Gauhati High Court Numaligarh Refinery Limited vs Union Of India And 2 Ors on 15 May, 2023 Page No.# 1/11 GAHC010230152022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7217/2022 NUMALIGARH REFINERY LIMITED A COMPANY INCORPORATED IN INDIA AND HAVING ITS REGD. OFFICE AT 122A, G.S. ROAD, CHRISTIAN BASTI, GUWAHATI781005, ASSAM AND IS REP. BY SRI KAJAL SAIKIA, S/O. LATE MADHU SAIKIA, R/O. QUARTER NO. D22, NUMALIGARH REFINERY TOWNSHIP, P.O. KANAIGHAT, DIST. GOLAGHAT, ASSAM. VERSUS UNION OF INDIA AND 2 ORS. REP. BY THE SECRETARY, MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES, UDYOG BHAWAN, RAFI MARG, NEW DELHI, PIN110011. 2:THE JOINT DIRECTOR AND HEAD OF OFFICE MSME DEVELOPMENT AND FACILITATION OFFICE MINISTRY OF MSME GOVT. OF INDIA MSME BHAWAN 65/1 GST ROAD GUINDY CHENNAI TAMIL NADI INDIA600032. 3:SOLAR DESIGN PVT. LTD. NO.1 A WING 3RD FLOOR PARSAN MANARE 602 Page No.# 2/11 ANNA SALAI CHENNAI600006 Advocate for the Petitioner : MR. A.K. Sahewalla Advocate for the Respondent Nos. 1 & 2 : Mrs. A. Gayan. Advocate for the Respondent No. 3 : Mr. D. Borah BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA J U D G M E N T (CAV) Date of Hearing : 04.05.2023 Date of Judgment : 15.05.2023 1. Heard Mr. AK Sahewalla, learned counsel for the petitioner. Also heard Mr. D Borah, learned counsel for the respondent No. 3 and Ms. A Gayan, learned counsel for the respondent Nos. 1 & 2. 2. The petitioner has prayed for setting aside Case No. TN/02/M/CHN/02164 filed by the respondent No. 3 for nonpayment of his contractual bills, which is pending before the respondent No. 2, i.e., the Joint Director & Head of Office, Micro, Small and Medium Enterprises (MSME) Development and Facilitation Office, Ministry of MSME, Government of India, on the ground that the Micro, Small and Medium Enterprises (MSME) Facilitation Council does not have the jurisdiction to entertain the said case. 3. The issue herein pertains to the Work Order dated 28.09.2021 and the Agreement dated 18.10.2021, wherein the petitioner had given a contract to the Page No.# 3/11 respondent No. 3 for interior civil and electrical work, including supply of furniture at Paradip Bhawan Building, NRL, Project Office Paradip Odisha. 4. The grievance of the petitioner is that the respondent No. 3 has filed a case against the petitioner for nonpayment of his contractual bills under Section 18(1) of the Micro, Small and Medium Enterprises Development Act, 2006, though the respondent No. 3 had completed the contract work. On the other hand, the case of the petitioner herein is that the materials supplied in pursuant to the work order by the respondent No. 3, was not as per the requirement of the Tender and was required to be replaced by the respondent No. 3. As the same was not done, the prayer of the respondent No. 3 for payment of his bills could only be entertained when the contract work was completed, by replacing the materials supplied by the respondent No. 3. 5. The petitioner's case is that the respondent No. 3 filed the above case under Section 18(1) of The Micro, Small and Medium Enterprises Development Act, 2006 (herein after referred to as the "MSMED Act, 2006"), which can only be decided if the requirement of Section 15 of the MSMED Act, 2006 is met. As the requirement of Section 15 of the MSMED Act, 2006 has not been met in view of Section 2(b) and 2(n), the case before the Facilitation Council is premature and without any jurisdiction. 6. The petitioner's counsel submits that in the agreement executed between the parties on 18.10.2021, Clause 7 of the agreement provided that all disputes or differences arising out of the contract would be referred to Arbitration as per the GPC/GCC Clause, whichever is applicable and all disputes, actions and proceedings would also be as per the GPC/GCC Clause. The petitioner's counsel submits that in view of the Arbitration Clause provided in the agreement Page No.# 4/11 between the parties, any dispute or differences pertaining to the contract between the