IV) The award passed by the Facilitation Council, Ranchi under the Act of 2006 vide order dated 12.12.2013 passed in Case No. JHMSEFC - 01 of 2013 is fully justified and legal. (V) The points raised in various paragraphs of the writ petition either did not arise for consideration in the said case or deserved to be answered against the buyer in view of the facts and circumstances of the present case. (VI) As enumerated in the impugned award, the notices were sent to the buyer and it also put its appearance in the case and was heard in details before passing the said award. Rather, the buyer had also challenged the admission of the application under section 18 of the Act of 2006 before the 4th Additional District Judge, Barasat (West Bengal) and vide order dated 14.05.2013 the same was rejected. Consequent thereof, the buyer also preferred an appeal being C.A.N. No. 6439 of 2013 before the Hon'ble Calcutta High Court. The Hon'ble Calcutta High Court vide order dated 08.07.2013 disposed of the said stay petition without any order as to costs and observed inter alia that “We have made it free for the parties to make their respective contentions before the Tribunal”. From the facts of this case, it would appear that the buyer had made a wrong statement to mislead this Court. (VII) The Facilitation Council did follow the statutory provisions and acted as per the provisions mentioned under the Act of 2006. (VIII) Several opportunities were given by the Facilitation Council to the buyer to settle the claim through conciliation under section 18(2) of the Act of 2006. The Facilitation Council consists of several members and any award is passed as per the provisions of the Act of 2006 and Rule prescribed for it. (IX) The Act of 2006 is a special Act, enacted to facilitate the promotion and development and to enhance the competitiveness of Small and Medium Enterprises. Sections 15 to 23 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It follows that the provisions of the Act of 2006 have an overriding effect over any other provisions of law and shall prevail over the same. Sections 15 to 23 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It follows that the provisions of the Act of 2006 have an overriding effect over any other provisions of law and shall prevail over the same. (X) The Calcutta High Court vide order dated 08.07.2013 declined to pass order of stay against the proceeding of the Facilitation Council and rather, it directed the buyer to proceed along with the ongoing proceeding before the Facilitation Council. (XI) The award was passed after hearing both the parties and on the basis of record made available before the Facilitation Council under the provisions of the Act of 2006. The award is fully justified and legal. (XII) The buyer did appear before the Facilitation Council and despite time allowed to it, it did not file its written statement on the merit of the case and only sought adjournments on the pretext of invoking arbitration clause of the agreement. However, on 02.09.2013 in the proceeding before the Facilitation Council, the buyer narrated its factual position of the case, which was duly considered by the Facilitation Council along with the materials available on record before passing the award dated 12.12.2013 and the Facilitation Council adjudicated the claim of the supplier as per the provisions of the Act of 2006. (XIII) The supplier filed a reference application under section 18 (1) of the Act of 2006 on 04.02.2013 and the same was admitted by the Facilitation Council on 12.02.2013. The Facilitation Council proceeded as per the material available on record and despite the same being in knowledge of the buyer, it preferred not to file a written statement before the Facilitation Council. (XIV) Section 18 (1) of the Act of 2006 states that “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…..”, meaning thereby that “any party to a dispute may” make a reference if any amount is due as per section 17 of the Act of 2006. It is not necessary that any party to any agreement has to communicate to other party that he is covered under the Act of 2006. It is not necessary that any party to any agreement has to communicate to other party that he is covered under the Act of 2006. The Act being a Central Act is applicable in uniformity to all even though any agreement is entered by the parties to over pass law. (XV) The present Letters Patent Appeal is not maintainable because there is an efficacious alternative statutory remedy available to the buyer. The impugned award dated 12.12.2013 passed by the Facilitation Council being an Arbitral Award as per the provisions of sub-section (3) of section 18 of the Act of 2006 be challenged by the appellant company before the District Court under the provisions of section 34 of the Act of 1996. (XVI) In view of the facts and circumstances stated hereinabove, the instant writ application was devoid of any merit and was liable to be dismissed. Findings of this Court 12. The issue for consideration before this Court is as follows: “Whether the learned writ Court was justified in dismissing the writ petition by stating that the grounds raised by the appellants are the grounds which were already available for challenge in a proceeding in an application under section 34 of the Act of 1996 and therefore, there was no reason as to why the buyer should not have availed of the statutory remedy available under the provisions of the Act of 1996 which is in the nature of special legislation.” The answer to this issue would essentially depend upon the answer to the following points: - “Whether the order impugned in the writ petition was an award so as to be amenable to challenge under section 34 of the Arbitration and Conciliation Act, 1996?” “Whether the issue as to whether the order/award passed by the Facilitation Council is without jurisdiction is hit by res-judicata in view of judgment dated 13.03.2023 passed by Calcutta High Court in C.O. 1078 of 2019 arising out of objection to execution proceedings of the same award/order passed by the Facilitation Council which was impugned in the writ proceedings involved in the present case? 13. So far as the other points regarding coram of the Facilitation Council in passing the award and plea of waiver with regards to coram; plea of pre-deposit etc. are concerned the same are required to be considered only if the aforesaid issues are decided in favour of the supplier. 