M/S. Srirasthu Shopping Mall vs Micro And Small Enterprises
2023 Latest Caselaw 215 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

               WRIT PETITION No.38797 OF 2022
ORDER:

Heard Mr. G.S. Jagannath, learned counsel for the petitioner

and Mr. M. Murthy, learned counsel representing Mr. Sinde Mohan

Devidhas, learned counsel for respondent No.2 and Mr. Gadi Praveen

Kumar, learned Deputy Solicitor General of India appearing on behalf

of respondent No.3

2. This writ petition is filed to set aside the award dated

30.04.2022 passed by respondent No.1 in Case No.1346/MSEFC/21.

3. CASE OF THE PETITIONER:

i) Respondent No.2, a Micro Enterprise duly registered with

Department of Ministry of Micro, Small and Medium Enterprises vide

registration No.UDYAM-TS-02-0020425, as a Wearing Apparels i.e.,

Manufacturing Enterprise. It was registered on 10.03.2021.

ii) During the course of its business, it has supplied textile

garments and clothing accessories to the petitioner Shopping Mall as

per the order placed by the petitioner during the year 2019-20 and

raised invoices accordingly.

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iii) Having received the aforesaid material, the petitioner failed

to clear the dues. Therefore, according to respondent No.2, the

petitioner is due and liable to pay an amount of Rs.13,74,715/-.

iv) According to respondent No.2, despite repeated requests

and regular persuasion, the petitioner failed to pay the aforesaid

amount. Therefore, it had filed a reference in terms of Mircro Small

and Medium Enterprises Development Act, 2006 (for short 'Act,

2006') with respondent No.1.

v) On receipt of the aforesaid reference, respondent No.1 has

passed the impugned award dated 30.04.2022 directing the petitioner

to pay the principal amount of Rs.13,74,715/- pertaining to eleven

(11) invoices and interest with effect from the appointed day as per

Sections - 15 and 16 of the Act, 2006. Respondent No.1 also held that

compound interest with monthly rests shall be payable @ three (03)

times of the Bank rate as notified by the Reserve Bank of India (RBI)

from time to time till realization of the dues i.e., till the day of final

payment made to respondent No.2 by the petitioner. Respondent No.1

further held that the principal and interest amounts are to be paid by

the petitioner to respondent No.2 within one (01) month from the date

of receipt of the said award.

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4. Assailing the said award, the petitioner herein has filed the

present writ petition on the following grounds:

a) Respondent No.1 Council neither followed the mandatory

procedure laid down under Section - 18, more particularly

18 (2) and 18 (3) of the Act, 2006, nor conciliation

proceedings are conducted.

b) Members of respondent No.1 Council cannot conduct both

conciliation and arbitration proceedings.

c) If conciliation proceedings are failed, respondent No.1

council either conduct arbitration proceedings by itself or

refer the matter to an Institution in terms of the Arbitration

and Conciliation Act, 1996 (for short 'Act, 1996'). The said

procedure was not followed.

d) Respondent No.1 council failed to follow the procedure laid

down under Sections - 65 to 81 of the Act, 1996.

e) Respondent No.1 failed to consider the counter claim filed

by the petitioner which is mandatory in terms of Section - 18

(3) of the Act, 2006.

f) No reasons were assigned in the impugned award. Any order

passed without reasons is a nullity.

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g) Therefore, though there is an alternative remedy of filing an

application under Section - 34 of the Act, 1996, the present

writ petition is maintainable.

