Hill Crest Hotels And Resoirts Private ... vs Micro And Small Enterprises ...
2026 Latest Caselaw 2192 Bom

Bombay High Court

Hill Crest Hotels And Resoirts Private ... vs Micro And Small Enterprises ... on 27 February, 2026

Author: N. J. Jamadar

Bench: N. J. Jamadar

2026:BHC-AS:10308
                                                                        WP 1910-26.DOC

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO. 1910 OF 2026

               Hill Crest Hotels & Resorts
               Private Limited
               Formerly known as Hill Crest Resort and Spa
               Pvt. Ltd.
               Having registered Office Address at
               102, Wind Fall, Sahar Plaza, Near Chakala
               Metro Station JB Nagar, Andheri E
               Mumbai - 400 059.                                             ...Petitioner

                     Versus

               1. Micro and Small Enterprises
                  Facilitation Council, MMR Region,
                  Mumbai, Thr. Ex-Officio Chairperson.
                  Office of the Joint Director of Industries
                  Vikas Centre, 702, 7th Floor, Dr. C. G.
                  Gidvani Marg, Near Basant Theatre,
                  Chembur (East), Mumbai - 400074.

               2. Nashwin Electric Private Limited,
                  Through its Managing Director
                  Mr. Dennis Lobo,
                  Unit No. 505, Madhu Industrial Park,
                  Avadh Narayan Tiwari Marg,
                                      ___
                  Andheri (East), Bombay-400 069.                      ...Respondents _
               __________ _______ ____                                   ________
               Mr. Ashish Kamat, Sr. Advocate, a/w Mr. Rashmin Khandekar, Mr.
                     Pritesh Burad, Mr. Pranav Nair, Ms. Samita Vaviya & Mr. Kiran
                     Yadav, i/by Pritesh Burad Associates, for the Petitioner.
               Mr. Mayur Khandeparkar, Mr. Akash Loya, Mr. Pratik amin, Mr. Harsh
                     Agarwal i/by Pratik Amin Associates, for the Respondent No. 2.
               _____________________________________
                              CORAM               :    N. J. JAMADAR, J.
                              RESERVED ON           :          10th FEBRUARY 2026
                              PRONOUNCED ON :                  27th FEBRUARY 2026




               SAINATH, PA                              1/23
                                                        WP 1910-26.DOC

JUDGMENT:

1. This petition under Article 226 of the Constitution of India

assails the legality and validity of an award dated 27th June, 2022,

passed by the Micro and Small Enterprises Facilitation Council,

MMR Region, Mumbai (R-1) (MSEFC) in the Reference Petition

No. 309/2018, filed by the Respondent No. 2, purportedly under

Section 18 of the Micro, Small and Medium Enterprises

Development Act, 2006 ("the MSMED Act").

2. The petitioner is a Private Limited Company. It operates a

resort at village Khandpe, Dist. Raigad.

3. While the petitioner was constructing the resort, it had

appointed various contractors for the project. According to the

petitioner, the Respondent No. 2 entered into three electrical work

contracts with the petitioner, for the supply, erection, testing, and

commissioning of the electrical works on the site of the said

resort project, during the period 17th February to 12th May, 2015.

The Respondent No. 2 was, then not registered as a Micro, Small

and Medium Enterprise ("MSME") under the provisions of the

MSMED Act. On 07th November, 2015, the Respondent No. 2

came to be registered as MSME. On 31 st August 2017,

subsequent to the registration of Respondent No. 2 as MSME,

WP 1910-26.DOC

another contract was entered into for external infra work at the

resort project between the petitioner and Respondent No. 2.

4. In the wake of the disputes between the parties, regarding

the quality and quantity of the works executed by the Respondent

No. 2, the payment remained outstanding. The Respondent No. 2

filed a Reference before the Respondent No. 1 - MSEFC seeking

a sum of Rs. 4,05,66,762/- (Rupees Four Crores Five Lakhs Sixty

Six Thousand Seven Hundred and Sixty Two) comprising of the

principal amount of Rs. 3,58,54,215/- (Rupees Three Crores Fifty

Eight Lakhs Fifty Four Thousand Two Hundred and Fifteen) and

the interest thereon. Future interest from 01 st October, 2018 in

accordance with the provisions of Section 16 of the MSMED Act,

till the payment, was also sought.