13. So far as the other points regarding coram of the Facilitation Council in passing the award and plea of waiver with regards to coram; plea of pre-deposit etc. are concerned the same are required to be considered only if the aforesaid issues are decided in favour of the supplier. If the award is held to be a nullity and not an award within the meaning of the Act of 1996, the other issues raised by parties need not be considered as the matter would be remanded to the Facilitation Council for consideration in accordance with law. 14. The point of res-judicata raised by the supplier is taken up first. i. The supplier has raised the plea of res-judicata by stating that the grounds relating to jurisdiction of the Facilitation Council taken in this case have already been taken before the Hon’ble Calcutta High Court in C.O. No.1078 of 2019 (supra) and has been decided against the buyer and, therefore, such grounds are barred by res-judicata. The learned counsel also relied on the judgment in “State of Tamil Nadu Vs. State of Kerala and another” reported in (2014) 12 SCC 696 to submit that the principle of res-judicata has been made applicable to cases which are tried by Court of limited jurisdiction also. It has also been submitted that inter party decision of Hon’ble Calcutta High Court is binding and cannot be assailed in subsequent case in another Court. Paragraph nos.173, 174 and 175 of the said judgment are quoted as under: “173. We are unable to accept the submission of the learned Senior Counsel for Kerala. The label of jurisdiction exercised by this Court is not material for the applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds viz. (1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and (2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. (1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and (2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding. 174. The rule of res judicata is articulated in Section 11 of the Code of Civil Procedure. 175. Explanations VII and VIII were inserted in the above provision by the Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1-2-1977. Explanation VIII in this regard is quite relevant. The principles of res judicata, thus, have been made applicable to cases which are tried by the courts of limited jurisdiction. The decisions of the courts of limited jurisdiction, insofar as such decisions are within the competence of the courts of limited jurisdiction, operate as res judicata in a subsequent suit, although, the court of limited jurisdiction that decided the previous suit may not be competent to try such subsequent suit or the suit in which such question is subsequently raised. If a decision of the court of limited jurisdiction, which was within its competence, operates as res judicata in a subsequent suit even when the subsequent suit is not triable by it, a fortiori, the decision of the highest court of the land in whatever jurisdiction given on an issue which was directly raised, considered and decided must operate as res judicata in the subsequent suit triable exclusively by the highest court under Article 131 of the Constitution. Any other view in this regard will be inconsistent with the high public policy and rule of law. The judgment of this Court directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question before this Court, though, label of jurisdiction is different.” ii. A reference has been made to the judgment passed by the Hon’ble Supreme Court in the case of S. Ramachandra Rao Vs. S. Nagabhushana (supra) to submit that it has been held that no person can be vexed twice. iii. This Court finds that the plea of res-judicata as raised by the supplier is not applicable to the facts and circumstances of this case. S. Nagabhushana (supra) to submit that it has been held that no person can be vexed twice. iii. This Court finds that the plea of res-judicata as raised by the supplier is not applicable to the facts and circumstances of this case. The records reveal that the writ petition being W.P.(C) No.6 of 2014 was filed before this Court on 02.01.2014 wherein the order/award passed by the Facilitation Council was challenged. Interim orders were passed in the writ petition and ultimately the writ petition was dismissed vide impugned order dated 03.03.2016 by recording that the Court was not satisfied that any interference was required to be made in writ jurisdiction and liberty was given to the writ petitioner- buyer to avail the statutory remedy available under law i.e. to file a petition under section 34 of the Act of 1996. The present appeal was filed on 08.04.2016 and the matter was listed for admission and vide order dated 19.07.2016, notices were issued to the respondents. Thereafter, the matter remained pending and on certain dates, the matter was heard by the concerned Division Benches. During the pendency of the present Letters Patent Appeal, the supplier instituted execution proceeding before the learned Court at Barasat in West Bengal which was numbered as Arbitration Execution Case No.87 of 2016. In the execution proceedings an application dated 03.02.2017 under Order XLVII read with section 151 of CPC was filed by the buyer which was numbered as Misc. Case No.22 of 2017. The said Misc. Case No.22 of 2017 was rejected by the concerned Court on contest vide order dated 17.01.2019. The said order has been placed on record by the supplier vide affidavit dated 12.06.2023 pursuant to the order passed by this Court on 16.05.2023. Upon perusal of the said order, it is apparent that the learned Court while dismissing the Misc. Case No.22 of 2017 had taken note of the fact that the award passed by the Facilitation Council was challenged in writ petition under Article 226 of the Constitution of India before this Court in W.P.