Rajasthan High Court - Jodhpur

M/S Mansingh Hotels And Resorts ... vs Rajasthan Micro, Small And Medium ... on 4 October, 2023

Bench: Nupur Bhati

[2023:RJ-JD:31339]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 11648/2021

M/s    Mansingh      Hotels     And     Resorts       Ltd.,       (Cin   U55101Rj19
70Plc001294), Having Its Registered Office At Sansar Chandra
Road, Jaipur (Raj.)- 302001 Through Its Director And Authorised
Representative Shri Hh Rupani.
                                                                         ----Petitioner
                                      Versus
1.       Rajasthan     Micro,       Small        And       Medium         Enterprises
         Facilitation Council, Jodhpur, Government Of Rajasthan,
         New Power House Road, Jodhpur (Raj.) Having E-Mail Id
         [email protected].
2.       Eagle Intelligence Securitas Services Private Limited, Jeet
         Apartament, Air Force Road, Ratanada, Jodhpur 342001
         Having        E-Mail            Id         [email protected]               And
         [email protected].
                                                                    ----Respondents


For Petitioner(s)           :    Mr. Anant Kasliwal, Sr. Adv., assisted
                                 by Mr. Shubhankar Johri
For Respondent(s)           :    Mr. Deelip Kawadia with
                                 Ms. Nidhi Singhvi



               HON'BLE DR. JUSTICE NUPUR BHATI

                                JUDGMENT

Reserved on:                          < >                                15/09/2023
Pronounced on:                         < >                               04/10/2023

1. Though the matter was listed under 'Orders' category, but at

the joint request of the counsels for the parties, the matter is

finally heard and decided today itself.

2. The present writ petition is filed under Articles 226 and 227 of

the Constitution of India, claiming following reliefs:

'It is most respectfully and humbly prayed that:

[2023:RJ-JD:31339] (2 of 22) [CW-11648/2021]

1. this writ petition may kindly be admitted and allowed and decision taken dated 15.07.2021 (Annexure 8) as issued by Respondent No. 1 be quashed.

2. Respondent ought be estopped from committing any such future acts and be directed to conduct the proceedings with utmost fairness and if deemed fit, to prepare and submit a proper report to the parties before referring the dispute to arbitration, if at all;

3. the cost of this writ petition may also kindly be awarded in favour of the Petitioner; and

4. Any other appropriate order or direction which this Hon'ble Court may consider just and proper in the facts and circumstances of the case may also kindly be passed in favour of the humble petitioner Hotel.'

3. The essential factual background of the case is that the

Petitioner is a company within the tourism sector, with presence in

multiple states across India, and has been engaged in business

operations for over five decades. The Petitioner-Company and

Eagle Intelligence Securities Services Pvt. Ltd. (hereinafter

referred to as 'Respondent No. 2') have periodically conducted

business together, with the Petitioner hotel making payments

exceeding Rs. 10 Lakhs at various times to Respondent No. 2 for

providing security services.

4. The Petitioner allotted new work to Respondnet No. 2 in respect

of petitioner's hotel property in Jodhpur. However, the payment

was not made to Respondent No. 2 citing the reason that the

services of the Respondent No. 2 did not meet the standards of

the Petitioner company and a concern regarding the quality of

services was also raised by Petitioner.

[2023:RJ-JD:31339] (3 of 22) [CW-11648/2021]

5. Thereafter, the Respondent No 2 filed a complaint before the

Rajasthan Micro, Small and Medium Enterprises Facilitation Council

(hereinafter referred to as 'Respondent No. 1'), Respondent No.1,

bearing no. RJ/22/S/RIS/01292 and serial NO F9.(01292)RMSEFC/

2019/ 8624-8625, regarding the aforesaid non-payment.

6. During the pendency of the complaint which was filed by

Respondent No.2, the Respondent No.1 had issued several notices

fixing dates in the matter with the direction to Petitioner to appear

in person. In the notice dated 08.04.2021 (Annexure-5), the

Respondent No. 1 informed the petitioner that in the event of non-

appearance, an award under the Arbitration and Conciliation Act,

1996 (hereinafter referred to as 'the Act of 1996') would be

passed. Then the Respondent No.1 issued a notice dated

25.06.2021 (Annexure-6), fixing a meeting for conciliation

between the parties on 05.07.2021.

