JUDGMENT :

Moushumi Bhattacharya, J.

1. The petitioner has prayed for setting aside of an award made and published on 23.9.2018 and served on the petitioner under cover of a letter dated 25.9.2018 by the learned Sole Arbitrator.

2. The petitioner is a registered Micro and Small Scale Enterprise and was the respondent in the arbitration proceedings before the Sole Arbitrator. The petitioner is the “supplier” of services and the respondent is the “buyer” in the dispute before the Arbitrator. The contract related to repair of a Wet Basin flap gate at Garden Reach Shipyard, Kolkata.

3. The petitioner made a reference on 11.5.2016 under the provisions of The Micro, Small and Medium Enterprises Development Act, 2006 before the West Bengal State Micro Small Enterprises Facilitation Council and the respondent was called upon to appear for conciliation before the Council on 4.7.2016. During the pendency of the reference before the Facilitation Council, the respondent appointed an Arbitrator on 23.9.2016 on the basis of a clause in the purchase order. The Arbitrator issued notice to the parties on 4.10.2016 for adjudicating disputes arising out of the purchase order. The petitioner thereafter challenged the jurisdiction of the Arbitrator under section 16 of The Arbitration and Conciliation Act, 1996 which was rejected on 28.2.2017. The Facilitation Council in the meantime fixed its meeting on 27.2.2017 by way of a notice issued to the parties on 13.2.2017.

4. The petitioner also filed writ petitions in the High Court for, inter alia, a direction on the Facilitation Council to dispose of the Reference initiated by the petitioner on 11.5.2016 and restraining the respondent from giving any effect to the invocation of clause 18 of the purchase order. By an order dated 19.4.2017, the High Court directed the Council to proceed with the Reference and to dispose of the claims in accordance with law.

5. The Arbitrator proceeded to pass the impugned Award dated 23.9.2018 which is presently under challenge.

6. The issue which presently falls for adjudication is whether the Arbitrator had jurisdiction to pass the impugned Award. The petitioner questions the jurisdiction of the Arbitrator on the ground that the Facilitation Council had the exclusive jurisdiction to decide on the reference made by the petitioner in terms of the provisions of the MSMED Act, 2006.

7. Learned counsel appearing for the petitioner relies on the fact of the Reference pending before the Facilitation Council and the non obstante clause contained in section 18 of the MSMED Act. Counsel submits that the Reference made by the petitioner before the Council culminated in an award in the petitioner’s favour on 28.12.2017. Counsel submits that the respondent however avoided appearing before the Council and sought to invoke the contractual arbitration clause by a letter dated 22.8.2016 as a counter-blast to the Reference pending before the Facilitation Council. Counsel submits that the petitioner was compelled to continue with the arbitration proceedings in view of section 16(5) of the 1996 Act which culminated in the impugned Award and the petitioner is entitled to challenge the finding of the Arbitrator under section 16(6) of the 1996 Act by way of an application under section 34 of the said Act.

8. Learned counsel appearing for the respondent, on the other hand, submits that there was no impediment to the Sole Arbitrator entertaining and deciding the dispute between the parties. Counsel submits that the dispute referred to arbitration could not have been adjudicated by the Facilitation Council since it was not a dispute contemplated under section 17 or 18 of the MSMED Act, 2006. Counsel submits that the petitioner was the “supplier” and the respondent was the “buyer” as defined under the MSMED Act in terms of work orders issued by the respondent to the petitioner for executing a contract for repair of the Wet Basin flap gate at the main yard on a turnkey basis.

9. Counsel submits