(C) No.6 of 2014 and the judgment passed by the writ Court was placed on record wherein it was held that the question as to composition of Arbitral Tribunal or failure to follow the arbitral procedure are the grounds available under section 34 of the Act of 1996. It was also observed that while resorting to decide the dispute in the nature of arbitral proceedings provision of Act of 1996 shall 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 the Act of 1996. It was observed that the buyer instead of taking recourse of section 34 of the Act of 1996 had filed miscellaneous case under Order XLVII of the CPC and had prayed for stay of further proceedings of Arbitration Execution Case No.87 of 2016 on the ground that the award is a nullity. It was held by the learned Court that buyer was debarred from challenging the said proceedings on the ground of nullity as it could be a ground of challenge under section 34 of the Act of 1996. The Misc. Case No.22 of 2017 was rejected primarily on the ground that the buyer had not challenged the award under section 34 of the Act of 1996 and had not deposited 75% of the awarded amount prior to challenge to the same as per section 19 of the Act of 2006. The said order dated 17.01.2019 was challenged before Hon’ble Calcutta High Court in a petition under Article 227 of the Constitution of India which was numbered as C.O. No.1078 of 2019. The Hon’ble Calcutta High Court passed an order dated 26.03.2019 in C.O. No.1078 of 2019 directing that there would be stay of all further proceedings in Arbitration Execution Case No.87 of 2016 pending before the Court of Civil Judge (Senior Division), 2nd Court at Barasat. However, the said C.O. No.1078 of 2019 was ultimately dismissed vide judgment dated 13.03.2023 and while dismissing the C.O. No.1078 of 2019 the learned Single Judge of Hon’ble Calcutta High Court had taken note of the fact that the buyer did not choose to file any application under section 34 of the Act of 1996 against the award passed by the Facilitation Council but filed a writ petition before the High Court at Jharkhand, but the said writ petition was dismissed on 03.03.2016 whereby the High Court observed that the buyer can very well challenge the award under section 34 of the Act of 1996. The Court also recorded the submission of the buyer that the order passed by the learned writ Court dated 03.03.2016 was under challenge in the present Letters Patent Appeal, but it was recorded that till 13.03.2023 the buyer had not taken appropriate steps for the disposal of the Letters Patent Appeal. The Hon’ble Calcutta High Court had recorded the pendency of the present Appeal against the judgment passed by the learned writ Court in W.P.(C). No.6 of 2014 but observed that no effective step was being taken for the disposal of the present Appeal and ultimately dismissed the writ petition being C.O. No.1078 of 2019 vide order dated 13.03.2023. The records of the present case reveal that the case was heard before this Court on 05.01.2023 in which the counsel for the buyer had advanced their argument and adjournment was sought for on behalf of the supplier and the matter was fixed on 12.01.2023 with a clear direction that no adjournment shall be granted on the next date. On 12.01.2023, it has been recorded that the buyer appeared before this Court and nobody represented the supplier and in order to give one more opportunity to the supplier the matter was adjourned to 02.02.2023. On 02.02.2023 the parties had appeared and the counsel for the supplier had produced a copy of the order dated 19.01.2023 passed in C.O. No.1078 of 2019 and stated that now the issue involved in the present case is under consideration before the Hon’ble Calcutta High Court in C.O. No.1078 of 2019. Since the learned counsel appearing on behalf of the buyer had no instruction therefore, he sought adjournment. The matter was directed to be posted on 23.02.2023. There is no order sheet dated 23.02.2023 and the matter was taken up on 16.03.2023 and it was directed to be listed before appropriate assigned Bench as early as possible. Thereafter, upon joint request on 28.03.2023, the matter was directed to be listed on 24.04.2023. on 24.04.2023 adjournment was sought for on behalf of the supplier and on 16.05.2023 the supplier sought time to bring on record the orders passed by Court at Barasat and also the order passed by Hon’ble Calcutta High Court under Article 227 of the Constitution of India and subsequently by way of supplementary affidavit the orders have been placed on record vide supplementary affidavit dated 12.06.2023. iv. iv. Thus, apparently the execution proceedings arising out of the same award/order passed by the Facilitation Council which is involved in the present proceedings was instituted during the pendency of this Appeal and the arguments in this case commenced as back as on 05.01.2023 and in the meantime, the writ petition being C.O. No.1078 of 2019 arising out of rejection of objection to execution proceedings was dismissed vide order dated 13.03.2023. This Court finds that the issue regarding jurisdiction of the Facilitation Council to pass the award/order was pending before this Court which is certainly a proceeding initiated before the initiation of the execution proceedings arising out of the same award/order. This Court also finds that the learned Single Judge while dismissing the writ petition being C.O. No.1078 of 2019 vide order dated 13.03.2023 has taken note of the fact that this Appeal is pending, but at the same time has recorded that no effective steps were being taken for disposal of the Appeal although the order-sheet of this Court reflects that the hearing of this case commenced as back as on 05.01.2023 and on the next date of hearing the supplier had remained absent. This Court is of the considered view that the present proceedings having been initiated prior to filing of the execution case by the supplier, this Court is not precluded from deciding the issues involved in the present case on the ground of res-judicata. This is over and above the fact that the learned Single Judge, while dismissing the writ petition being C.O. No.1078 of 2019 vide order dated 13.03.2023, has taken note of the fact that this Appeal is pending. v. In view of the aforesaid findings, it is held that the issue as to whether the order/award passed by the Facilitation Council is without jurisdiction is not hit by res-judicata and this point is decided against the supplier and in favour of the buyer. 15. Now the other issues formulated in paragraph 12 of this judgment are taken up for consideration. 16. This Court has perused the records received from the Facilitation Council and the parties also had the opportunity to go through the records and have referred to the records while advancing their arguments. 17. 15. Now the other issues formulated in paragraph 12 of this judgment are taken up for consideration. 16. This Court has perused the records received from the Facilitation Council and the parties also had the opportunity to go through the records and have referred to the records while advancing their arguments. 