Microvision Technologies Pvt Ltd vs Union Of India
2023 Latest Caselaw 8658 Bom

2023:BHC-OS:8899                                                   rpcdl-36475-2022.doc




                    Jsn
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                      IN ITS COMMERCIAL DIVISION

                                REVIEW PETITION (L) NO.36475 OF 2022
                                                 IN
                                   NOTICE OF MOTION NO.3 OF 2021
                                                 IN
                             COMM ARBITRATION PETITION (L) NO.855 OF 2018

                    Microvision Technologies Pvt. Ltd.                           ...Petitioner
                         V/s.
                    Union of India                                            ...Respondent


                    Mr. Alankar Kirpekar with Sagar Kasar, Mr. Shekhar Bhagat, Mr.
                           Ayush Tiwari and Ms. Chaitali Bhogle i/b. Sagar Kasar for
                           the Petitioner.
                    Mr. T.J. Pandian with T.C. Subramanian for the Respondent.

                                                  CORAM:     R.I. CHAGLA, J.

                     ORDER RESERVED ON                       27TH JULY, 2023

                     ORDER PRONOUNCED ON                     24TH AUGUST, 2023

                    ORDER

1. By this Review Petition, the Petitioner is seeking

review of order dated 15th May 2020 passed in Commercial Notice

of Motion (L.) No. 2043 of 2019 in Commercial Arbitration

Petition (L.) No. 855 of 2018 and for restoration of Commercial

Notice of Motion (L.) No. 2043 of 2019 on the file of of this Court.

Further, relief is sought for transfer of Commercial Arbitration

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Petition (L.) No. 855 of 2018 to District Court at Nashik as prayed

in Commercial Notice of Motion (L.) No. 2043 of 2019.

2. The Petitioner has filed this application under the

provisions of Order 47 Rule 1 read with sections 114 and 151 of

Code of Civil Procedure, 1908. The Petitioner had upon being

advised filed Commercial Appeal (L.) No. 9465 of 2020 assailing

the Order dated 15th May 2020 passed by this Court. Thereafter,

upon realizing that said Commercial Appeal was not maintainable,

the Petitioner has preferred the present Review Petition for review

of the said order dated 15th May 2020. The Commercial (L.) 9465

of 2020 was accordingly withdrawn with liberty to file the present

Review Petition which was allowed by Division Bench of this Court

vide order dated 22nd November, 2022. Copy of the order has

been annexed at Exhibit B to the Review Petition.

3. A brief background of facts is necessary.

4. The Petitioner is a supplier within the meaning of the

Micro, Small and Medium Enterprises Development Act, 2006

("MSMED Act"). The Petitioner had contracts awarded by the

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Respondent (through Central Railways) for Electrification of

Integrated Security System-Video Surveillance System proposed to

be implemented by the Central Railways at certain places. Dispute

arose between the parties in connection with the contract and

which was referred to conciliation under Section 18 (2) of the

MSMED Act. Upon failure of conciliation, the Petitioner applied to

the Facilitation Council to act under Section 18(3) of the MSMED

Act by referring the dispute to the Arbitrator or Institution as

provided under the MSMED Act.

5. The Petitioner states that pending the consideration of

the Application, the Petitioner moved a Petition under Section 9 of

the Arbitration and Conciliation Act, 1996 ("Arbitration Act")

before the District Court at Nashik, seeking interim relief. The

Petitioner then moved an application under Section 11(6) of the

Arbitration Act before this Court for appointment of an Arbitrator

as the Facilitation Council had failed to refer the dispute to an

independent Arbitrator or Institution.

6. This Court by an order dated 16th December, 2016

allowed the Application of the Petitioner under Section 11(6) of

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the Arbitration Act and appointed an Arbitrator to whom the

disputes of the parties were referred. Annexed at Exhibit C to the

Petition is a copy of the said order dated 16th December, 2016.