5. CONTENTION OF RESPONDENT No.2:

Respondent No.2 had filed counter opposing the present writ

petition on the following grounds:

i) The present writ petition is not maintainable in view of

availability of an alternative and efficacious remedy of filing an

application under Section - 34 of the Act, 1996.

ii) Respondent No.1 on consideration of the entire material

available on record passed the impugned order, and there is no error in

it.

iii) Instead of filing an application under Section - 34 of the

Act, 1996, the petitioner has filed the present writ petition only to

avoid deposit of 75% of the amount awarded by respondent No.1 in

the impugned aware which is mandatory in terms of Section - 19 of

the Act, 2006.

iv) Respondent No.1 has conducted conciliation proceedings

which were ended in failure and then only it has passed the impugned

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award. Therefore, there is no violation of the procedure, much less

the procedure laid down under the Act, 2006 and the Act, 1996.

v) The contention of the petitioner that respondent No.1 cannot

conduct arbitration by itself in view of the bar under Section - 80 of

the Act, 2006 is unsustainable as per the law laid down by the Hon'ble

Supreme Court in Gujarat State Civil Supplies Corporation Ltd. V.

Mahakali Foods Pvt. Ltd. (Unit 2)1.

vi) Respondent No.2 has filed execution petition vide Arb.E.P.

No.159 of 2022 before XI Additional District Judge, Gudivada, and

orders were passed in the said petition. The petitioner herein had filed

a revision vide C.R.P. No.1988 of 2022 before the High Court of

Andhra Pradesh at Amaravathi challenging the said order in the said

E.P. and the High Court granted interim order. Thus, petitioner herein

is trying to evade the aforesaid payment awarded by respondent No.1

in the impugned award.

vii) With the aforesaid submissions, respondent No.2 sought to

dismiss the present writ petition.

6. With regard to the contention raised by respondent No.2 that

the present writ petition is not maintainable in view of availability of

. AIR 2022 SC 5545

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alternative and efficacious remedy of filing an application under

Section - 34 of the Act, 1996, it is relevant to note that in i) Surender

Kumar Singhal v. Arum Kumar Bhalotia2, ii) Deep Industries

Ltd. v. Oil and Natural Gas Corporation Ltd.3; iii) Punjab State

Power Corporation Ltd. v. Emta Coal Ltd4 and iv) Radha

Krishnan Industries v. State of Himachal Pradesh5, held that if the

mandatory procedure laid down under Sections - 18 (2) and 18 (3) of

the Act, 2006 and Sections - 65 to 81 of the Act, 1996 is not followed

by the Council while adjudicating the subject reference filed by any

party, if there is violation of the said procedure, this Court can

interfere with the Award by invoking its inherent jurisdiction under

Article - 226 of the Constitution of India. It was further held that the

writ petition is maintainable and Section - 34 of the Act, 1996 is not

an alternative and efficacious remedy. This Court vide order dated

14.09.2022 in W.P. No.16918 of 2022, took the same view.

7. In view of the aforesaid law laid down in the aforesaid

judgments, the next question that falls for consideration before this

Court is:

. 2021 SCC OnLine Del.3708

. (2020) 15 SCC 706

. SLP to Appeal (Civil) No.8482 of 2020, decided on 21.09.2021

. (2021) 6 SCC 771

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Whether there is any violation of mandatory procedure laid

down under Sections - 18 (2) and 18 (3) of the Act, 2006 and

Sections - 65 to 81 of the Act, 1996 by respondent No.1 while

passing impugned award?

8. ANALYSIS AND FINDING OF THE COURT:

i) To consider the aforesaid issue, it is relevant to extract the

provisions of Section - 18 of the Act, 2006 and Sections 65 to 81 of

the Act, 1996 and the same is as under:

Micro Small and Medium Enterprises Development Act, 2006

Section 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.

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(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 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.

THE ARBITRATION AND CONCILIATION ACT, 1996

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.

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(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.

66. Conciliator not bound by certain enactments.--The conciliator is not bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

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, 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,

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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.

68. Administrative assistance.--In order to facilitate the conduct of the conciliation proceedings, the parties, or the conciliator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

69. Communication between conciliator and parties.-- (1) The conciliator may invite the parties to meet him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately.