17. The supplier filed the reference on 04.02.2013 under section 18 (1) of the Act of 2006 against the buyer before the Facilitation Council for realization of outstanding dues amounting to Rs.1,39,77,562/- towards principal and Rs. 2,60,997/- towards interest up to 31.01.2013, total claim with interest was to the tune of Rs. 1,42,38,559/-. After due scrutiny of the records, the first notice was issued to the parties vide letter no. 416 dated 13.02.2013 along with the claim petition of the supplier with its enclosures and the buyer was directed to appear on 05.03.2013 and to file objection/written statement, if any, by 28.02.2013 through their authorized representative or themselves. The case was numbered as Case No. JHMSEFC-01/2013. Another notice to the same effect bearing letter no. 493 dated 21.02.2013 was issued fixing the date as 05.03.2013 and the date of filing objection as 28.02.2013. Before the next date fixed in the matter, a notice contained in letter no. 577 dated 27.02.2013 was issued adjourning the date of hearing from 05.03.2013 to 09.04.2013 by stating that on account of some reason the meeting of the Facilitation Council will not be held on 05.03.2013. Another notice to the same effect bearing memo no. 926 dated 23.03.2013 was issued to the parties fixing the date of hearing as 09.04.2013 and show cause/objection was to be filed by 05.04.2013 so that the matter be resolved as per the law by hearing both the parties on the date fixed failing which the matter would be decided ex-parte. Apparently, the stipulated date for filing objection was 05.04.2013 and date for hearing was fixed on 09.04.2013 so that the matter be resolved as per the law by hearing both the parties. 18. The buyer appeared in the proceeding on 05.03.2013 and filed a petition under section 8 of the Act of 1996, requesting the Facilitation Council to stay the further proceeding in Case No. JHMSEFC-01 of 2013 by referring to an arbitration agreement between the parties. 18. The buyer appeared in the proceeding on 05.03.2013 and filed a petition under section 8 of the Act of 1996, requesting the Facilitation Council to stay the further proceeding in Case No. JHMSEFC-01 of 2013 by referring to an arbitration agreement between the parties. During the pendency of the case before the Facilitation Council, the buyer invoked the arbitration clause and the supplier filed a petition under section 10 of the Code of Civil Procedure before the Facilitation Council to stay the arbitral proceedings started at the instance of the buyer. Consequently, the next date of hearing was fixed on 02.05.2013 vide letter no. 1249 dated 12.04.2013 informing the buyer about the petition filed by the supplier under section 10 of the CPC and extending the date of filing objection to 20.04.2013 and mentioning that on the date fixed for hearing, that is, 02.05.2013 appropriate order will be passed after hearing the parties. Prior to the next date of hearing, that is, 02.05.2013, there is another notice contained in memo no. 1330 dated 25.04.2013 informing the parties that the next date of hearing would be 17.05.2013 at 3:30 P.M. On 17.05.2013 both the parties had appeared and the case was refixed for hearing on 15.06.2013. This is apparent from notice contained in memo no. 1699 dated 06.06.2013 fixing the date of hearing as 15.06.2013 so that the matter could be resolved between the parties and the buyer was to file show cause failing which the matter was to be decided ex-parte. A copy of the notice is as under: 19. There is no proceeding sheet dated 15.06.2013 but the case was taken up on 17.06.2013 wherein the learned counsel for the supplier was heard and adjournment was sought by the learned counsel for the buyer and the matter was adjourned to 02.09.2013 directing the buyer to file a written statement till 19.08.2013 by way of last indulgence. A copy of the decision on 17.06.2013 as found in the record is as under: 20. A notice contained in memo no. 2125 dated 19.07.2013 was issued to the parties fixing the last date for filing show cause/objection as 19.08.2013 and date of hearing as 02.09.2013 and it was also mentioned that the parties would be heard so that the matter be resolved as per law after hearing both the parties failing which the matter would be decided ex-parte. 2125 dated 19.07.2013 was issued to the parties fixing the last date for filing show cause/objection as 19.08.2013 and date of hearing as 02.09.2013 and it was also mentioned that the parties would be heard so that the matter be resolved as per law after hearing both the parties failing which the matter would be decided ex-parte. A copy of the notice is as under: - 21. In the meantime, the supplier vide letter dated 23.05.2013 informed the Facilitation Council that the petition filed by the buyer under Section 9 of the Act of 1996 being Misc Case No. 16 of 2013 has been dismissed by the Court at Barasat. Against the order passed by the Court at Barasat, the buyer filed an appeal before the Calcutta High Court and the High Court was pleased to dispose of the stay petition vide order dated 08.07.2013 with an observation that the parties were free to make their respective contentions before the Tribunal. A copy of the order dated 08.07.2013 was also placed before the Facilitation Council. 22. The note-sheet dated 02.09.2013 reveals that both parties had appeared before the Facilitation Council and were heard. During the proceeding, the counsel for the buyer filed a time petition which was rejected, and simultaneously, a decision was taken to pass the award. In the note-sheet, it has been recorded that several opportunities were given by the Facilitation Council to the buyer but the buyer did not file any objection petition. The note-sheet dated 02.09.2013 further records that the award has been passed based on documentary evidence whose two copies were kept on record. Vide the said file noting, the award was placed for perusal and approval of the Director-cum-Chairman and then the award was to be signed by the members present in the proceeding on 02.09.2013. The note-sheet dated 02.09.2013 was prepared by the Deputy Director of Industries-cum-Member Secretary and note sheet was signed on 12.09.2013. 