7. The Petitioner has thereafter stated that upon the

appointment of the Arbitrator, the Petitioner withdrew the

Application under Section 9 having regard to Section 9(b) of the

Arbitration Act inserted by Act 3 of 2016 with retrospective effect

from 25th October, 2015.

8. Thereafter, the arbitration proceedings have been

conducted in Mumbai and concluded by Award passed by the Sole

Arbitrator. There was certain ambiguity and omission in the Award

considering certain points which were referred before the

Arbitrator for correction and the corrected Award / Order came to

be passed.

9. The Award of the Arbitrator came to be challenged in

Commercial Petition (L) No.855 of 2018 along with Notice of

Motion filed for condonation of delay.

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10. An Application being Notice of Motion No.2043 of

2019 was preferred by the Petitioner in this Court for transfer of

Commercial Arbitration Petition to District Court at Nashik on the

ground that the initiation of the Arbitration was not in accordance

with the Arbitration Agreement but by way of special provisions of

Sections 15 to 24 of the MSMED Act. The Petitioner's contention

was that the said provisions of the MSMED Act have overriding

effect on any other law including the Arbitration Act. This Court by

the said order dated 15th May, 2020 dismissed the Commercial

Notice of Motion No.2043 of 2019.

11. The Petitioner had preferred Special Leave Petition in

the Supreme Court against the said order passed by this Court.

However, the SLP was rejected.

12. The Petitioner has filed the present Review Petition for

review of the said Order dated 15th May, 2020.

13. Mr. Kirpekar, learned Counsel appearing for the

Petitioner has submitted that there are patent errors of law on the

face of the said Order dated 15th May, 2020 for which review has

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been sought. The said order has followed the decision of Division

Bench of this Court in M/s. Steel Authority of India Ltd. Vs. The

Micro, Small Enterprises Facilitation Council 1 without considering

the law laid down by the Division Bench of this Court in Gujarat

State Petronet Limited Vs. Micro and Small Enterprises Facilitation

Council and Ors.2. He has submitted that this Court in the said

Order dated 15th May, 2020 by placing reliance on Steel Authority

India Ltd. (Supra) held that an Agreement for Arbitration shall

continue to be valid even in the face of the Council's powers under

Section 18 of the MSMED Act. This Court has in the said Order

held that, the decision of the Allahabad High Court cited on behalf

of the Petitioner viz. Paper and Board Converters Vs. UP State

Micro and Small Enterprises Facilitation Council, Kanpur 3 which

had been followed by the Gujarat High Court in Principal Chief

Engineer Vs. Manibhai and Brothers4 and which differed from the

view of this Court in Steel Authority India Ltd. (Supra) would not

lead to an inference that the decision of this Court in Steel

Authority India Ltd. (Supra) has been dissented from or overruled.

 1       2010 SCC OnLine Bom 2208.
 2       AIR 2018 Bombay 265.
 3       2014 (5) AWC 4844.
 4       MANU/GJ/1164/2016.







                                                    rpcdl-36475-2022.doc

14. Mr. Kirpekar has submitted that this Court in the said

Order dated 15th May, 2020 had lost sight of the decision of the

Division Bench of this Court in Gujarat Petronet (Supra). The

decision of the Allahabad High Court in Paper and Board

Converters (Supra) which had been followed by the Gujarat High

Court in Manibhai and Brothers (Supra) has been considered in

the said decision. Further, the decision of this Court (Nagpur

Bench) in Steel Authority India Ltd.(Supra) has also been

considered. The Division Bench had observed that the decision of

Principal Chief Engineer (Supra) had been challenged before the

Apex Court and the order of the Apex Court dated 5th July, 2017

shows that the Apex Court approved the view of the Gujarat High

Court in Manibhai and Brothers (Supra) and the Allahabad High

Court in Paper and Board Converters (Supra). The Division Bench

of this Court has accordingly rejected the submission of Counsel

for Petitioner that reference made to Respondent No.1 MSEFC by

Respondent No.3 therein is not maintainable in view of

independent arbitration agreement between the parties.