5. After hearing the petitioner and Respondent No. 2, the

Respondent No. 1 - MSEFC passed an award on 27 th June,

2022, in terms of the prayers in the Reference.

6. Being aggrieved, the petitioner filed a petition, being

Commercial Arbitration Petition No. 469/2022, under Section 34

of the Arbitration and Conciliation Act, 1996, before this Court to

set aside the said award.

7. In the intervening period, the Respondent No. 2 initiated

Execution proceedings before the Executing Court at Panvel.

WP 1910-26.DOC

8. In Commercial Arbitration Petition No. 469/2022, this Court

declined to grant any interim relief as the petitioner had not

deposited 75% of the award amount in terms of Section 19 of the

MSMED Act. Pursuant to the directions passed by this Court in

Commercial Arbitration Petition No. 469/2022, the Executing

Court has determined the liability of the petitioner under the

Award at Rs. 13,99,19,998/- (Rupees Thirteen Crores Ninety

Nine Lakhs Nineteen Thousand Nine Hundred and Ninety Eight),

together with further interest in accordance with the provisions

contained in Section 16 of the MSMED Act, 2006 until realization.

9. As the Executing Court has passed an order allowing the

application of Respondent No. 2 for Police protection and service

of warrant of attachment by hand, the petitioner has invoked the

writ jurisdiction.

10. I have heard Mr. Ashish Kamat, the learned Senior

Advocate for the petitioner, and Mr. Mayur Khandeparkar, the

learned Counsel for the Respondent No. 2, at some length.

11. At the outset, the issues of maintainability and

entertainability of the petition were raised on behalf of the

Respondent No. 2.

12. Mr. Ashish Kamat, the learned Senior Advocate,

strenuously submitted that, the facts of the case are so gross and

WP 1910-26.DOC

the injustice likely to be caused to the petitioner is so patent and

irretrievable, that the writ Court would be justified in entertaining

the petition, despite the petitioner having invoked the remedy of

filing a petition to set aside the Award under Section 34 of the

Arbitration and Conciliation Act.

13. Amplifying this submission, Mr. Kamat would urge that, the

impugned award suffers from jurisdictional error on two counts.

First, the respondent No. 2 was not registered as MSME when

the first three contracts were entered into. Though the fourth

contract was executed after the registration of Respondent No. 2

as MSME, yet, a composite reference was made without any

bifurcation of the claims under the respective contracts. Thus, the

entire award is rendered a nullity, as it was passed by the

Respondent No. 1 without jurisdiction.

14. To this end, Mr. Kamat would urge that, the position is

settled by a line of decisions of the Supreme Court. Reliance was

placed on the judgments of the Supreme Court in the case of

Silpi Industries & Ors. Vs. Kerala State Road Transport

Corporation & Another1, Vaishno Enterprises Vs. Hamilton

Medical AG & Anr2.

1 (2021) 18 SCC 790 2 (2024) 12 SCC 214

WP 1910-26.DOC

15. Mr. Kamat submitted that, though a discordant note was

struck by a Bench of co-equal strength in the case of NBCC

(India) Ltd. Vs. State of West Bengal & Ors.3, it is well settled

that, the reference of a decision to a larger Bench does not dilute

the precedential authority of the referred judgment.

16. Second, the Respondent No. 1 - MSEFC could not have

entered into the adjudication of the dispute as it was beyond the

purview of the MSMED Act. The contracts in question are plainly

'works contracts.' It is settled law that MSMED Act does not

govern the works contracts. Thus, the award passed by the

Respondent No. 1 suffers from serious jurisdictional

incompetence. Reliance was placed on a judgment of a learned

Single Judge of this Court in the case of National Textile

Corporation Ltd. Vs. Elixir Engineering Pvt. Ltd. & Anr. 4,

wherein it was enunciated that the lack of jurisdiction in the

Facilitation Council to conduct the arbitration proceedings in

relation to a dispute arising out of a works contract rendered the

award patently illegal.