23. No date of hearing of the parties was fixed after 02.09.2013. However, the records reveal that the note-sheet did not end after 02.09.2013; there is a note-sheet dated 04.10.2013 recording that the status of the supplier as a small/medium enterprise was confirmed by the departmental chartered accountant and it was also confirmed that the total investment of the supplier in the plant and machinery was less than Rs. However, the records reveal that the note-sheet did not end after 02.09.2013; there is a note-sheet dated 04.10.2013 recording that the status of the supplier as a small/medium enterprise was confirmed by the departmental chartered accountant and it was also confirmed that the total investment of the supplier in the plant and machinery was less than Rs. 5 crores; there is another note-sheet dated 09.10.2013 by which the awarded amount has been quantified to be Rs. 1,66,38,943/- and it has been recorded that a modified award has been prepared and the matter was placed before the Director of Industries vide file noting dated 17.10.2013; the award was ultimately prepared and communicated vide memo no. 3342 dated 12.12.2013 and the last date of hearing in the matter was shown as 02.09.2013. Vide another file noting dated 02.01.2014 the applications for issuance of the certified copy of the award were processed and the parties were directed to submit the requisites for issuance of certified copy and ultimately, the certified copy was issued to the parties. Thus, the record reveals that though the last proceeding was held on 02.09.2013, the verification report regarding the status of the supplier as small-scale enterprise was received thereafter, and the quantification of the award was also done later. 24. Thus, the record reveals that though the last proceeding was held on 02.09.2013, the verification report regarding the status of the supplier as small-scale enterprise was received thereafter, and the quantification of the award was also done later. 24. In order to bring home how the matter proceeded before the Facilitation Council, it would be useful to reproduce the note-sheet from 02.09.2013 which is as follows:- The note-sheet dated 02.09.2013 signed on 12.09.2013 is quoted as under: ^^mi m|ksx funs'kd lg lnL; lfpo 02-09-13 fnukad 02-09-13 dks vk;ksftr >kj[k.M lw{e ,oa y?kq m|e lqxehdj.k ifj"kn dh cSBd esa izLrqr izdj.k esa mHk;i{kksa dh lquokbZ dh xbZA lquokbZ ds Øe esa foi{kh ds duh; vf/koDrk }kjk Time Petition nkf[ky fd;k x;k ftls ifj"kn ds v/;{k }kjk vLohd`r djrs gq, izLrqr izdj.k esa Award ikfjr djus dk fu.kZ; fy;k x;kA foi{kh dks vkosnd ds nkok ds fo:) vkifÙk nkf[ky djus gsr q Several Opportunity ifj"kn }kjk nh xbZA ijUrq foi{kh }kjk dksbZ vkifÙk vkosnu nkf[ky ugha fd;k x;kA fnukad 02-09-13 dks vkosnd dks lquokbZ dh xbZ] lafpdk esa miyC/k nkok vkosnu rFkk laYkXu Documentry Evidence ds vk/kkj ij Award ikfjr fd;k x;k ftlds vkyksd esa Award rS;kj dj nks izfr;ksa esa lafpdk ij miLFkkfir gSA voyksduksijkUr funs'kd lg v/;{k ls gLrk{kj@vuqeksnuksijkUr mDr frfFk dks mifLFkr lHkh lnL;ksa ls gLrk{kj izkIr djuk pkgsaxsA lqfiz;k 12-09-13 The note-sheet dated 04.10.2013 is quoted as under: Ikqu'p% iwoZ i`"B 7@fV0 ls miLFkkfir fVIi.kh ds Øe esa mYys[kuh; gS fd lafpdk la0 4@m0fu0@ JHMSEFC-08/2012 esa fedh ok;j odlZ ¼izk0½ fy0] efgyksax] jk¡ph cuke es0 iwokZapy fo|qr forj.k fuxe fy0 okjk.klh esa funs'kd m|ksx ds ekSf[kd funsZ'k ds vuqikyu esa izklafxd bdkbZ esa fedh ok;j odlZ ¼izk0½ fy0 jk¡ph dk Small/Medium Enterprises dk Status dh lEiqf"V gsrq foHkkxh; Chartered Accountant }kjk lEcfU/kr bdkbZ ds lanHkZ esa earO; izLrqr dh xbZ gS ftlds vuqlkj dEiuh dk Plant/Machinery es a investment Rs 5.00 Cr ls de gS rFkk Unit Small enterprises jgus dh earO; C.A. }kjk nh xbZ gS ftl ij funs'kd m|ksx dk vuqeksnu izkIr gSA Rknuqlkj mijksDr ifjizs{; esa fVIi.kh i`"B 7@fV0 ij miLFkkfir fVIi.kh ds vkyksd esa vxzsrj dkjZokbZ djuk pkgsaxsA lqfiz;k 4-10-13^^ The note-sheet dated 09.10.2013 is quoted as under: 25. The record of the case reveals that after filing of the case before the Facilitation Council by the supplier the first notice in the matter was issued on 13.02.2013; the buyer appeared and filed a petition under section 8 of the Act of 1996; the supplier also filed a petition under section 10 of the CPC; a few dates were fixed for filing of objection/written statement by the buyer and dates were fixed for hearing so that the claim could be resolved as per the Act of 2006 ; the argument of the supplier was partly heard on 17.06.2013 and the last opportunity to file written statement by the buyer was accorded till 19.08.2013 so that the matter be resolved during hearing on 02.09.2013; the buyer did not file written statement any prayed for time on 02.09.2013 but the time petition was rejected and two copies of the award were placed on record as recorded in the note-sheet dated 02.09.2013 for perusal and approval of the Chairman and then by the members of the Facilitation Council present on 02.09.2013. Thus, right from the stage of filing of the case and issuance of the first notice of hearing, the matter was pending for resolution of dispute as per the provision of the Act of 2006 which were apparently conciliation proceedings as per the first step to be taken by the Facilitation Council upon receipt of an application under section 18 of the Act of 2006 and also for filing objection/written statement by the buyer at the stage of conciliation itself but when the buyer did not file objection/written statement the Facilitation Council rejected the time petition on 02.09.2013 and instead of proceeding to enter into reference for deciding the dispute through arbitration upon recording a failure report of conciliation attempts, the Facilitation Council straightaway passed the award based on the evidence produced by the supplier at the stage of conciliation. Further, the award was finalized by the Facilitation Council after drawing a few more note-sheets including confirmation of the status of the supplier as a small-scale enterprise and quantification of the award whose note-sheet has been quoted above. Further, the award was finalized by the Facilitation Council after drawing a few more note-sheets including confirmation of the status of the supplier as a small-scale enterprise and quantification of the award whose note-sheet has been quoted above. Upon going through the records of the Facilitation Council, this Court is of the considered view that the Facilitation Council passed the award impugned in the writ petition abruptly without recording failure of conciliation proceedings and entering into reference to decide the dispute through arbitration in accordance with the provisions of the Act of 1996 read with section 18 of the Act of 2006. Such an award having been passed without entering into reference for arbitration cannot be said to be an award at all and is a nullity in law. Once there was no reference for arbitration and the Facilitation Council did not take up the dispute for arbitration, the order impugned in the writ petition cannot be termed as an award within the meaning of the Act of 1996 so as to direct the buyer to challenge the same in terms of section 34 of the Act of 1996 and dismiss the writ petition on such a ground. 