15. Mr. Kirpekar has submitted that in the present case the

Petitioner had never requested this Court to appoint an Arbitrator

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on the basis of Arbitration Agreement between the parties. It only

by virtue of the MSEFC, Nashik failing to refer the matter to the

arbitrator upon the conciliation under Section 18(2) of the

MSMED Act having failed, was the Petitioner compelled to

approach this Court under Section 11(6), more particularly Section

11(6) (c) of the Arbitration Act read with Section 18(3) of the

MSMED Act for appointment of an Arbitrator. The Division Bench

of this Court in Gujarat Petronet (Supra) has held that the

provisions of the MSMED Act have overriding effect on any other

law including Arbitration Act. This Court by failing to consider the

said decision in the said order dated 15th May, 2020 erred in law

by holding that the Arbitration Agreement would continue to be

valid even in the face of the Facilitation Council's powers under

Section 18 (3) of the MSMED Act. This particularly when the said

provision of the MSMED Act has been invoked by the Petitioner.

16. Mr. Kirpekar has further submitted that this Court in

the said Order dated 15th May, 2020 failed to consider Section

18(4) read with Section 24 of the MSMED Act which has

overriding effect on the Arbitration Act. Under Section 18(4), there

is a non obstante clause which provides that the Facilitation

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Council shall have jurisdiction to act as an arbitrator or conciliator

under this Section in a dispute between the supplier located within

its jurisdiction and the buyer located anywhere in India. Thus, this

Court ought to have considered that the Petitioner as supplier

being located in Nashik was the relevant factor for jurisdiction and

by virtue of which the District Court, Nashik had jurisdiction over

the dispute between the Petitioner and the Respondent.

Accordingly the Arbitration Petition under Section 34 of the

Arbitration and Conciliation Act is only maintainable before the

District Court, Nashik. This apart from the provisions of Section

2(1) (e) read with Sections 9 and 42 of the Arbitration Act, in view

of the Petitioner having invoked the jurisdiction of that Court by

filing Application under Section 9 of the Arbitration and

Conciliation Act,1996. He has submitted that any other

interpretation will lead to an incongruous result and would not

lead to a harmonious construction of the MSMED Act with the

Arbitration Act so as to give effect to the objects and reasons of

both statutes in its true sense.

17. Mr. Kirpekar has submitted that in a subsequent

decision of the Supreme Court in Gujarat State Civil Supplies

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Corporation Limited Vs. Mahakali Foods Private Ltd. 5, decision

dated 21st October, 2022, the Supreme Court has set aside the

decision of the Division Bench of this Court in Steel Authority of

India Ltd. (Supra). This by holding that the Chapter V of the

MSMED Act has an overriding effect over the provisions contained

in the Arbitration Act and the Facilitation Council would be

entitled to proceed further with the reference made by the supplier

under Section 18(1) of the MSMED Act, despite an independent

arbitration agreement existing between the parties. The Supreme

Court has held that a private agreement between the parties

cannot obliterate the statutory provisions of MSMED Act. Once the

statutory mechanism under sub section (1) of Section 18 is

triggered by any party, it would override any other agreement

independently entered into between the parties, in view of the non

obstante clauses contained in sub Section (1) and sub section (4)

of Section 18 of the MSMED Act. The Supreme Court has held that

while interpreting a statute, if two interpretations are possible, the

one which enhances the object of the Act should be preferred than

the one which would frustrate the object of the Act. The Supreme

Court has held that if the submission of the counsel for the buyers

5 2022 SCC OnLine SC 1492.

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that the party to a dispute covered under the MSMED Act, 2006

cannot avail the remedy available under Section 18(1) of the

MSMED Act, when an independent arbitration agreement between

the parties exists is accepted, the very purpose of enacting the

MSMED Act, would get frustrated.