17. The challenge to the maintainability was sought to be met

by Mr. Kamat, by canvassing a two fold submission. One, the

decision in the case of India Glycols Ltd. & Anr. Vs. Micro and

3 (2025) 3 SCC 440 4 2023 SCC OnLine Bom 653

WP 1910-26.DOC

Small Enterprises Facilitation Council, Medchal - Malkajgiri

& Ors.5, wherein the Supreme Court cautioned against

entertaining a petition under Articles 226/227 of the Constitution

filed in order to obviate compliance with the requirement of pre-

deposit under Section 19, has been referred to a larger Bench by

another judgment of the Supreme Court in Tamil Nadu Cement

Corporation Ltd. Vs. Micro and Small Enterprises Facilitation

Council & Anr.6.

18. Two, emphasizing the plenary nature of the writ jurisdiction,

Mr. Kamat would urge, in a case where the writ court finds that,

the party is made to suffer an exorbitant payment under a

statutory provision bordering on impossibility of performance, the

writ court can intervene. Mr. Kamat would urge, in the facts of the

case, despite a substantive jurisdictional challenge to the award

having been raised by the petitioner, it is virtually rendered

remediless. In the petition under Section 34 of the Arbitration and

Conciliation Act, the prayers of the petitioner are not being

entertained for want of the pre-deposit. On the other hand, if the

petitioner is not heard in the exercise of the plenary writ

jurisdiction, the petitioner would suffer irretrievable prejudice. In

such a situation, though the petitioner has availed a statutory

remedy yet for want of the pre-deposit, the statutory remedy

5 (2025) 5 SCC 780 6 2025 4 SCC 1

WP 1910-26.DOC

cannot be said to be efficacious and, therefore, this Court would

be justified in exercising the writ jurisdiction.

19. In opposition to this, Mr. Khandeparkar the learned

Counsel for Respondent No. 2, would submit that, the petition

does not deserve to be entertained for a multitude of reasons; the

conduct of the petitioner being the most egregious.

20. Elaborating the challenge to the entertainability of the

petition, Mr. Khandeparkar would urge that, the legal position as

regards the exhaustion of alternate remedy is well-nigh settled.

However, in the case at hand, rather than maintainability it is the

entertainability of the petition, given the attendant circumstances

and the conduct of the petitioner, that requires consideration. The

award was passed on 27th June, 2022. The petitioner filed the

petition under Section 34 of the Arbitration and Conciliation Act

on 20 October 2022. No effort was made to move the said

petition and seek interim relief. It is only after the Executing Court

passed orders towards the execution of the award, an abortive

attempt was made to move interim application.

21. By an order dated 16th January, 2026 in Commercial

Arbitration Petition No. 469/2022, this Court categorically

declined to entertain the prayer for interim relief observing that,

the requirement of deposit under Section 19 of the MSMED Act,

being mandatory, no indulgence can be shown to the petitioner.

Thereafter, the instant petition was filed on 4 th February, 2026,

WP 1910-26.DOC

while still maintaining the challenge to the award in the petition

under Section 34 of the Arbitration and Conciliation Act, 1996.

22. Mr. Khandeparkar, further submitted with tenacity that, the

petition deserves to be dismissed on the ground of delay. It was

urged that, though there is no period of limitation for filing writ

petition, yet, where an alternate remedy exists which is required

to be availed within the prescribed period of limitation, that

limitation would be a measure for determining the reasonable

time to entertain the petition under Articles 226 and 227 of the

Constitution of India.

23. Reliance was placed by Mr. Khandeparkar on the

judgments in the cases of Rikhab Chand Jain Vs. Union of

India & Ors7., Uttar Pradesh Power Corporation Ltd. & Ors.

Vs. Ram Gopal8, and a Division Bench judgment in the case of

Pramod Vasantrao Deshmukh & Ors. Vs. State of

Maharashtra9.

24. Mr. Khandeparkar laid emphasis on the fact that, by this

petition, the petitioner is taking a chance. The petitioner continues

to maintain the challenge to the award under Section 34 of the

Arbitration and Conciliation Act. In this petition no statement has

been made that, the petitioner would not pursue the said

challenge. In such circumstances, the instant petition, which has

7 2025 SCC OnLine SC 2510 8 (2021) 13 SCC 225 9 2025 SCC OnLine Bom 3473

WP 1910-26.DOC

been filed with the only objective of putting hindrances in the

execution of the award, does not deserve to be entertained.