7. In furtherance of notice dated 25.06.2021, Respondent No.1

conducted a meeting on 05.07.2021. The Petitioner through its

counsels requested for a link for video conferencing through e-Mail

(Annexure-7).

8. Thereafter, the petitioner received an e-Mail dated 15.07.2021

(Annexure-8) from Respondent No. 1, which contained two

screenshots, i.e., pages 1 and 2 respectively of the impugned

decision taken by Respondent No.1 in its meeting dated

05.07.2021.

9. Thus, being aggrieved of the order dated 15.07.2021

(Annexure-8) by Respondent No. 1, the petitioner has preferred

this writ petition.

[2023:RJ-JD:31339] (4 of 22) [CW-11648/2021]

10. The learned counsel for the respondents while raising

preliminary objections submitted:

(A) That the writ petition is not maintainable on the ground that

there is an alternate remedy available to the petitioner under

section 18 and 19 of the Act of 2006, which are reproduced

hereunder:

'18. Reference to Micro and Small Enterprises Facilitation Council.-

(1) 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.

(2) On receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act.

(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 it to any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration 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.

(4) Notwithstanding anything contained in any other law for the time being in force, the Micro and Small Enterprises

[2023:RJ-JD:31339] (5 of 22) [CW-11648/2021]

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.

(5) Every reference made under this section shall be decided within a period of ninety days from the date of making such a reference.

19. Application for setting aside decree, award or order.-No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with it seventy-five per cent. of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court: Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of the amount deposited shall be paid to the supplier, as it considers reasonable under the circumstances of the case, subject to such conditions as it deems necessary to impose.'

and a conjoint reading of Sections 18 and 19 of the Act of 2006

and Section 2 (4) of the Act of 1996 makes it clear that provisions

of Part I of the Act of 1996 are applicable to every arbitration

under any other enactment. In the Act of 1996, the grounds for

challenge in Section 12 and the challenge of the procedure in

Section 13, the competence of arbitral tribunal to rule on its

jurisdiction in Section 16, conduct of arbitral proceedings in

Chapter V, making of arbitral award and termination of

proceedings in Chapter VI, recourse against arbitral award in

[2023:RJ-JD:31339] (6 of 22) [CW-11648/2021]

Chapter VII and finality and enforcement of arbitral awards in

Chapter VIII are contained in Part L and hence, if the petitioner

has any grievance against the arbitral award, the only remedy that

is available to it is under Section 34 of the Act of 1996. The

petitioner is aware of this remedy, but in view of the precondition

of deposit of 75% of the awarded amount as contained in Section

19 of the Act of 2006, the petitioner, in order to avoid the same,

filed this writ petition.

(B) The provisions under the Act of 2006 are self contained and

when a self-contained statute is available in a particular situation

as an alternate remedy, invocation of the extraordinary jurisdiction

of this Hon'ble Court cannot be sustained.

deposited 75% of the awarded amount, which is the mandate

under Section 34 of the Act of 1996 and without doing so, the

petitioner cannot even avail the alternate remedy under the Act of

1996.

11. The learned counsel for the respondent while raising

preliminary objections placed reliance on the judgment dated

20.01.2020 passed by the Hon'ble High Court of Madras in Gulf

Oil Corporation v. Andhra Pradesh Micro and Small

Enterprises Facilitation Council and Ors., the relevant portion

of which is reproduced hereunder:

'35. Thus, in view of the law declared by the Full Bench of the Apex Court in Sterling Industries v. Jayprakash Associates Limited and others MANU/SC/1229/2019 : AIR 2019 SC 3558 (referred supra) and Division" Bench of the Supreme Court in Goodyear India Limited v. Norton Intech

[2023:RJ-JD:31339] (7 of 22) [CW-11648/2021]