26. The learned counsel for the supplier has relied upon the judgment passed by Hon’ble Gujarat High Court in “Principal Chief Engineer Vs. Manibhai & Brothers (Sleeper) and Another” reported in 2011 SCC OnLine Guj 6058 to submit that there is no requirement of making a formal order to the effect that conciliation has failed and that the dispute is to be taken up by the Council itself for arbitration and even pendency of a petition filed under section 8 of the Act of 1996 is of no consequences. He has relied upon paragraphs 38 and 39 of the judgment which are quoted as under: - “38. In the present case, after the unsuccessful attempt at conciliation, the Council has taken up the dispute for arbitration by itself, as envisaged by subsection (3) of Section 18. No doubt, there is no formal order to the effect that conciliation has failed, and no formal order of reference to itself for arbitration is made. In the present case, after the unsuccessful attempt at conciliation, the Council has taken up the dispute for arbitration by itself, as envisaged by subsection (3) of Section 18. No doubt, there is no formal order to the effect that conciliation has failed, and no formal order of reference to itself for arbitration is made. However, if the provisions of sub-section (3) of Section 18 are perused carefully, it is clear from the plain reading thereof that there is no requirement of making a formal order to the effect that conciliation has failed and that the dispute is to be taken up by the Council itself for arbitration. 39. It has been submitted by the learned advocate for the petitioner that the application under Section 8 of the Arbitration Act to refer the matter for arbitration, made by the petitioner, has not been decided by the Council, making the award without jurisdiction. In the considered opinion of this court, this submission is not acceptable, as the fact that the Council has taken up the matter to itself for arbitration, as empowered by sub-section (3) of Section 18 of the Act, does imply the failure of conciliation proceedings. Had the conciliation proceedings been successful, the stage of arbitration would not have come. There is no requirement in Section 18(3) that a formal order regarding failure of conciliation and taking up the matter by the Council for arbitration by itself, is mandatory. Failure to make such an order, which is not expressly required by law, would not render the award made by the Council without jurisdiction. Nor would such be the result only because the application made by the petitioner under Section 8 of the Arbitration Act remained undecided. The submissions of the learned advocate for the petitioner in this regard have no legal force.” 27. This Court is of the considered view that the aforesaid judgment passed by Hon’ble Gujarat High Court in the case of Manibhai & Brothers (supra) does not apply to the facts of this case. The submissions of the learned advocate for the petitioner in this regard have no legal force.” 27. This Court is of the considered view that the aforesaid judgment passed by Hon’ble Gujarat High Court in the case of Manibhai & Brothers (supra) does not apply to the facts of this case. In the said case, after the unsuccessful attempt at conciliation, the Council has taken up the dispute for arbitration by itself, as envisaged by sub-section (3) of section 18 although no formal order was passed to the effect that conciliation had failed and no formal order of reference to itself for arbitration was made and in the present case the Facilitation Council has neither recorded failure of conciliation nor passed any order referring the dispute to itself for arbitration nor has taken up the dispute for arbitration by itself, as envisaged by sub-section (3) of section 18 of the Act of 2006. In the present case the process of resolution of dispute initiated under section 18(1) of the Act of 2006 abruptly ended in passing of the award in the proceeding on 02.09.2013 when the buyer ultimately did not file written statement/objection to the claim of the supplier and its time petition was rejected. 28. At this stage it would be useful to refer to the judgment passed by the Hon’ble Supreme Court in Vijeta Construction Vs. Indus Smelters Ltd. and another” reported in 2021 SCC Online SC 3436. The buyer of the goods had filed the case before the Hon’ble Supreme Court challenging the order passed by the High Court of Chhattisgarh in writ petition by which the High Court had dismissed the writ petition as not maintainable in view of remedy available to the original petitioner under section 34 of the Act of 1996. The Hon’ble Supreme Court set-aside the judgment and order passed by the High Court and also set-aside the order passed by the concerned Facilitation Council and the matter was remitted to the Facilitation Council to decide the case in accordance with law and on its own merits after following the procedure as required under section 18 of the Act of 2006 and as per the observations made in the judgment. In the judgment the Hon’ble Supreme Court has considered the entire scheme of the Act of 2006 as well as the Act of 1996 and interplay between the provisions of the two Acts have been considered particularly with regards to Facilitation Council acting as a Conciliator at the first instance keeping in mind the provisions of sections 65 to 81 of the Act of 1996 dealing with conciliation and upon failure of conciliation proceedings Facilitation Council to act as an Arbitrator by entering into reference and then only arbitration proceedings commences to enable the Facilitation Council to pronounce an award in accordance with the provisions of the Act of 1996. In the said judgment it has been held as under: - a) It cannot be disputed that the Act of 2006 being a Special Act the procedure as prescribed under the Act of 2006 is required to be followed if there is any dispute between the parties. b) As per Sub-Section (2) of Section 18 of the Act of 2006 , on receipt of a reference under sub-section (1), the