25. Mr. Khandeparkar would urge that, the Reference of the

judgment in the case of India Glycols Ltd. (supra), to a larger

Bench does not alter the fundamental principle that the exercise

of writ jurisdiction is discretionary and subject to the rule of

exhausting the statutory remedy.

26. On the aspect of the Respondent No. 2 not being

registered as MSME when the first three contracts were

executed, Mr. Khandeparkar would urge that, the decision of the

Supreme Court in the case of NBCC (India) Ltd. (supra), is a

complete answer to the challenge sought to be mounted on

behalf of the petitioner. Mr. Khandeparkar placed special

emphasis on the fact that, in NBCC (India) Ltd. (supra), the

Supreme Court enunciated in clear and explicit terms that, the

earlier decisions in Silpi Industries (supra), and Vaishno

Enterprises (supra) do not lay down the correct law, yet, to

ensure clarity and certainty about the applicable precedents, a

reference has been made to a three-Judge Bench.

27. Likewise, the question as to whether the contracts in

question, are 'work contracts' is a question of fact and can be

properly considered in the petition under Section 34 of the

WP 1910-26.DOC

Arbitration and Conciliation Act. Therefore, the petition does not

deserve to be entertained, submitted Mr. Khandeparkar.

28. To start with the tenability of the writ petition against the

award passed by the MSEFC under Section 18 of the MSMED

Act. The availability of an efficacious alternate remedy is self-

imposed restraint on the exercise of the writ jurisdiction by the

High Court. Normally, the exceptions to the rule of efficacious

alternate remedy arise where the writ petition has been filed for

the enforcement of a fundamental right; there has been a

violation of principle of natural justice; the impugned order or

proceedings are wholly without jurisdiction or vires of the

legislation under which the orders have been purportedly passed

itself is challenged. When a right is created by a statute which

has also prescribed the remedy or procedure for enforcing such

right or liability, resort must be had to that particular statutory

remedy before invoking extra-ordinary writ jurisdiction under

Article 226 of the Constitution. This rule of exhaustion of the

statutory remedy is a rule of policy, convenience and discretion.

29. In the context of the controversy at hand, it may be

apposite to make a reference to the three-Judge Bench judgment

in the cases of India Glycols Ltd. (supra), and the subsequent

decision in the case of Tamil Nadu Cement Corporation Ltd.

(supra). In India Glycols Ltd. (supra), the Supreme Court

WP 1910-26.DOC

enunciated in clear and explicit terms that, Section 18 of the Act,

2006 provides for recourse to the statutory remedy for

challenging an award under 1996 Act. That recourse to the

remedy is subject to the discipline of complying with the

provisions of Section 19. Thus, entertaining a petition under

Articles 226/227 of the Constitution in order to obviate

compliance with the requirement of pre-deposit under Section 19

would defeat the object and purpose of the special enactment

which has been legislated upon by Parliament.

30. In the case of Tamil Nadu Cements Corporation Ltd.

(supra), another three Judge Bench of the Supreme Court

expressed its reservations on the aforesaid dictum in the case of

India Glycols Ltd. and Anr. (supra). It was observed that

whether there would be an absolute and complete bar to invoke

writ jurisdiction under Article 226 of the Constitution, even in

exceptional and rare cases where fairness, equity and justice

may warrant the exercise of writ jurisdiction, warranted

consideration. Thus, a reference was made to a larger Bench of

five Judges on the following questions :

"64. In the light of the aforesaid decisions, we deem it appropriate to refer the following questions raised in the present appeal to a larger Bench of five Judges, namely :

64.1(i) Whether the ratio in India Glycols (supra) that a writ petition could never be entertained against any order/award of MSEFC, completely

WP 1910-26.DOC

bars or prohibits maintainability of the writ petition before the High Court ?

64.2(ii) If the bar/prohibition is not absolute, when and under what circumstances will the principle / restriction of adequate alternative remedy not apply ?

64.3(iii) Whether the members of MSEFC who undertake conciliation proceedings, upon failure, can themselves act as arbitrators of the Arbitral Tribunal in terms of Section 18 of the MSEMD Act read with Section 80 of the A & C Act ?

The first and second question will subsume the question of when and in what situation a writ petition can be entertained against an order / award passed by MSEFC acting as an Arbitral Tribunal or conciliator."