18. Mr. Kirpekar has also relied upon the decision of the

Supreme Court in Silpi Industries Etc. Vs. Kerala State Road

Transport Corporation & Anr.6, wherein the Supreme Court has

held that if an arbitration agreement between the parties is there,

the same is to be ignored in view of the statutory obligations and

mechanism provided under the MSMED Act.

19. Mr. Kirpekar has referred to certain decisions on

Section 9 read with 42 of the Arbitration Act. This is in view of the

fact that the Petitioner had filed the Application under Section 9 of

the Arbitration Act before the District Court, Nashik. Although the

application was withdrawn by the Applicant, he has submitted that

the mere filing of the Application would be a factor to be

considered under the mandate of Section 42 of the Arbitration Act.

 6       2021 SCC OnLine SC 439.







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Further, by virtue of Section 2(1) (e) read with the Section 9 and

42 of the Arbitration Act, the District Court, Nashik will have

jurisdiction for entertaining the present challenge to the Award.

This Court in the said order dated 15th May, 2020 has relied upon

its prior decision in Vachaspati Sharma Vs. India Cements - Capital

and Finance Ltd.7 which has held that the proceedings filed under

Section 9 of the Act, if not pressed, would not restrict the future

jurisdiction over the arbitral proceedings or all subsequent

applications arising out of that arbitration agreement to the

Section 9 Court.

20. Mr. Kirpekar has submitted that the said

decision had not considered the decision of the Supreme Court in

Fiza Developers & Inter Trade Pvt. Ltd. Vs. AMCI (India) Pvt. Ltd.

& Anr.8, interpreting similar language appearing in Section 36 of

the Arbitration Act. Further, Vachaspati Sharma (Supra) has been

implidely overruled in State of West Bengal Vs. Associated

Contractors9 which makes it clear that the language in Section 42

of the Arbitration Act merely requires an application "made in a

7 MANU/MH/1607/2013.

 8       (2009) 17 SCC 796.
 9       (2015) 1 SCC 32.







                                                     rpcdl-36475-2022.doc

Court" which is similar language appearing in Section 36 and

which would mean the mere filing of an application, albeit in that

case under Section 36 of the Arbitration Act.

21. Mr. Kirpekar has accordingly submitted that

mere filing of the application would constitute an application

having been "made in a Court" for the purpose of Section 42. Thus,

under Section 42 of the Arbitration Act, the Court alone having

jurisdiction over the arbitral proceedings is the Court where an

application under part 1 has been made (including Application

under Section 9) and all subsequent applications arising out of that

agreement and the arbitral proceedings shall be made in that Court

and in no other Court. He has submitted that in view of the

application being made under Section 9 of the Arbitration and

Conciliation Act in the District Court, Nashik, that Court will have

jurisdiction over the arbitral proceedings including Petition under

Section 34 of the Arbitration Act challenging the Award passed.

22. Mr. Kirpekar has submitted that this Court has

overlooked the said provisions of the Arbitration Act in holding

that the District Court, Nashik does not have jurisdiction in the

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matter, not being a 'Court' within a meaning of Section 2(1) (e) of

the Act. This is in view of the finding that under the Arbitration

Agreement, the seat of the arbitration is Mumbai. He has

submitted that this Court has further erred in holding that the

filing of the Application under Section 9 of the Arbitration and

Conciliation Act does not have effect of restricting the future

jurisdiction over arbitral proceedings in the matter to that Court

and that the present Arbitration Petition and companion Notice of

Motion cannot be transferred to that Court.

23. Mr. Pandian, the learned Counsel appearing for the

Respondent, has supported the said order of this Court dated 15th

May, 2020. He has submitted that the Application was made by the

Petitioner under Section 11 of the Arbitration and Conciliation Act

and not under Section 18(3) of the MSMED Act. He has submitted

that this Court in allowing the Application under Section 11 of the

Arbitration Act had noted that there was an Arbitration Agreement

between the parties in terms of Clauses 63 and 64 of the contract.

