Atlantic Projects Limited, ... vs Micro And Small Enterprises ...
2018 Latest Caselaw 91 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR

                                                       WRIT PETITION NO.6141/2016

Atlantic Projects Limited, 
Shantiniketan Building, 
8th Floor, Room No.815, Camac 
Street Kolkatta West Bengal 700 017, 
through its Authorized Representative 
Mr. Amitabh Mukherjee.                                                                                                                                          ..Petitioner.

           ..Vs..

1.         Micro and Small Enterprises Facilitation
           Council, Amravati, through its Chairperson
           the Joint Director of Industries, Amravati 
           Region, Amravati having office at 36, 
           Bhagya Nagar, Ganediwal Layout Commissioner
           Office Road, Amravati 444 602.

2.         M/s. Dayal Cotspin Limited having Head
           Office at Dayal House, New Radhakisan Plots
           Akola 444 001, through its Director 
           Mr. Pavankumar J. Bachhuka.                                                                                                             ..Respondents.
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           Shri K.N. Shukul, Advocate for the petitioner.
           Shri Suresh Dhole, Advocate for respondent No.2.
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                                                                 CORAM :  Z.A. HAQ, J.

                                                                 DATE  :     5.1.2018.
                                                        


ORAL JUDGMENT

1. Heard Shri K.N. Shukul, Advocate for the petitioner and Shri Suresh

Dhole, Advocate for respondent No.2. None for respondent No.1 though

served.

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2. Rule. Rule made returnable forthwith.

3. The respondent No.2 claiming to be a "small enterprise" has

approached the respondent No.1 / Facilitation Council under Section 18 read

with Sections 15, 16 and 17 of the Micro, Small and Medium Enterprises

Development Act, 2006 (for short "the Act of 2006") seeking directions against

the present petitioner for payment of the amount, which according to the

respondent No.2, is receivable by it from the present petitioner. In these

proceedings, the petitioner raised an objection that the respondent No.2 is not

a "small enterprise" as contemplated by Section 2(m) of the Act of 2006 and,

therefore, the Facilitation Council has no jurisdiction to consider the

application. The petitioner raised another objection that the Facilitation

Council has directly issued notice under Section 18(3) of the Act of 2006

without taking action as per Sub-Section (2) of Section 18 of the Act of 2006.

The Facilitation Council has passed an order recording that the objection raised

by the petitioner to the maintainability of the proceedings is overruled. It is

further recorded that a clarification was given that notice under Section 18(3)

of the Act of 2006 was issued by oversight and that the matter would be dealt

with as per the provisions of the Act of 2006. Being aggrieved by this order,

the petitioner has approached this Court.

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4. The learned Advocate for the respondent No.2 has raised

preliminary objection to the maintainability of the petition on the ground that

the petitioner cannot invoke jurisdiction of this Court under Article 226 of the

Constitution of India and if at all the petitioner is aggrieved, he will have to

avail appropriate remedy under the Arbitration and Conciliation Act, 1996. To

support the submission, reliance is placed on the judgment given in the case of

Lalitkumar V. Sanghavi (dead) through L.Rs. Neeta Lalit Kumar Sanghavi and

another V/s. Dharamdas V. Sanghavi and others reported in (2014) 7 SCC 255.

5. The objection to the maintainability of this writ petition cannot be

accepted. The petitioner has no remedy to challenge the impugned order and,

therefore, it cannot be said that the petitioner cannot invoke jurisdiction of this

Court under Articles 226 and 227of the Constitution of India.

6. As far as the contention of the petitioner that his objection to

maintainability of proceedings before Facilitation Council is overruled without

recording any reasons is concerned, the learned Advocate for the respondent

No.2 has accepted that the objection raised by the petitioner is not rejected and

it will be dealt with by the Facilitation Council at appropriate stage.

7. The learned Advocate for the respondent No.2 has further submitted

that the Facilitation Council has accepted that notice under Section 18(3) of

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the Act of 2006 was issued by oversight. It is submitted that the Facilitation

Council has recorded that the matter would be dealt with as per the provisions

of the Act of 2006 and the Facilitation Council is duty-bound to comply with

the mandate of Section 18(2) of the Act of 2006.

8. In view of the submissions made on behalf of the respondent No.2,

following order is passed:

(i) The respondent No.1 / Facilitation Council shall consider the

objection to the maintainability of the proceedings before it and the

observations made by it in the impugned order shall not come in its way in

deciding the objection raised by the petitioner.

(ii) Similarly, the respondent No.1 / Facilitation Council shall comply

with the mandate of Sub-Section (2) of Section 18 of the Act of 2006 before

proceeding further on the reference made by the respondent No.2.

(iii) The respondent No.2 and petitioner shall appear before the

respondent No.1 / Facilitation Council on 30 th January, 2018 at 11 a.m. and

abide by further orders / instructions in the matter.

With the above observations / clarifications, the writ petition is

disposed.

In the circumstances, parties to bear their own costs.

JUDGE Tambaskar.