Andhra HC (PreTelangana) M/S.Forbesvyncke Private Limited vs Mr.Turbovent Industries Private ... on 6 December, 2017 THE HONBLE SRI JUSTICE A.V.SESHA SAI W.P.No.14962 of 2017 06122017 M/s.Forbesvyncke Private Limited...Petitioner Mr.Turbovent Industries Private Limited, and another. ...Respondents Counsel for the petitioner:Sri A.Venkatesh Senior Counsel for the first Respondent:Sri S.Ravi <GIST: >HEAD NOTE: ? Cases referred 1 AIR 1969 SC 78 2 (2002) 5 SCC 510 3 (2017) 7 SCC 323 4 (1998) 6 SCC 590 5 184 (2011) DLT 454 6 (1977) 2 SCC 166 7 (1981) 2 SCC 646 8 AIR 2008 SC 2611 9 AIR 1994 SC 2151 10 AIR 2006 SC 577 11AIR 1975 SC 2238 12AIR 2012 BOMBAY 178 132016 (2) MPLJ 384 14 WRIT PETITION (Art227) No.699/2015, dated 25.11.2016 of the High Court of Chattishgarh at Bilaspur. 15 CIVIL APPEAL Nos.67576758/2008, Dated 25.11.2008 (2005) 5 SCC 390 AIR 2009 SC 1645 THE HONBLE SRI JUSTICE A.V.SESHA SAI W.P.No.14962 of 2017 O R D E R: In the present writ petition, challenge is to the action of the second respondent/Telangana State Micro, Small and Medium Enterprise Facilitation Council (hereinafter called the Facilitation Council) in initiating the proceedings under the Micro, Small and Medium Enterprises Development Act, 2006 vide reference No.21C/IFC/2016/22312. 2. According to the petitioner, it is a company engaged in the manufacture and supply of Boilers and the first respondent herein is a small scale industrial unit, engaged in the business of supplying bulk solid handling equipment and industrial fans. During the course of its business, petitioner herein requested the first respondent for supply of fuel feeding and ash handling system and other related equipment. In furtherance of the same, various purchase orders were issued by the petitioner to the first respondent and a number of disputes arose between the petitioner and the first respondent. Thereafter, the first respondent caused legal notice to the petitioner, who issued reply denying the claim. First respondent herein instituted a Civil Suit vide SPCS No.498/2014, on the file of the Court of the Civil Judge, Senior Division, Pune, Maharashtra State against the petitioner herein for recovery of a sum of Rs.49,30,932/ and for interest @ 24% from the date of the suit till realisation. 3. First respondent herein instituted the said suit on 24.03.2014. In the said suit, petitioner herein filed written statement denying the plaint allegations. Pending the said suit, obviously on the application made by the petitioner herein under Section 18 of the Act, petitioner received notices on 19.04.2016 and also another notice on 18.07.2016 from the second respondent Facilitation Council, fixing the date of enquiry as 30.07.2016. 4. By way notices/replies dated 27.07.2016, 09.08.2016 and 01.09.2016, petitioner herein raised objections as to the very initiation of the proceedings under the Act. On 06.02.2017, the Civil Suit bearing SPCS.No.498/201 was dismissed for nonprosecution. 5. In the above background, assailing the very initiation of the proceedings under the Act, the present writ petition has been filed. 6. A counter affidavit is filed on behalf of the first respondent, denying the averments in the writ affidavit and in the direction of supporting the impugned action. 7. Heard Sri A.Venkatesh, learned counsel for the petitioner and Sri S.Ravi, learned Senior Counsel appearing for the counsel on record for the first respondent apart from perusing the material available on record. 8. Learned counsel for the petitioner contends that the impugned action is highly illegal, arbitrary, unreasonable, without jurisdiction, impermissible and opposed to the very spirit and object of the provisions of the Act. It is further contended that having approached a competent civil Court by way of filing a suit and having suffered an order of dismissal of the suit, it would not be open for the first respondent to maintain the present proceedings. Learned counsel further submits that the first respondent ought to have filed an application under Order 9 Rule 9 of the Code of Civil Procedure and ought to have taken the suit proceedings to a logical end and that there is no bar under the Act for maintaining a civil suit. It is further contended that having elected a forum i.e., the Civil Court by way of instituting a suit, it is not open for the first respondent herein to initiate proceedings before the Conciliation Forum. It is the further submission of the learned counsel that unless there is an express bar under any law, civil Court continues to have jurisdiction under Section 9 of the Code of Civil Procedure and according to the learned counsel, the Judgment of the Hon'ble Apex Court in DHULABHAI ETC. v. STATE OF M.P. AND ANOTHER has no application to the case