Micro Small Entrepreneur .... Opposite Parties Facilitation Council, Cuttack and another Mr. P.K. Nayak, Advocate for O.P. No.2 JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:06.05.2024 1. Instant writ petition is at the behest of the petitioner challenging the correctness, legality and judicial propriety of the impugned order dated 30th December, 2016 (Annexure 17A) and all such consequential orders including the proceeding in connection with MSEFC Case No.27 of 2014 seeking its quashment on the grounds stated. 2. The petitioner is a private limited company so also opposite party No.2 incorporated under the Companies Act, whereas, opposite party No.1 is the Micro and Small Enterprises Facilitation Council (in short 'the Council') constituted as per the provisions of the Micro Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as 'the MSMED Act') to conciliate and arbitrate upon payment disputes in respect of small and medium scale industries. In fact, the petitioner has questioned the impugned order dated 30th December, 2016 notwithstanding existence of alternate remedy in view of Section 19 of the MSMED Act. W.P.(C) No.8006 of 2017 Page 1 of 17 3. As made for reveal from the record, the dispute was referred to at the instance of opposite party No.2, whereafter, according to the petitioner, opposite party No.1 in complete departure to the statutory provisions of the Arbitration and Conciliation Act and the MSMED Act passed the order dated 30th December, 2016 in MSEFC Case No.27 of 2014 which is therefore not legally tenable, hence, to be set aside with the entire proceeding quashed. According to the petitioner, opposite party No.2 instituted a suit for recovery of the amount alleged to be due in C.S. No.397 of 2010 payable along with interest at the rate of 21% per annum, however, the learned Civil Judge, Senior Division, Rourkela dismissed it on 7th April, 2014 by order under Annexure3 on the premise that the statutory remedy under Section 19 of the MSMED Act is to be availed of. Furthermore, as per the pleading, while denying the liability, the petitioner advanced a plea that opposite party No.2 is not a supplier within the scope and meaning of the MSMED Act since for a reference under Section 18, such is a precondition. In other words, as per the petitioner, a Memorandum under Section 8 of the MSMED Act since was filed on 18th January, 2010, whereas, the supply of iron ores by opposite party No.2 is of the year 2009, the reference could not have been entertained by opposite party No.1 and hence, it has resulted in a jurisdictional wrong and therefore, the writ petition is maintainable even if an alternate statutory remedy is available. The further contention of the petitioner is that the impugned order dated 30th December, 2016 is not sustainable in law also for the fact that opposite party No.1 has not proceeded with the reference in accordance with law, inasmuch as, the MSMED Act stipulates that before W.P.(C) No.8006 of 2017 Page 2 of 17 any such decree or award, the council is to exercise jurisdiction for a conciliation between the parties, an exercise which has not been undertaken in the case. With the above grounds, the order under challenge and also the whole of the proceeding in MSEFC Case No.27 of 2014 is sought to be quashed by the petitioners. 4. Heard Mr. Lal, learned counsel for the petitioner, learned counsel for the State and Mr. Naik, learned counsel for opposite party No.2. 5. Mr. Lal, learned counsel for the petitioner would submit that the impugned order dated 30th December, 2016 by opposite party No.1 is without jurisdiction and as such a nullity and therefore, the same is liable to be quashed since the reference under Section 18 of the MSMED Act to be not maintainable and furthermore, there has been nonadherence to the mandatory procedure prescribed under subsection (3) of Section 18 thereof. Referring to Section 2(n) of the MSMED Act which defines a 'supplier' in relation to a micro or small enterprise, Mr. Lal submits that the Act came into existence w.e.f. 16th June, 2006 and opposite party No.2 claimed to have registered itself thereunder on 1st November, 2003 which is apparently fallacious and at best it can be said that the establishment commenced manufacturing activity on and from said date. Further by referring to Annexure2, Mr. Lal submits tha