Gujarat High Court
Ducon Consulting Engineers vs Gujarat Tea Processors And Packers Ltd on 6 November, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1112/2025 ORDER DATED: 06/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1112 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 9460 of 2025
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DUCON CONSULTING ENGINEERS
Versus
GUJARAT TEA PROCESSORS AND PACKERS LTD. & ANR.
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Appearance:
JURIS LEGAL PRACTITIONERS(17818) for the Appellant(s) No. 1
MR. MAULIK G.NANAVATI, ADVOCATE FOR MR.HARSHAD O
JOSHI(11428) for the Appellant(s) No. 1
MR.MIHIR JOSHI, SENIOR ADVOCATE WITH ISA HAKIM,ADVOCATE
AND RAJ SHAH, ADVOCATE FOR GANDHI LAW ASSOCIATES(12275) for
the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 06/11/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. Having heard learned Counsels for the parties and
perused the record. Pertinent as to note that the present intra
Court appeal has been filed against an interlocutary order
dated 22.07.2025 staying the further proceedings of an
application filed before the Micro and Small Enterprises
Facilitation Council (MSME Facilitation Council),
Ahmedabad for adjudication of the dispute.
2. The learned Single Judge has proceeded to stay the
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proceedings drawn before the MSME Facilitation Council,
taking note of the decision of the Apex Court in the case of
Gujarat State Civil Supplies Corporation Limited Vs.
Mahakali Food Private Limited (Unit 2) and Anr. [(2023)
6 SCC 401] and has held that Section 18 of the Micro, Small
and Medium Enterprises Development Act, 2006 has an
overriding effect over the general provisions of the Arbitration
and Conciliation Act, 1996.
3. Mr. Maulik G.Nanavati, learned advocate appearing for
the appellant has drawn the attention of this Court to the
recent decision of the Division Bench of the Apex Court
dated 10.01.2025 in the case of NBCC (India) Ltd. Vs.
State of West Bengal and others reported in (2025) 3 SCC
440 to submit that while deciding the issue as to whether an
MSME cannot make a reference to the Facilitation Council for
dispute resolution under Section 18 of the MEME Act, 2002 if
it is not registered under Section 8 of the MSME Act, 2002
before the execution of the contract with the buyer, the Apex
Court has expressed an opinion that the said issue had not
been adjudicated in Mahakali Foods (Supra) or in Shilpy
Industries reported in (2021) 18 SCC 790. It is submitted
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that the Apex Court in NBCC (India) Ltd. (Supra) has
formed an opinion that both the previous judgments Shilpy
Industries (Supra) and Mahakali Foods (Supra) are not
applicable on the issue of maintainability of reference under
Section 18 of the MSME Act by the Facilitation Council, at the
instance of an entity which is not a 'supplier' registered
under Section 8 of the MSME Act, 2002.
4. Taking note of this decision and other decisions of the
Delhi High Court relied by the learned Counsel for the
appellant, suffice it to note that the issues raised before us
can very well be agitated before the learned Single Judge.
The appellant has approached this Court without filing any
application seeking for vacation of the interim protection
granted by the order impugned nor has filed any counter
affidavit in the writ petition.
5. We, therefore, do not find any good ground to deliberate
on the issue at this stage. Liberty is granted to the learned
Counsel for the appellant to file a proper application before
the learned Single Judge along with the affidavit to bring the
correct and complete facts of the case on record. The question
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as to the maintainability of the reference taking note of the
factual aspects of the matter and the law laid down by the
Apex Court can very well be adjudicated by the learned Single
Judge.
6. We, therefore, dispose of the present appeal relegating
the matter to the learned Single Judge with the only
observation that the learned Single Judge be requested to
decide the writ petition itself on merits after the response of
the appellant-respondent is received. We say so keeping in
mind that the issue has arisen at the pre-arbitration stage in
a proceeding initiated under the MSME Act, 2002. It is
expected that the Counsels for both the parties will co-
operate in the early disposal of the writ petition.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BINA SHAH