Facilitation Council shall have to resolve the dispute through conciliation either by the Facilitation Council itself or seek the assistance of any institution or centre providing alternate dispute resolution (ADR) services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Act of 1996 shall apply to such a dispute as if the conciliation was initiated under Part III of the Act of 1996. Thus, at the stage of conciliation the council/Conciliator have to bear in mind the provisions of sections 65 to 81 of the Act of 1996. c) As per Sub-Section (3) of Section 18 of the Act of 2006 after conciliation fails under Sub-Section (2) of Section 18 of the Act of 2006, and conciliation initiated under sub-section (2) is not successful, conciliation stands terminated without any settlement between the parties, the Facilitation Council shall either itself take up the dispute for arbitration or refer it to any institution or centre providing ADR services for such arbitration and the provisions of the Act 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 the Act of 1996 . Therefore, only after the procedure under sub-section (2) of section 18 of the Act of 2006 is followed and the conciliation fails, then only the arbitration proceedings commences and thereafter the provisions of the Act of 1996 shall then apply. d) In the case before the Hon’ble Supreme Court no such procedure was followed by the Facilitation Council as required to be followed under section 18 of the Act of 2006. It was noted that the proceedings before the Facilitation Council/Conciliator was at the stage of conciliation. It has been observed that it is true that at the stage of conciliation under sub-section (2) of section 18 of the Act of 2006, the Conciliator (Facilitation Council) was not required to permit the parties to lead the evidence and adjudicate the dispute. At the same time, if there was no amicable settlement during the conciliation or under sub-section (2) of section 18 of the Act of 2006 then the arbitration proceedings were required to be initiated as provided under sub-section (3) of section 18 of the Act of 2006 which was not initiated in the case before the Hon’ble Supreme Court. e) As per the scheme of the Act of 2006, the Facilitation Council has a dual role to play, one as a Conciliator as per sub-section (2) of section 18 of the Act of 2006 and thereafter in case the conciliation is unsuccessful as an Arbitrator as per sub-section (3) of section 18 of the Act of 2006. As a Conciliator the role of the Conciliator - Facilitation Council is to assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute and at that stage the Facilitation Council is not required to adjudicate the dispute. At that stage the Facilitation Council has no jurisdiction to make thorough enquiry and take evidence. However, once the conciliation fails and the settlement is not arrived at during the conciliation and thereafter when the arbitration proceedings commence as per sub-section (3) of section 18 of the Act of 2006, the Facilitation Council as an Arbitrator shall have all the powers of the Arbitrator as are available under the provisions of the Act of 1996. However, once the conciliation fails and the settlement is not arrived at during the conciliation and thereafter when the arbitration proceedings commence as per sub-section (3) of section 18 of the Act of 2006, the Facilitation Council as an Arbitrator shall have all the powers of the Arbitrator as are available under the provisions of the Act of 1996. Therefore, the Facilitation Council was held to be not right in observing that the Facilitation Council had no jurisdiction to make thorough enquiry and take evidence and that the Facilitation Council has been constituted with limited object and jurisdiction. 29. In another judgment passed by the Hon’ble Supreme Court in the case of “Jharkhand Urja Vikas Nigam Limited Vs. State of Rajasthan and others” reported in 2021 SCC Online SC 1257 decided on 15.12.2021 the order dismissing the intra Court Appeal preferred by the appellant confirming the order of the learned Single Judge in writ petition was under challenge. In the writ petition the order dated 06.08.2012 passed by the Facilitation Council at Rajasthan under the Act of 2006 was under challenge. In the said case, the appellant had not responded to the earlier notice issued by the council and only on the ground of non-appearance the Facilitation Council directed the appellant being the buyer to make payment as claimed by the private respondent. The writ petition challenging the order of the Facilitation Council was dismissed and it was submitted before the Court that the award was passed by the Facilitation Council and it was open to challenge under section 34 of the Act of 1996. The Hon’ble Supreme Court again examined the provisions of section 18 of the Act of 2006 and held in paragraph nos.11, 12 and 13 that there is a fundamental difference between conciliation and arbitration; the Council is obliged to conduct conciliation for which the provisions of sections 65 to 81 of the Act of 1996 would apply and 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 Act of 1996, to adjudicate the dispute and make an award. Proceedings for conciliation and arbitration cannot be clubbed. The aforesaid paragraphs are quoted as follows: “11. Proceedings for conciliation and arbitration cannot be clubbed. The aforesaid paragraphs are quoted as follows: “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 the 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.” 