(2) Unless the parties have agreed upon the place where meetings with the conciliator are to be held, such place shall be determined by the conciliator, after consultation with the parties, having regard to the circumstances of the conciliation proceedings.

70. Disclosure of information.--When the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the

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opportunity to present any explanation which he considers appropriate:

Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party.

71. Co-operation of parties with conciliator.--The parties shall in good faith co-operate with the conciliator and, in particular, shall endeavour to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings.

72. Suggestions by parties for settlement of dispute.-- Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.

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.

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(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.

74. Status and effect of settlement agreement.--The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section

30.

75.Confidentiality.--Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

76.Termination of conciliation proceedings.--The conciliation proceedings shall be terminated--

(a) by the signing of the settlement agreement by the parties, on the date of the agreement; or

(b) by a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; or

(c) by a written declaration of the parties addressed to the conciliator to the effect that the conciliation

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proceedings are terminated, on the date of the declaration; or

(d) by a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

77. Resort to arbitral or judicial proceedings.--The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.

78. Costs.-- (1) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the conciliation and give written notice thereof to the parties.

(2) For the purpose of sub-section (1), "costs" means reasonable costs relating to--

(a) the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties;

(b) any expert advice requested by the conciliator with the consent of the parties;

(c) any assistance provided pursuant to clause (b) of sub- section (2) of section 64 and section 68.

(d) any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.

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(3) The costs shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party.

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.

(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.

80. Role of conciliator in other proceedings.--Unless otherwise agreed by the parties,--

(a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings;

(b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings.

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81. Admissibility of evidence in other proceedings.--The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,--

(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;

(b) admissions made by the other party in the course of the conciliation proceedings;

(c) proposals made by the conciliator;

(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator."

ii) As per Section - 18 (2) of the Act, 2006, respondent No.1

Council, on receipt of a reference under sub-section (1) of Section 18,

shall either itself conduct conciliation or seek the assistance of any

Institution or Centre providing alternate dispute resolution. As per

Section 18 (3) of the Act, 2006, if conciliation is not successful 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.

iii) In the impugned award, respondent No.1 has specifically

mentioned its summary of the proceedings below paragraph No.8 of

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the award in a tabular form. Perusal of the same would reveal that on

20.12.2021, both parties are present, the Council opined that the

conciliation has been failed and decided to move to Arbitration. It

also further held that the parties were given opportunities of

conciliation under Section - 18 (2) of the Act, 2006. Whereas, the

petitioner herein disputes the same and would contend that respondent

No.1 Council did not conduct conciliation at all.

iv) As per Section - 18 (2) of the Act, 2006, the provisions of

Sections - 65 to 81 of the Act, 1996 shall apply to such a dispute as if

the conciliation was initiated under Part III of the Act.

v) It is relevant to note that Section - 76 of the Act, 1996 deals

with termination of conciliation proceedings, and methods of

termination are also specifically mentioned therein.

vi) In the entire award, there is no mention about following the

aforesaid procedure by respondent No.1 Council. As discussed above,

in the impugned award, it is only mentioned that on 20.12.2021, both

the parties were present, the Council opined that the conciliation has

been failed and decided to move to arbitration. Thus, there is no

compliance with the aforesaid procedure laid down under Section -76

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of the Act, 1996 and, therefore, there is violation of mandatory

procedure laid down under Section - 18 (2) of the Act, 2006.

vii) It is also relevant to note that as per Section - 18 (3) of the

Act, 2006 if the conciliation initiated is not successful 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 Act, 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 the Act, 1996.

As stated above, in the impugned award, there is no mention that

respondent No.1 has followed the aforesaid procedure laid down

under Sections - 65 to 81 of the Act, 1996, more particularly, Section -

76. Thus, there is violation of the aforesaid mandatory procedure laid

down under both the Act, 2006 and Act, 1996. Thus, the present writ

petition is maintainable in view of the law laid down by the Apex

Court in the aforesaid decisions.

