Calcutta High Court (Appellete Side) Gpt Infra Projects Limited vs M/S. Miki Wire Works Pvt. Ltd on 13 March, 2023 CIVIL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT: THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE C.O. 1078 of 2019 GPT Infra projects Limited Vs M/S. Miki Wire Works Pvt. Ltd. For the Petitioner : Mr. Anirban Roy Mr. Debangshu Dinda Mr. Varun Kothari For the Opposite party : Mr. Arnab Chakraborty Ms. Pragya Bhowmick Heard on : 19.01.2023 Judgment on : 13.03.2023 Ajoy Kumar Mukherjee, J. 1. Present application under Article 227 of the Constitution of India has been preferred by reason of order No. 31 dated 17 th January 2019 passed by Civil Judge (Senior Division), 2nd Court, Barasat in Misc. Case 22 of 2017, arising out of Arbitration Execution case No. 87/2016. 1 2. Petitioner contended that the petitioner engaged, interalia in the business of manufacturing concrete sleepers used by Indian Railways and on a regular basis, petitioner supplies to the Indian Railways, concrete sleepers as used in the railway tracks. In order to effect a fresh supply of concrete sleepers to the Indian Railways, the petitioner placed upon the opposite party two purchase orders being P.O. No. 20004783 dated 1 st October, 2012 and P.O. No. 20005311 dated 29th November, 2012 respectively for the supply of HTS Wires. The opposite party agreed to supply the same and in terms of said two purchase orders the total value covered thereunder was Rs. 2,18,44,132/. Clause 14 of the terms and conditions of the purchase orders contained an arbitration clause and in terms of clause 15 of the terms and conditions of the said purchase order interalia specified that the Courts at Kolkata alone will be vested with exclusive jurisdiction to receive, try and entertain any action initiated by and between the parties in the matter arising out of said agreement. 3. Pursuant to and in terms of the said two purchase orders, the opposite party supplied an aggregate quantity 302 M.T. of the said goods to the petitioner and raised its invoice upon the petitioner. Petitioner upon receipt of the said goods, caused manufacturing concrete sleepers for the purpose of effecting delivery to the Indian Railways. Petitioner alleged in the course of process of manufacturing of the said concrete sleepers from the said goods supplied by the opposite party, it was found that out of the concrete sleepers so manufactured with the said goods about 14,640 nos. concrete sleepers were 2 found to be defective by the inspecting authorities of Indian Railways which were below the specification, as a result whereof the concrete sleepers manufactured from the said goods could not be offered by the petitioner to meet the demands of the Indian Railways. 4. By reason of the Indian Railways not accepting supply of the concrete sleepers, petitioner had to suffer loss and damages to the tune of Rs. 2,26,43,395/. Correspondence exchanged between the parties thereafter, when petitioner complained about the substandard and inferior quality of the said goods supplied by the opposite party against said two purchase orders. The opposite party, denying the said goods to be of substandard and inferior quality, called upon petitioner to pay for the said goods. Opposite party informed the petitioner about the initiation of a proceeding by the opposite party before the Jharkhand Micro Small Medium Enterprises Facilitation Council at Ranchi (hereinafter referred as MSME council) which is a body constituted under Micro Small and Medium Enterprises Development Act, 2006 (hereinafter referred as MSMED Act). 5. Petitioner submits that the dispute and differences that arose between the parties were covered by the arbitration agreement contained in the purchase order and the parties have accepted said arbitration agreement and the provisions of the Act of MSMED is not applicable. He further alleged at no point of time, opposite party informed the petitioner that it has registered complain under the provisions of the said Act and from the purchase orders it is evident that the provisions of said Act is not applicable to the opposite party 3 and as such the opposite party cannot have filed the said complaint under the MSMED Act before the said council at Ranchi. 6. Owing to the supply of defective materials by the opposite party, petitioner claims that he is entitl