31. The reference on the questions extracted above, would

indicate that the reference in question No.(i) is essentially on the

point as to whether there is an absolute bar for the entertainability

of the Petition in the face of the statutory regime under Sections

18 and 19 of the MSMED Act. Thus, caution administered by the

Supreme Court in the case of India Glycols Ltd. (supra) itself,

cannot be said to be under further judicial scrutiny.

32. In any event, the Petitioner would be required to surmount

an impediment of persuading the Court to make an exception to

the rule of compelling a party to exhaust statutory remedy as a

matter of policy, convenience and discretion.

WP 1910-26.DOC

33. This propels me to the distinction, forcefully canvassed by

Mr. Khandeparkar, in the maintainability and entertainability of the

Petition. In the case of Godrej Sara Lee Ltd. V/s. Excise and

Taxation Officer-cum-Assessing Authority and Ors.10, the

Supreme Court reiterated that "entertainability" and

"maintainability" of a writ petition are distinct concepts. The fine

but real distinction between the two ought not to be lost sight of.

The objection as to "maintainability" goes to the root of the matter

and if such objection were found to be of substance, the courts

would be rendered incapable of even receiving the lis for

adjudication. On the other hand, the question of "entertainability"

is entirely within the realm of discretion of the High Courts, writ

remedy being discretionary. A writ petition despite being

maintainable may not be entertained by the High Court, despite

the Petitioner setting up a sound legal point, if grant of the

claimed relief would not further public interest.

34. Before adverting to the two grounds, namely, the conduct

and delay pressed into service on behalf of Respondent No.2 to

the entertainability of the Petition, I deem it appropriate to delve

into the foundational challenges to the jurisdiction of MSEFC

(R1), lest the Petition may not be pre-judged.

35. The first ground of attack was the non-registration of the

Respondent No.2 as MSEE before execution of the first three

10 2023 SCC Online SC 95

WP 1910-26.DOC

contracts. On facts, there does not seem to be much

controversy. Rather the very necessity of the registration of the

Petitioner as MSME under Section 18 of the Act, 2006 was at the

heart of the debate at the bar.

36. Mr. Kamat placed reliance on the judgment of the Supreme

Court in the case of Silpi Industries and Ors. (supra), wherein a

two judge Bench of the Supreme Court observed that, to seek

benefit of the provisions under MSMED Act, the seller should

have registered under the provisions of the Act, as on the date of

entering into the contract. In any event, for the supplies pursuant

to the contract made before the registration of the unit under

provisions of the MSMED Act, no benefit can be sought by such

entity, as contemplated under MSMED Act.

37. The decision in Silpi Industries and Ors. (supra), was

followed by another two Judge Bench in the case of Vaishno

Enterprises (supra), wherein the legal position was enunciated

as under :

"20. Considering the relevant provisions of the MSME Act more particularly Section 2(n) read with Section 8 of the MSME Act, the provisions of the MSME Act shall be applicable in case of supplier who has filed a memorandum with the authority referred to in subsection (1) of Section

8. Therefore, the supplier has to be a micro or small enterprise registered as MSME, registered with any of the authority 13 mentioned in

WP 1910-26.DOC

subsection (1) of Section 8 and Section 2(n) of the MSME Act.

21. It is admitted position that in the present case the appellant is registered as MSME only on 28.08.2020. Therefore, when the contract was entered into the appellant was not MSME and therefore the parties would not be governed by the MSME Act and the parties shall be governed by the laws of India applicable and/or prevailing at the time of execution of the contract. If that be so the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent no.1, in exercise of powers under Section 18 of the MSME Act."

38. In contrast, in the case of NBCC (India) Ltd. (supra), a

Bench of co-equal strength considered the proposition

enunciated in Silpi Industries and Ors. (supra) and a line of

decisions that followed the dictum in the case of Silpi Industries

and Ors. (supra), and after an elaborate analysis, under the

caption "whether the registration is necessary pre-condition to

refer the dispute under Section 18 of the MSMED Act", observed

that, in the case of Silpi Industries and Ors. (supra), the

question as to whether the enterprises is disabled from seeking a

reference by filing memorandum under Section 8 of the Act,

never arose for consideration. More importantly, in the case of

Silpi Industries and Ors. (supra), the Supreme Court did not

examine any provisions of the Act, and, their implications on the

right to seek reference under Section 18 of the Act.