Rubbers (P) Ltd. and others MANU/SC/1215/2012 : 2012 (2) CTC 829 (referred supra), which are binding precedents on the Courts, a writ petition against an Award passed by Arbitral Tribunal is not maintainable under Article 226 of the Constitution of India. But, the learned Single Judge of the High Court in the judgments referred above did not take note of the principle laid down by the S.B.P. and Co. v. Patel Engineering Ltd. MANU/SC/1787/2005 : AIR 2006 SC 450 : 2005 (6) ALT 37.1 (DN SC) (referred supra). Even in the Full Bench judgment of the Apex Court, the issue is identical, but not based on the jurisdictional issue. When the judgment is under the same enactment, the Full Bench judgment will have precedence over the judgments of Division Bench of learned Single Judge of High Court of Judicature of Andhra Pradesh. Therefore, the law declared the Apex Court is a binding precedent on this Court.

45. As per the law declared in long line of perspective pronouncements, the jurisdiction of this Court under Article 226 of Constitution of India, after commencement of arbitration proceedings, is limited and more particularly against an award passed under the Act, as such the Court cannot exercise power under Article 226 of Constitution of India to issue any order in this writ petition.'

12. The learned counsel for the respondents while raising the

preliminary objections further placed reliance upon the judgement

dated 15.03.2012 passed by Hon'ble Apex Court in Goodyear

India Ltd. v. Norton Intech Rubbers (P) Ltd. And Ors., the

relevant portion of which is reproduced hereunder:

'11. Having considered the submissions made, both on behalf of the Petitioner and on behalf of the Respondents, we do not see any reason to interfere with the views expressed, both by the learned Single Judge, as also the Division Bench with regard to Section 19 of the 2006 Act. It may not be out of place to mention that the provisions of Section 19 of the 2006 Act, had been challenged before the

[2023:RJ-JD:31339] (8 of 22) [CW-11648/2021]

Kerala High Court in K.S.R.T.C. v. Union of India, MANU/KE/ 0864/2009 : Indlaw Ker 666, where the same submissions were negated and, subsequently, the matter also came up to this Court, when the Special Leave Petitions were dismissed, with leave to make the pre-deposit in the cases involved, within an extended period often weeks.

12. We may also indicate that the expression "in the manner directed by such Court" would, in our view, indicate the discretion given to the Court to allow the pre-deposit to be made, if felt necessary, in installments.

13. Having regard to the above, we are not inclined to entertain the Special Leave Petitions filed by M/s. Goodyear India Limited and the same are, accordingly, dismissed. However, in keeping with the other decisions rendered in these cases, we extend the time for pre-deposit by the Petitioner, by a further period of twelve weeks. If such deposit is made, the Appeal shall be treated to be in order and, thereafter, the same may be proceeded with. As far as the two Special Leave Petitions filed by M/s. Norton Intech Rubbers (P) Limited and another, are concerned, having regard to the decision in these two Special Leave Petitions, nothing survives therein and the same are disposed of, however, with leave to the Special Leave Petitioner to take whatever objections, that may have been taken in these Special Leave Petitions, at the time of hearing of the Appeal.'

13. The learned counsel for the respondent while raising

preliminary objections also placed reliance on the judgement

dated 01.07.2014 passed by Hon'ble High Court of Andhra

Pradesh and Telangana in Ballapur Industries Ltd. v. Andhra

Pradesh Micro and Small Enterprises Facilitation Council &

Ors., the relevant portion of which is reproduced hereunder:

'15. As rightly contended by the learned counsel for the second respondent, the Hon'ble Supreme Court in Goodyear India Ltd. v. Norton Intech Rubbers (P) Ltd.,

[2023:RJ-JD:31339] (9 of 22) [CW-11648/2021]

MANU/SC/1215/2012 : (2012) 6 SCC 345 held that the court has no discretion to either waive or reduce the amount of 75% of award as a pre-deposit for filing of application/appeal under the MSMED Act. The Hon'ble Supreme Court in Modern Industries v. SAIL, MANU/SC/0251/2010 : (2010) 5 SCC 44 also held in the context of the Act of 1993 that though the Act of 1993 provides a statutory remedy of appeal against the award, the buyer in that case availing the extraordinary jurisdiction under Article 226 of the Constitution bypassing statutory remedy was held to be not justified.'

