Orissa High Court Orissa State Coop. Marketing vs Tulasi Modern Rice Mill on 29 April, 2022 A.F.R W.P.(C) No.39436 of 2021 Orissa State Coop. Marketing .... Petitioner(s) Federation Ltd. BBSR & Anr. Mr. D. Mohapatra, Advocate versus Tulasi Modern Rice Mill, .... Opposite Party(s) Kendrapara & Anr. Mr. S.K. Jethy, Adv. for the O.P.1 Mr. R.P. Mahapatra, Addl. Govt. Adv. for the O.P.2 JUSTICE BISWANATH RATH ORDER Order No. 29.04.2022 10. 1. Short question involved herein is; once a proceeding is initiated on a complaint U/s.18 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter in short be reflected as "the Act, 2006"), whether in the first go the Council following the provision at Section 18 of the Act, 2006 should undertake recourse of conciliation? and in case of failure of conciliation, for the provision at SubSection 3 of Section 18 of the Act, 2006 the proceeding is to land in a dispute and in such case if the Council is justified in deciding the dispute without taking recourse to the provision of the Act, 1996 ? Page 1 of 9 // 2 // 2. Advancing his submission while not raising the dispute that there involves a Section 18 proceeding Mr. Mohapatra, learned counsel for the Petitioners taking this Court to the observations of the Council at page 121 of the brief contended that the Council while passing the award did not comply the provision under Subsection 3 of the Section 18 of the Act, 2006 and there is no taking recourse to the provision of the Act, 1996. Referring to the discussions in two paragraph above the award portion, a contention is raised that the conciliation proceeding was lastly taken up on 30.12.2020 and undisputedly the conciliation failed. Looking to the provision at Sub section 3 of Section 18 of the Act, 2006 Mr. Mohapatra, learned counsel for the Petitioner contended that in the above situation it becomes a bounden duty of the Council to convert the proceeding to a dispute and to decide the same in terms of the provision in the Act, 1996. For the Council not following the procedure at Subsection 3 of Section 18 of the Act, 2006, Mr. Mohapatra, learned counsel for the Petitioners contended that there is no scope for award and even if an award is passed such award is non est in the eye of law. Mr. Mohapatra, learned counsel for the Petitioners taking this Court to the condition in the agreement between the parties for having an Arbitration clause, said that once there is Arbitration clause provided in the contract between the parties, there is no question of taking up the matter through the Council under the Act, 2006. It is, at this stage of the matter, Mr. Mohapatra, learned counsel for the Petitioners also brought to the notice of this Court through the pleadings that in the meantime the Petitioners before even commencement of the conciliation, have already undertaken the exercise under the provision at the Act, 1996. It is thus contended that once the proceeding of arbitration in terms of the contract is Page 2 of 9 // 3 // invoked, nothing prevented the contesting Opposite Parties particularly the Opposite Party No.1 to attend to the Arbitration proceeding and get its disputed resolved through Arbitration. Mr. Mohapatra, learned counsel for the Petitioners also to support his case, relied on a decision of the Madras High Court in W.P(MD) No.13870 of 2021 decided on 7.09.2021 and reading through paragraph no.39 & 40 therein, attempted to submit that the impugned order is otherwise also against the Law and claims that the matter be remitted back to the Council for its fresh exercise strictly in terms of the provision at Section 18(3) of the Act, 2006. Mr. Mohaptra, learned counsel for the Petitioners also brings to the notice of this Court a decision of this Court in ARBP No.39 of 2017 decided on 9.03.2018 to support his case. 3. In his opposition Mr. Jethy, learned counsel for the Opposite Party