30. The Hon’ble Supreme Court held that it was clear from the records of the proceedings impugned that the Facilitation Council did not initiate arbitration proceedings in accordance with the relevant provisions of the Act of 1996. The Hon’ble Supreme Court held that the order passed by the Facilitation Council was a nullity and was contrary not only to the provisions of the Act of 2006 but also contrary to the various mandatory provisions of the Act of 1996. The Hon’ble Supreme Court held that the order passed by the Facilitation Council was a nullity and was contrary not only to the provisions of the Act of 2006 but also contrary to the various mandatory provisions of the Act of 1996. The order of the Facilitation Council was held to be patently illegal and it was held that there was no arbitral award in the eyes of law. It has also been held that it is true that under the scheme of the Act of 1996 an arbitral award can only be questioned by way of application under section 34 of the Act of 1996 and at the same time when an order is passed without recourse to arbitration and in utter disregard to the provisions of the Arbitration Act of 1996, section 34 of the Act of 1996 will not apply. It was held that the Appeal before the Hon’ble Supreme Court could not be rejected only on the ground that the appellant had not availed remedy under section 34 of the Act of 1996. The Hon’ble Supreme Court ultimately allowed the Civil Appeal and the order impugned was set aside. The order/award passed by the Facilitation Council was quashed and it was kept open to the Facilitation Council to either take the dispute for arbitration on its own or refer the same to any institution or centre providing alternate dispute resolution services for resolution of dispute between the parties and it was left open to the Arbitral Tribunal to decide the matter on its own merit. 31. Thus, similar view has been taken by the Hon’ble Supreme Court in the case of Vijeta Construction (Supra) vide judgment dated 23.09.2021 and subsequently in the case of Jharkhand Urja Vikas Nigam Limited (Supra) vide judgment dated 15.12.2021. Both the cases were arising out of writ proceedings challenging the order/award of the Facilitation Council of the concerned State and in both the cases the order/award passed by the Facilitation Council were quashed as the order/award was passed by the Facilitation Council was not passed in accordance with the Act of 2006 read with the Act of 1996 and the matter was remitted back to the concerned Facilitation Council. 32. 32. The records of the case indicate that on 02.09.2013 after refusing to grant further time to the buyer, the Facilitation Council straightaway proceeded to draw the award and also recorded that an award was drawn in two copies and was kept in the record and was to be placed before the Director-cum-Chairman for his signature/approval and thereafter, the signature on the award was to be obtained by all the members. The record indicates that the last proceeding which had taken place in presence of the parties was on 02.09.2013 and thereafter, there were internal file notings regarding information obtained about the status of the supplier as a small-scale industry, quantification of the award etc. There is neither any material to show that any proceeding was recorded to indicate that the conciliation had failed nor there is any proceeding to show that any decision whatsoever was taken by the Facilitation Council either by themselves entering into arbitration upon failure of conciliation or to refer to any other person for the purposes of arbitration in terms of section 18(3) of the Act of 2006. Meaning thereby that the Facilitation Council did not exercise any power whatsoever in terms of the Act of 1996 read with section 18(3) of the Act of 2006 to enter into reference and it has been established without any doubt in the mind of this Court that the order/award of the Facilitation Council which was impugned in the writ petition has been passed without entering into reference. 33. Considering the narration of the proceedings before the Facilitation Council from the records of the Facilitation Council as mentioned in details in the above paragraphs, this Court is of the considered view that the present case is squarely covered by the judgment passed by the Hon’ble Supreme Court in the case of Vijeta Construction (Supra) and Jharkhand Urja Vikas Nigam Limited (Supra). In such circumstances, the impugned order passed by the learned writ Court asking the buyer to file petition under section 34 of the Act of 1996 to challenge the award passed by the Facilitation Council and impugned before the learned writ Court cannot be sustained in law as the award passed by the Facilitation Council is not an award passed under the Act of 1996 in view of the fact that the Facilitation Council never entered into reference to act as an Arbitrator to enable them to pronounce an award which could be subject matter of challenge under section 34 of the Act of 1996. The so called award passed by the Facilitation Council and impugned in the writ proceedings is a nullity in law and is fit to be set aside and matter is required to be remitted before the Facilitation Council to proceed as per law laid down by the Hon’ble Supreme Court in the case of Vijeta Construction (Supra) and Jharkhand Urja Vikas Nigam Limited (Supra). 34. Accordingly, it is held that the learned writ Court was not justified in dismissing the writ petition on the ground that the buyer had a remedy under section 34 of the Act of 1996 as the award/order impugned in the writ petition was not an award within the meaning of the Act of 1996 read with the Act of 2006 so as to be amenable to challenge under section 34 of the Act of 1996. 35. As a cumulative effect of the aforesaid findings, all the issues framed in paragraph 12 above are decided against the supplier (Respondent no.3) and in favour of the buyer (Appellants). 36. Consequently, the order/award passed by the Facilitating Council as contained in memo no. 3342 dated 12.12.2013 as well as impugned order passed by the learned writ Court dated 03.03.2016 passed in W.P. (C) No. 6 of 2014 are quashed and set-aside and the writ petition is allowed in the aforesaid terms. Matter is remitted to the Facilitation Council for proceeding afresh right from the stage of conciliation in accordance with law. It is needless to observe that for conciliation/arbitration, the Facilitation Council shall follow the provisions of the Act of 2006 read with the Act of 1996. Matter is remitted to the Facilitation Council for proceeding afresh right from the stage of conciliation in accordance with law. It is needless to observe that for conciliation/arbitration, the Facilitation Council shall follow the provisions of the Act of 2006 read with the Act of 1996. As this Court has not gone into the other points raised by the parties it is open for the parties to raise their points in accordance with law. The parties to appear before the Facilitation Council on 18.03.2024 at 11.00 a.m. and upon their appearance the Facilitation Council shall proceed expeditiously and in accordance with law. 37. This Appeal is allowed in the aforesaid terms. 38. Pending interlocutory application, if any, is closed. 39. Registry is directed to send back the original records received from the Facilitation Council through a Special Messenger.