14. The learned senior counsel for the petitioner while replying to

the preliminary objections submitted that the at the time of filing

the complaint, Respondent No. 2 was not registered as Micro,

Small and Medium Enterprise under the Act of 2006 and hence,

the said Act of 2006 does not apply and the decision dated

15.07.2021 passed by Respondent No. 1 is without jurisdiction

and deserves to be quashed on this ground alone.

15. The learned senior counsel for the petitioner while replying to

the preliminary objections further submitted that the writ petition

is maintainable on the ground that the impugned award has been

passed by the respondents without having jurisdiction. The

Respondent No. 1 have not adhered to the principles of natural

justice and further the impugned order manifestly suffers from

patent illegality, thus, the alternative and statutory remedy

available under Section 18 & 19 of the Act of 2006 cannot be said

to be a bar in order to invoke writ jurisdiction under Article 226 of

the Constitution of India.

[2023:RJ-JD:31339] (10 of 22) [CW-11648/2021]

16. The learned counsel for the respondent in rebuttal submitted

that the contention of the petitioner that the pre-requisite of

conducting conciliation proceedings has not been followed by the

respondents is absolutely false and baseless, as a bare look at

order dated 05.07.2021 reflects that conciliation proceedings have

duly been carried out.

17. The learned senior counsel for the petitioner submitted:

(A) That the decision dated 15.07.2021 passed by Respondent

No. 1 is illegal, arbitrary, perverse and also against the law as the

petitioner was not afforded the opportunity of being heard in the

conciliation proceedings which took place on 05.07.2021 despite

the petitioner being requesting the Video Conferencing link

through e-Mail, it was not provided to the petitioner and it is the

violation of the principles of the natural justice and thus, the

present writ petition is maintainable.

(B) That the office of Respondent No. 1's office conveyed to the

petitioner that the matter will not be heard on 05.07.2021 and

next date will be informed to the Petitioner. However, Respondent

No.1 conducted a meeting on 05.07.2021, after which it took a

decision dated 15.07.2021. This makes it clear that Respondent

No.1 had acted apparently in an arbitrary and completely illegal

manner towards the Petitioner and hence, the impugned decision

dated 15.07.2021 should be quashed on this ground alone.

15.07.2021 is in contravention and complete ignorance of the

provisions of not only Micro, Small and Medium Enterprise Act,

2006 (hereinafter referred to as 'the Act of 2006') but also of

[2023:RJ-JD:31339] (11 of 22) [CW-11648/2021]

Arbitration and Conciliation Act, 1996, and shows bias and unfair

conduct of Respondent No.1.

(D) That while taking the decision dated 15.07.2021, Respondent

No.1 had seemingly assumed the role of an arbitrator / arbitration

tribunal. Section 18 of the Act of 2006, provides that in case a

reference has been made to the Micro and small Enterprises

facilitation Council by virtue of a complaint, conciliation

proceedings have to be conducted and in case the same is not

successful, it has to be terminated, thereafter, the Council can

either by itself or through any institution, provide alternate

dispute resolution services, i.e, conduct arbitration proceedings,

under the Act of 1996. In any case, without termination of

conciliation proceedings and formal commencement of arbitration

proceedings and thereafter compliance with provisions of

Arbitration and Conciliation Act have to be done before passing an

award but the respondent have not conducted the conciliation

proceedings and thus, it is clear that the Respondent No. 1 has

not followed the provision of the Act of 2006.

(E) That the Respondent No.1 did not make any enquiry/noting, in

writing, regarding status of Respondent No.2 as an MSME on date

of alleged default in payment by Petitioner Hotel. Also that It was

seen in another case that a company, viz., VJ Home Studios Pvt.

Ltd. had filed a complaint bearing No. RJ/22/M/RJS/00932 having

Serial No. F9 (00932)/RMSEFC/2019/4003-4004 before

Respondent No. I against Petitioner and that the said Complaint,

was dismissed after making a noting regarding status of

[2023:RJ-JD:31339] (12 of 22) [CW-11648/2021]

complainant as not a MSME at the time of alleged default of

Petitioner.