The Petitioner having chosen to refer the disputes between the

Petitioner and Respondent under the said clauses of the Arbitration

Agreement cannot now contend that the Application for

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appointment of Arbitrator was initiated under the MSMED Act and

/ or that the provisions of the MSMED Act namely Section 18 will

apply to the appointment of the Arbitrator and the Arbitral

Proceedings as well as the challenge to the award.

24. Mr Pandian has further submitted that if the Petitioner

was aggrieved by the decision of the Facilitation Council under the

MSMED Act not to take up the dispute for arbitration or refer the

dispute to an institution or centre for arbitration, the remedy

available to the Petitioner was to file a Writ Petition directing the

Facilitation Council to proceed with arbitration.

25. Mr Pandian has submitted that this Court in the said

Order has correctly referred to the decision of the Division Bench

of this Court in Steel Authority of India (Supra) in finding that the

agreement of arbitration continues to be valid even in the face of

Council's powers under Section 18 of the MSMED Act. This Court

has considered the decisions of the Allahabad High Court in Paper

and Board Converters (Supra) and the Gujarat High Court in

Manibhai and Brothers (Supra) and held that in those decisions

the Court was considering whether the Facilitation Council may

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still have jurisdiction to take up a dispute for arbitration or refer it

to an institution or Centre for arbitration notwithstanding anything

contained in the arbitration agreement. He has submitted that in

the present case, this Court is considering the position that the

Petitioner had made an application for referring this dispute for

arbitration under Section 11 of the Arbitration and Conciliation Act

and not under Section 18(3) of the MSMED Act.

26. Mr. Pandian has further placed reliance upon the order

of the learned Single Judge of this Court dated 4th July, 2017

passed in Writ Petition No.1328 of 2016, wherein the Single Judge

has considered that the Facilitation Council by order dated 21st

October, 2015 rejected the Petitioner's Petition No.57 of 2015 for

conciliation under the MSMED Act. The Facilitation Council had

referred to Clauses 63 and 64 of the Contract between the

Petitioner and the Respondent to direct the Petitioner to resort to

the remedy of arbitration thereunder. This was challenged by the

Petitioner before the District Court and which Petition was

dismissed on ground of want of jurisdiction to entertain the

proceedings. The Petitioner was directed to approach the

competent forum after which the Petitioner filed the Petition which

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was being considered by the learned Single Judge of this Court.

The Petitioner had not disputed the finding that the District Court

had no jurisdiction to entertain the challenge to the order passed

by the Facilitation Council. He has accordingly submitted that the

Petitioner has accepted the jurisdiction of this Court in the arbitral

proceedings.

27. Mr. Pandian has also referred to the decision of the

learned Single Judge of this Court in Sanjay Ramchandra

Shendkar and Ors. Vs. Narayan Antu Zende10, wherein the learned

Single Judge of this Court has held that a review is by no means an

Appeal in disguise, whereby an erroneous decision is corrected, but

it lies only for patent error, without any elaborate argument that

one could point to the error and therefore before exercising the

power of review, error apparent on the face of the record must be

established. The error should be so striking that on a mere looking

it is spotted and it would not require any long drawn process of

reasoning. The learned Single Judge of this Court in the said order

had considered the decision of the Supreme Court in Beghar

10 Review Petition No.70 of 2022 in WP No.10975 of 2018 dated 12th April, 2023.

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Foundation, thru its Secretary V. Justice K.S. Puttaswamy 11,

wherein it was held that the Review Petition cannot be entertained

on the ground of "change in the law" by the subsequent decision /

judgment of larger Bench. He has accordingly submitted that the

subsequent decisions relied upon on behalf of the Petitioner

including the decision in Gujarat State Civil Supplies Corporation

Ltd. (Supra) which has set aside the decision of this Court in Steel

Authority of India Ltd. (Supra) cannot be a ground for review.