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viii) It is relevant to note that in Mahakali Foods Pvt. Ltd.

(Unit 2)1, the Apex Court has extensively considered the provisions of

both the Acts and gave the following findings:

"34. The upshot of the above is that:

(i) Chapter-V of the MSMED Act, 2006 would override the provisions of the Arbitration Act, 1996.

(ii) No party to a dispute with regard to any amount due under Section 17 of the MSMED Act, 2006 would be precluded from making a reference to the Micro and Small Enterprises Facilitation Council, though an independent arbitration agreement exists between the parties.

(iii) The Facilitation Council, which had initiated the Conciliation proceedings under Section 18(2) of the MSMED Act, 2006 would be entitled to act as an arbitrator despite the bar contained in Section 80 of the Arbitration Act.

(iv) The proceedings before the Facilitation Council/institute/centre acting as an arbitrator/arbitration tribunal under Section 18(3) of MSMED Act, 2006 would be governed by the Arbitration Act, 1996.

(v) The Facilitation Council/institute/centre acting as an arbitral tribunal by virtue of Section 18(3) of the MSMED Act, 2006 would be competent to rule on its own

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jurisdiction as also the other issues in view of Section 16 of the Arbitration Act, 1996.

(vi) A party who was not the 'supplier' as per the definition contained in Section 2(n) of the MSMED Act, 2006 on the date of entering into contract cannot seek any benefit as the 'supplier' under the MSMED Act, 2006. If any registration is obtained subsequently the same would have an effect prospectively and would apply to the supply of goods and rendering services subsequent to the registration."

ix) It is not in dispute that respondent No.2 had supplied textile

garments and clothing accessories to the petitioner against the verbal

orders between the years 2019 and 2020. In the impugned award,

respondent No.1 has also extracted invoice-wise statement submitted

by respondent No.2 - claimant in a tabular form. There were eleven

(11) invoices raised from 11.09.2019 to 04.12.2020. Thus, there is no

dispute that respondent No.2 has supplied the aforesaid material

between the years 2019 and 2020. It is also not in dispute that

respondent No.2 is a Micro Enterprise and registered with the

Department of Ministry of Micro Small and Medium Enterprises as a

wearing apparel which is a manufacturing enterprise on 10.03.2021.

It is also not in dispute that respondent No.2 submitted reference in

MSME Samadhaan Portal on 29.07.2021 and claim petition number

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assigned as 1346/MSEFC/2021 and relevant documents submitted on

17.08.2021 before the Micro and Small Enterprise Facilitation

Council, Ranga Reddy Region, Lakdikapul, Hyderabad. The

aforesaid facts are specifically mentioned in the impugned award and

the counter filed by respondent No.2 in the present writ petition

herein. Thus, as on the date of supply of aforesaid material,

respondent No.2 herein was not registered with the Department of

Ministry of Micro, Small and Medium Enterprises as it was registered

only on 10.03.2021. The aforesaid registration is prospective in

nature.

x) It is relevant to note that Section - 2 (n) of the Act, 2006

defines 'supplier'. As stated above, respondent No.2 cannot become a

micro or small enterprise or a supplier to claim benefit under the Act,

2006 by submitting a claim in terms of Section - 18 (1) of the Act,

2006 for the supplies made before registration. Any registration

obtained subsequently would have the effect prospectively and would

apply for supply of goods and rendering services subsequent to

registration. The same cannot operate retrospectively.