(F) Further that there is a clear bias of the Respondent No.1

against Petitioner Company as in the present proceedings, the

Respondent No. 1 has not only not allowed the Petitioner

Company to participate in the proceedings but has also violated

various provisions of the Act of 2006 and the Act of 1996 and has

taken a decision against Petitioner Company without formally

adopting the role of the arbitrator and also, it is shocking to note

that Section 18 provides for conclusion of proceedings in 90 days,

however, the Respondent No.1 kept sending notices to Petitioner

in the case of VJ Homes (supra) and only when Petitioner filed a

Petition before this Hon'ble Court bearing no. 11990/2021 taking

into consideration the arbitrary behavior and the clear bias with

which Respondent No.1 was operating against Petitioner, did the

Respondent No.1 take a decision. The said writ petition remains

pending before this Hon'ble Court.

(G) The petitioner had not received complete set of complaint

documents for a long time and no order in that regard had been

passed by Respondent No. 1 and this action of the Respondent No.

1 is in violation of the principles of natural justice.

(H) The decision dated 15.07.2021 taken by the Respondent No.

1 is in complete ignorance of Section 18 of the Act of 2006 and

Section 67 (2) of the Act of 1996, as Section 18 states that if the

conciliation is initiated under Part III of the Act of 1996, then

Section 65 to 81 of the Act of 1996 will apply and thus the

[2023:RJ-JD:31339] (13 of 22) [CW-11648/2021]

decision dated 15.07.2021 is not in consonance with the

provisions of the Act of 1996.

(I) The Respondent No.1 can not only not take any "decision"

and/or pass any 'directions' as a means to conclude conciliation

proceedings, but it also cannot act as an arbitrator once it has

acted as the conciliator and this is a settled legal position and also

the Respondent No.1 has not disclosed complete information as

received by it from Respondent No.2 which is in contravention of

Section 70 of the Act of 1996 and is bad in law.

(J) The Respondent No.1 had directed Petitioner to travel from

one city to another, without any consideration of the existing

pandemic and as such the same shows the arbitrary behavior

adopted by it.

(K) The role of Respondent No. 1 is to implement the Act of 2006

and protect and promote MSMEs in general. However, the conduct

of proceedings by Respondent No.1 in subject conciliation

proceedings is illegal and perverse to law and policy.

18. The learned counsel for the respondents submitted that:

(A) The Respondent No. 2 - Company is not engaged in any other

business activity other than providing security services.

(B) There is nothing on record put by the petitioner which

suggests that the services provided by the Respondent No. 2 -

Company were inferior or were not upto the standards.

17. Heard learned counsels for both the parties and perused the

material on record as well as the judgements cited at the bar.

18. This Court observes that the petitioner has an efficacious and

statutory alternate remedy available under Section 34 of the Act

[2023:RJ-JD:31339] (14 of 22) [CW-11648/2021]

of 1996 against the award passed by the Respondent No. 1 -

Council. Section 34 of the Act of 1996 is reproduced hereunder:

"34. Application for setting aside arbitral award.--(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if:-

(a) the party making the application 1 [establishes on the basis of the record of the arbitral tribunal that]--

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) the Court finds that-- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India.

[2023:RJ-JD:31339] (15 of 22) [CW-11648/2021]

Explanation 1.--For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take

[2023:RJ-JD:31339] (16 of 22) [CW-11648/2021]

such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party."

19. This Court further observes that in catena of judgements

passed by Hon'ble Apex Court wherein it has been held that the

Writ Petition can be entertained by the High Court if the petitioner

is able to demonstrate before the Court the following conditions:

(a) the writ petition has been filed for the enforcement of a

fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(d) the vires of legislation is challenged.

20. This Court also observes that it is incumbant upon the

petitioner to demonstrate before this court the aforementioned

conditions for by-passing the efficacious statutory alternative

remedy, which the petitioner has failed to do so.