28. Mr. Pandian has also placed reliance upon the decision

of the Single Judge of this Court in Microvision Technologies Thru

its Proprietor Atul Nemichand Dhadiwal Vs. Dhule Municipal

Corporation Thru its Commissioner12, wherein this Court has also

held that the power of review can be exercised provided there is an

error of law apparent on the face of the record or the

misconception of fact or law by the Court while rendering the

judgment under review.

 11      (2021) 3 SCC 1.
 12      2022 SCC OnLine Bom 6068.







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29. Mr. Pandian has accordingly submitted that there is no

merit in the Review Petition and that the Review Petition be

rejected.

30. Having considered the rival submissions, this Court in

the said Order dated 15th May, 2020 has not considered the

decision of the Division Bench of this Court in Gujarat State

Petronet Limited (Supra). In the said decision, the Division Bench

of this Court has considered Steel Authority of India (Supra) on

which this Court had placed reliance in the said order in holding

that the agreement for arbitration shall continue to be valid even

in the face of Facilitation Council's power under Section 18 of the

MSMED Act. The Division Bench has held that a reference made by

the Petitioner under the MSMED Act is maintainable inspite of the

independent arbitration agreement between the parties. The

Division Bench of this Court has referred to the order dated 5th

July, 2017 of the Supreme Court which rejected the challenge to

the decision of the Division Bench of the Gujarat High Court in

Manibhai and Brothers (Supra) which in turn had expressed its

inability to agree with the decision of the Single Judge of this

Court (Nagpur Bench) in Steel Authority of India Ltd. (Supra).

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The Division Bench of the Gujarat High Court in the said decision

has held that once the Facilitation Council has jurisdiction to act as

an arbitrator and conciliator in a dispute between the parties, the

Council has only one of the two courses of action open to it, "either

conduct arbitration itself or refer to the parties or Centre or

institution providing alternate dispute resolution services

stipulated in sub section 3 of Section 18 of the MSMED Act". The

Division Bench of the Gujarat High Court in that case did not find

any error in the decision of the Facilitation Council in not

entertaining the buyers application under Section 8 of the

Arbitration Act.

31. Thus, in my view this Court in the said order dated

15th May, 2020 has committed a patent error of law in not

considering the decision of the Division Bench of this Court in

Gujarat State Petronet Limited (Supra).

32. Another factor to be considered is that the Application

made by the Petitioner was under Section 11(6) (c) of the

Arbitration Act for referring the dispute to arbitration. This

provision specifically provides as under:-

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"a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment".

33. Thus, an Application under Section 11(6) is made

when the institution as in the present case, the Facilitation Council

fails to perform any function entrusted to it under the procedure

contemplated in Section 18(3) of the (MSMED Act) and pursuant

to which appointment is made for referring the disputes to

arbitration. This Court in the said Order dated 15th May, 2020 has

treated the application as if it was made under Section 11(5) and

not under Section 11(6) of the Arbitration Act. Thus, this Court in

the said Order has overlooked the relevant provision of law.

34. Under Section 18(3) of the MSMED Act, the following

is provided:-

"(3) Where the conciliation initiated under sub- section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer to it any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration

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and Conciliation Act, 1996 (26 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 that Act".

35. The said provision expressly provides for the

Facilitation Council in the event conciliation is not successful and

stands terminated without any settlement between the parties to

refer to any institution or centre providing alternate dispute

resolution services for such arbitration and then the provisions of

Arbitration Act shall apply to the disputes as if the arbitration was

in pursuance of an arbitration agreement referred to in Sub

Section 1 of Section 7 of that Act. Upon the failure on the part of

the Facilitation Council to refer the dispute to arbitration, an

Application may be made under Section 11(6) (c) and accordingly

in the present case the application was made for appointment of an

Arbitrator. Thus, Section 18 of the MSMED Act has to be read

harmoniously with Section 11 of the Arbitration Act.