xi) As discussed above, the Apex Court in Mahakali Foods

Pvt. Ltd. (Unit 2)1 considered the definition of 'supplier' under

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Section - 2 (n) of the Act, 2006 and its applicability. It was held that a

party, who was not the "supplier" as per Section 2 (n) of the Act, 2006

on the date of entering into the contract, cannot seek any benefit as a

supplier under the Act, 2006. If any registration is obtained

subsequently, the same would have the effect prospectively and would

apply for the supply of goods and rendering services subsequent to the

registration. As discussed above, in the present case, there is no

agreement between the petitioner and respondent No.2. However,

according to respondent No.2 - claimant, it had supplied goods against

the verbal orders to the petitioner herein for the period from 2019 to

2020. However, it has registered as Micro Enterprises only on

10.03.2021. Therefore, the registration will operate prospectively but

not retrospectively. Thus, respondent No.2 cannot submit a reference

in terms of Section - 18 (1) of the Act, 2006 with respondent No.1

with regard to supplies made before registration. Though the said

aspects were referred in the impugned award, respondent No.1 did not

consider the same. Therefore, the impugned award is not on

consideration of the aforesaid facts, provisions of law and the

principle laid down in Mahakali Foods Pvt. Ltd. (Unit 2)1.

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xii) Referring to the very same principle, Mr. Murthy, learned

counsel representing on behalf of respondent No.2 would submit that

the petitioner herein has to file an application under Section - 34 of the

Act, 1996 but not the present writ petition. He has referred the finding

of the Apex Court in Bharat Electronics Ltd. V. Ibex Integrated

Business Express Private Ltd.,6. In the said case, a preliminary

objection with regard to maintainability of reference on the ground

that there was an arbitration clause contained in the agreement

between the parties was raised. The said preliminary objection was

rejected by the Council and it had passed an Award. Feeling

aggrieved by the said rejection order rejecting the preliminary

objection and consequential award, respondent therein had filed two

writ petitions and both were dismissed by the High Court on the

ground that the award was passed and, therefore, respondent therein

has to take recourse to Section 34 of the Act, 1996, whereas, in the

present case, the facts are altogether different to the facts of the said

case. As discussed above, in the present case, respondent No.1 failed

to follow the mandatory procedure laid down under Section - 18 of the

Act, 2006 and Sections - 65 to 81 of the Act, 1996. Moreover, in the

. SLP (C) No.7375 of 2020, decided on 31.10.2022

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case on hand, respondent No.2 has submitted reference in terms of

Section - 18 (1) of the Act, 2006 with respondent No.1 in respect of

the supplies made before its registration as 'Micro Enterprise'.

Therefore, the said contention of learned counsel appearing on behalf

of respondent No.2 is unsustainable.

xiii) It is also relevant to note that Mr. G.S. Jagannath, learned

counsel for the petitioner, would contend that the Members of

respondent No.1 Council conducted both arbitration and conciliation

proceedings which are in violation of the procedure laid down under

Section - 80 of the Act, 2006. In Mahakali Foods Pvt. Ltd.1, the

Apex Court held that the Facilitation Council, which had initiated the

Conciliation proceedings under Section - 18 (2) of the Act, 2006

would be entitled to act as an arbitrator despite the bar contained

in Section - 80 of the Act, 1996. In view of the aforesaid principle

laid down by the Apex Court, the contention of the learned counsel for

the petitioner is unsustainable.

9. CONCLUSION:

i) However, as discussed above, respondent No.1 has passed

the impugned award in contravention of the mandatory procedure laid

down under the provisions of the Act, 2006 and the Act, 1996 and that

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failed to consider that the supplies were made before registration of

respondent No.2 as Micro Enterprises and, therefore, it is not a

Supplier as defined under Section - 2 (n) of the Act, 2006. Thus, there

is violation of the aforesaid mandatory procedure laid down under

both the Acts while passing the impugned order. Therefore, though

there is an alternative remedy of filing an application under Section -

34 of the Act, 1996, the present writ petition is maintainable. The said

principle was also held by the Apex Court in the aforesaid judgments.

Thus, the impugned award 30.04.2022 passed by respondent No.1 in

Case No.1346/MSEFC/2021 is set aside.

ii) The writ petition is accordingly allowed. However, there

shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending in

the writ petition shall stand closed.

_________________ K. LAKSHMAN, J 18th January, 2023 Mgr