WP 1910-26.DOC

39. Dealing with the subsequent judgments as well, the

Supreme Court concluded that, though it was possible for the

Supreme Court to follow the precedents referred to in paragraphs

53 and 54 (of the said judgment) to arrive at the conclusion that

the judgments in Silpi Industries and Ors. (supra), Gujarat

State Civil Supplies Corporation Ltd. V/s. Mahakali Foods (P)

Ltd.11, coupled with the subsequent orders in Vaishno

Enterprises (supra), and Nitesh Estate Ltd. V/s. Outsourcing

Xperts12 cannot be construed to be the binding precedents on the

issue that has arisen for consideration before the Supreme Court

taking into account the compelling need to ensure clarity and

certainty about the applicable precedents on the subject, the

Supreme Court deemed it appropriate to refer the said Appeal to

a three-Judge Bench.

40. Indeed, the consideration in NBCC (India) Ltd. (supra), on

the question of registration as MSME to be eligible to make a

reference under Section 18 of the Act, as elaborate, textual and

contextual. Under Section 8 of the MSMED Act, the registration

by filing a memorandum is plainly discretionary. This court

considers it appropriate not to delve more on this issue.

41. The second ground of challenge was premised on the

underlying contracts being the work contracts, and, thus, beyond

11 (2023) 6 SCC 401 12 (2024) 12 SCC 221

WP 1910-26.DOC

the remit of the resolution under the regime of MSMED Act.

Taking the Court through the contract formed by the letters dated

17 February 2014, 22 February 2015 and 12 May 2015, Mr.

Kamat would urge, the nature of the work which was undertaken,

squarely falls within the ambit of works contract. The transaction

was not that of pure supply of goods and/or services. The

Petitioner, thus, would not fall within the definition of supplier

under Section 2(n) read with 2(e) of the MSMED Act, 2006.

42. A strong reliance was placed on the decision in the case of

National Textile Corporation Ltd. (supra), wherein the learned

Single Judge of this court had enunciated that, as the contract

was in the nature of a works contract, the provisions of MSMED

Act, could not have been invoked and, therefore, the impugned

award therein were rendered without jurisdiction. It is pertinent to

note that the said findings were recorded in a Petition under

Section 34 of the Arbitration and Conciliation Act, 1996.

43. What constitutes the works contract is not free from

difficulties and has engaged attention of the Courts. Often the

question whether a particular contract is the works contract is

rooted in facts. To determine the character of the contract,

whether it is works contract or contract for supply of goods or

rendering services or a combination of both, which may fall within

the definition of "enterprise" under Section 2(e) of the MSMED

Act, an investigation into facts would be warranted. It may be

WP 1910-26.DOC

hazardous to record a finding on the basis of apparent tenor of

the document.

44. In the case of Larsen and Toubro Ltd. and Anr. V/s.

State of Karnataka and Anr.13, a three-Judge Bench of the

Supreme Court enunciated that the determination as to whether

the contract involved in a transaction constitutes a contract of

sale or a contract of work or service depends in each case upon

its facts and circumstances. Mere passing of property in article or

commodity during the course of the performance of the

transaction does not render it a transaction of sale.

45. A reference was made to the earlier decision in the case of

STO v/s. B.C.Kame14, wherein the Supreme Court has observed

that, determination of the question whether a contract is a

contract for "work and labour" or a contract for "sale" was not free

from difficulty, particularly when the contract is a composite one.

46. A useful reference can also be made to another three-

Judge Bench judgment in the case of Bhaven Construction V/s.

Executive Engineer, Sardar Sarovar Narmada Nigam Ltd. and

Anr.15 wherein the context of the provisions contained in Section

2(k) of the Gujarat Public Works Contract Disputes Arbitration

Tribunal Act, 1992, which defines the "works contract", the

Supreme Court observed that the question as to whether the

13 (2014) 1 SCC 708 14 (1977) 1 SCC 634 15 (2022) 1 SCC 75

WP 1910-26.DOC

contract which is composite in nature, falls within the ambit of a

works contract under Section 2(k) of the said Act, 1992 is the

question that requires contractual interpretation, and is a matter

of evidence, especially when both parties have taken

contradictory stands regarding this issue. It was further observed

that, it is settled law that the interpretation of contracts in such

cases shall generally not be done in the writ jurisdiction. Thus,

the mere fact that the Gujarat Act, 1992 might apply may not be

sufficient for the writ courts to entertain the plea of Respondent

No.1 to challenge the ruling of the arbitrator under Section 16 of

the Arbitration Act.