36. I find no merit in the submission on behalf of the

Respondent that in the event the Facilitation Council failed to refer

the dispute to arbitration, the only remedy available to the

Applicant was to file a Writ Petition seeking such direction against

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the Facilitation Council. This submission overlooks the fact that

there is an in built provision under the Arbitration Act, viz. Section

11(6) (c), which provides for appointment of an Arbitrator in such

cases. Thus, there is a patent error of law on the face of the record

in that Section 11(6) (c) of the Arbitration Act has been completely

given a go by to in the said order of this Court.

37. Further, Section 18(4) of the MSMED Act has not even

been considered in the said Order. Section 18(4) reads as under:-

"(4) Notwithstanding anything contained in any other law for the time being in force, the Micro and Small Enterprises Facilitation Council or the centre providing alternate dispute resolution services shall have jurisdiction to act as an Arbitrator or Conciliator under this section in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India".

38. Thus, under this provision of MSMED Act, the

jurisdiction to act as an Arbitrator or Conciliator is determined

according to where the supplier is located. In the present case, the

Petitioner being the supplier is located at Nashik. Accordingly, the

District Court, Nashik will have jurisdiction with respect to the

arbitral proceedings and any challenge to the Award by way of

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Petition under Section 34 of the Arbitration Act is to be filed before

that Court. This material provision was required to be considered

in the said Order dated 15th May, 2020. By overlooking this

provision, there is an error apparent on the face of the said Order.

39. The said order by placing reliance upon Clause 64 of

the General Condition of Contract, where the venue for arbitration

is Mumbai and not Nashik Court has clearly overlooked Section

Section 18(4) of the MSMED Act which is a non-obstante

provision.

40. There are submissions made with regard to the issue

of the Application made under Section 9 of the Arbitration Act and

upon its withdrawal whether the Application would be a factor to

be considered under Section 42 of the Arbitration and Conciliation

Act read with Section 2(1) (e) of the Arbitration Act. However, this

issue is not required to be determined, in view of the non-obstante

provision i.e. Section 18(4) of MSMED Act being applicable and

provides for jurisdiction to act as inter alia Arbitrator is determined

according to where the Petitioner as supplier is located i.e. at

Nashik. There is an error apparent on the face of the said order as

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it relies upon Clauses 63 and 64 of the arbitration agreement,

thereby obliterating the non-obstante statutory provision i.e.

Section 18 of the MSMED Act.

41. It is necessary to note that the decision of this Court in

Steel Authority of India Ltd. (Supra) has been set aside by the

Supreme Court in Gujarat State Civil Supplies Corporation Limited

(Supra), subsequent to the passing of the said Order. Although, Mr.

Pandian has placed reliance upon the decision of the learned

Single Judge of this Court in Sanjay Shendkar (Supra). However,

the learned Single Judge of this Court has in the said decision

considered the divergent opinions of two Judges of the Supreme

Court on the issue as to whether a Review Petition can be

entertained on the ground of subsequent overruling of a decision

of the Court and has made a request to the Chief Justice of India to

refer the divergent opinion to a larger Bench.

42. In view of the above finding of patent error

apparent on the face of the said Order and its requiring to be

reviewed, it is not necessary to place reliance on Gujarat State

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Civil Supplies Corporation Limited (Supra) for arriving at such a

finding.

43. Hence, the following order is passed:-

(i) The said order dated 15th May, 2020 passed in

Commercial Notice of Motion (L) No.2043 of 2019 in Commercial

Arbitration Petition (L) No.855 of 2018 is reviewed.

(ii) The Commercial Notice of Motion (L) No.2043 of 2019

is forthwith restored to the file of this Court.

(iii) The Commercial Arbitration Petition (L) No.855 of 2018

is transferred to the District Court at Nashik by allowing

Commercial Notice of Motion (L) No.2043 of 2019.

(iv) The Review Petition is accordingly disposed of.

(v) There shall be no order as to costs.

( R. I. CHAGLA J. )