21. This Court further observes that Section 19 of the Act of 2006

mandates the deposit of 75% amount of the award before

initiating any appeal before any Court. In the instant case, the

petitioner has not complied with the pre-requisite of depositing

75% of the amount as per Section 19 of the Act of 2006. The

[2023:RJ-JD:31339] (17 of 22) [CW-11648/2021]

provision under Section 19 is crystal clear and unambiguous. The

legislative intent behind this is evident that the appellant shall

have a financial stake in appeal process, to prevent appeals

without merit. Section 19 of the Act of 2006 is reproduced

hereunder:

"19.Application for setting aside decree, award or order.-- No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with it seventy-five per cent. of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court:

Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of the amount deposited shall be paid to the supplier, as it considers reasonable under the circumstances of the case, subject to such conditions as it deems necessary to impose."

22. This Court also observes that the petitioner's failure to comply

with the deposit requirement under Section 19 of the Act of 2006

is a significant impediment to the continuation of this petition.

23. This Court further observes that the contention of the learned

senior counsel for the petitioner that the respondent Council could

not have acted as an arbitrator, is not sustainable, as under

section 18 (3) of the Act of 2006, it has been specifically laid down

that the Council shall either itself take up the dispute for

arbitration, arbitration or refer it to any institution or Centre

providing alternate dispute resolution services for such arbitration,

[2023:RJ-JD:31339] (18 of 22) [CW-11648/2021]

therefore, the submission of the learned senior counsel for the

petitioner is devoid of merit that the respondents conduct the pre-

conciliation and post-conciliation proceedings as laid down under

the Act of 2006. The order dated 05.07.2021 (Annexure - R2/2)

clearly reflects that the respondents had conducted duly the Pre-

Conciliation proceedings as well as Post-Conciliation proceedings,

strictly in accordance with the provisions mentioned under Section

65 to 81 of the Act of 1996. The relevant provision from Section

65 to 81 of the Act of 1996 is reproduced hereunder:

"65. Submission of statements to conciliator.-- (1) The conciliator, upon his appointment, may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of such statement to the other party.

(2) The conciliator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. The party shall send a copy of such statement, documents and other evidence to the other party. (3) At any stage of the conciliation proceedings, the conciliator may request a party to submit to him such additional information as he deems appropriate. Explanation.--In this section and all the following sections of this Part, the term "conciliator" applies to a sole conciliator, two or three conciliators, as the case may be.

67. Role of conciliator.--

(1) The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.

(2) The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to,

[2023:RJ-JD:31339] (19 of 22) [CW-11648/2021]

among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties. (3) The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.

(4) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor.

73. Settlement agreement.--

(1) When it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations. (2) If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.

(3) When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.

(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

79. Deposits.--

(1) The conciliator may direct each party to deposit an equal amount as an advance for the costs referred to in sub-section (2) of section 78 which he expects will be incurred.

[2023:RJ-JD:31339] (20 of 22) [CW-11648/2021]

(2) During the course of the conciliation proceedings, the conciliator may direct supplementary deposits in an equal amount from each party.

(3) If the required deposits under sub-sections (1) and (2) are not paid in full by both parties within thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination of the proceedings to the parties, effective on the date of that declaration. (4) Upon termination of the conciliation proceedings, the conciliator shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the parties."

24. This Court also observes that in the order dated 05.07.2021

(Annexure - R2/2) it has been specifically mentioned that the

petitioner was given several opportunities to produce the relevant

documents, however, the petitioner failed to do so. It is further

seen that in the order dated 05.07.2021, it has been specifically

mentioned that the petitioner sought time for settlement between

the parties however, choose to remain absent on the date when

they were required to remain personally present before the

Council. It is also seen from the order dated 05.07.2021 that the

petitioner sought time by way of an email sent to the respondents,

however, the respondent after examining the record mentioned

that no such e-Mail has been found with the respondent. The

relevant portion of the order dated 05.07.2021 is reproduced

hereunder:

"प्रकरण परिषद की बैठक दिनां क 25.02.2020 में रखा गया। जिसमें आपूर्तिकर्ता एवं केता उपस्थित रहे । जिसमें आपूर्तिकर्ता को केता को दस्तावेज उपलब्ध करवाने के निर्देश दिए गए तथा केता को 15 दिवस में पक्ष प्रस्तुत करने के निर्देश दिए गए थे। परिषद की बैठक दिनां क 24.072020 में पुनः रखी गई। जिसमें आपूर्तिकर्ता उपस्थित थे एवं केता अनुपस्थित रहें । परिषद द्वारा केता

[2023:RJ-JD:31339] (21 of 22) [CW-11648/2021]

के प्रतिनिधि श्री सुनिल गुप्ता से दू रभाष पर वार्ता की गई जिसमें उन्होने दो- तीन दिवस में समझौता करने का आश्वासन दिया था। परिषद द्वारा दिनां क 07 08 2020 तक सुलह करने के निर्देश दिए।

उपस्थित होने के निर्देश दिए। बैठक में आपूर्तिकर्ता उपस्थित रहे लेकिन कंता द्वारा पत्र लिखकर आग्रह पंजीकृत डाक से किया कि कोवित 19 महामारी के कारण यह व्यक्तिशः उपस्थित होने में असमर्थ है । परिषद द्वारा बैठक दौरान सुलह हे तु समझाईश के दृष्टिकोण से कता के अधिकृत प्रतिनिधि श्री एच. एच रूपानी से दू रभाष पर सम्पर्क हे तु प्रयास किया लेकिन वार्ता नहीं हो सकी।

आपूर्तिकर्ता द्वारा दिनां क 06.11.2020 को प्रकरण से सम्बं धित आफलाईन दस्तावेज सचिवालय में प्रस्तुत किए गए। जिसे दिनां क 04.01.2021 को परिषद द्वारा कता को प्रेषित करते हुए दो सप्ताह में पक्ष प्रस्तु त करने के निर्देश दिए एवं दिनां क 12.012021 को प्रकरण पुनः बैठक में रखा गया। जिसमें कता अनुपस्थित रहे । उनके प्रतिनिधि के रूप में श्री अनन्त कासलीवाल / शशां क काशलीवाल का ई मेल प्राप्त हुआ जिसमें उनके द्वारा चकालात नामा प्रस्तुत करने का दावा करते हुए बैठक हे तु बी.सी. लिंक उपलब्ध करवाने की मां ग की गई जबकि परिषद के सचिवालय रिकोर्ड में किसी प्रकार का नामा प्रस्तुत नहीं किया गया है । सुलह प्रक्रिया को ध्यान में रखते हुए श्री अनन्त कासलीवाल से विडियो लिंक भिजवाने हे तु दू रभाष पर बात की गई। लेकिन श्री कासलीवाल विडियो कां फ्रेंसिंग के लिए उपलब्ध नहीं हुए। अतः सुलह प्रक्रिया समाप्त करते हुए ट्रेिशन प्रक्रिया प्रारम्भ करने का निर्णय लिया गया।"

25. This Court further observes that as far as the contention of

learned Senior counsel for the petitioner in respect to registration

of the respondent with MSME is concerned, is not sustainable as

the Council after examining the facts and records has duly arrived

at a conclusion that the Respondent No. 2 was duly registered

under the Act of 2006 which is substantiated by a bare look at

order dated 05.07.2021 (Annexure-R2/2), wherefrom it is clear

that the respondent Enterprise qualified as a "Supplier" in

accordance with Section 2(n) of the Act of 2006. The relevant

portion of the order dated 05.07.2021 is reproduced hereunder:

[2023:RJ-JD:31339] (22 of 22) [CW-11648/2021]

"आपूर्तिकर्ता द्वारा यू . ए. एम क्रमां क RJ22E0003635 प्राप्त किया हुआ है । जो कि सूक्ष्म सेवा उद्यम श्रेणी में जारी किया हुआ है । अतः आवेदक उद्यम सूक्ष्म, लघु एवं मध्यम उद्यम विकास अधिनियम, 2006- की धारा-2 (n) के अनुसार आपूर्तिकर्ता उद्यम की पात्रता रखता है ।"

26. In view of the above discussion, the instant petition being

devoid of merits is dismissed and all pending applications, if any,

shall also stand dismissed.