47. The aforesaid being the position in law, this Court is not

inclined to accept the invitation of Mr. Kamat to delve into the

nature of the contract so as to record a finding of fact in regard to

the nature of the contract between the Petitioner and Respondent

No.2 and then rule, whether MSEFC had no jurisdiction to pass

the impugned award. It is more so for the reason that, the

Petitioner has already availed a statutory remedy by filing a

Petition under Section 34 of the Act, 1996 to set aside the

impugned award. All these questions can be legitimately

examined in the said Petition.

48. This leads me to the aspect of conduct of the Petitioner

and the delay in invoking the writ jurisdiction. First and foremost,

the Petitioner has already filed a Petition seeking to set aside the

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impugned award way back in the year 2022. Prima facie, this

Court finds substance in the submission of Mr. Khandeparkar that

the said Petition was sought to be moved for interim reliefs only

after orders were passed in the execution proceedings.

49. What accentuates the situation is the fact that, during the

course of the submissions before this Court, when an objection

was raised, a submission was canvassed on behalf of the

Petitioner that the Petitioner would withdraw the said Petition

under Section 34 and pursue the writ petition. After this Petition

was heard, an adjournment was sought in Comm. Arbitration

Petition No.469 of 2022. At that stage, when an objection was

raised on behalf of the Respondent No.2, the co-ordinate Bench

taking up Commercial Arbitration Petition was informed that the

following statement was made on behalf of the Petitioner before

this Court (as recorded in the order dated 13 February 2026 in

Comm. Arbitration Petition No.469 of 2022) :

"If this Court entertains the Writ Petition, the Petitioner would not press the Arbitration Petition under section 34 of the Arbitration and Conciliation Act, 1996 and would withdraw the same."

50. Plainly, the Petitioner has been invoking simultaneous

remedies before two forums. The case at hand is not one of not

availing the alternate statutory remedy. But that of having availed

the said statutory remedy, the Petitioner has invoked the writ

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Jurisdiction keeping in abeyance the statutory remedy as the

statute warrants pre-deposit. Such a course cannot be

countenanced, especially when the statutory remedy is made

conditional upon the pre-deposit which is not an unusual

legislative mechanism.

51. The aspect of delay also flows from keeping statutory

remedy in a state of hibernation after having availed the same. In

effect, the writ jurisdiction is invoked after almost three years and

eight months of the passing of the award. This delay is required

to be considered in conjunction with the reluctance to pursue the

statutory remedy as the Petitioner perceives the statutory remedy

onerous.

52. In the case of Rikhab Chand Jain (supra), the Supreme

Court enunciated the legal position as under :

"13. Although there is no period of limitation for invoking the writ jurisdiction of a High Court under Article 226, all that the courts insist is invocation of its jurisdiction with utmost expedition and, at any rate, within a "reasonable period". What would constitute "reasonable period" cannot be put in a straight-jacket, and it must invariably depend on the facts and circumstances of each particular case. Nonetheless, the period of limitation prescribed by an enactment for availing the alternative remedy AIR 1961 SC 1506 provided thereunder in certain cases does provide indication as to what should be the "reasonable period"

within which the writ jurisdiction has to be invoked.

WP 1910-26.DOC

53. The conspectus of aforesaid consideration is that the

Petitioner has made an endeavour to invoke the writ jurisdiction

as a buffer for an unfavourable outcome in Comm. Arbitration

Petition No.469 of 2022, consequent to the failure to make the

pre-deposit. The Writ Petition, therefore, does not deserve to be

entertained.

54. Hence, the following order:-

::ORDER::

i] The Writ Petition stands dismissed with costs.

                                                                         [N. J. JAMADAR, J.]




Signed by: S.S.Phadke       SAINATH, PA                          23/23
Designation: PS To Honourable Judge
Date: 27/02/2026 21:47:27