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2021 Supreme(Chh) 12
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
RAJENDRA CHANDRA SINGH SAMANT, J.
Sew Infrastructure Limited - Appellant
Versus
State of Chhattisgarh – Respondent
W.P.(227) No.22 of 2021
Decided on : 12-04-2021
Advocate Appeared:
For the Appellant :Mr. Amit Soni, Advocate
For the Respondent:Mr. B.P. Banjare, Mr. P.R. Patankar, Advocate
Point of Law: Alternate dispute resolution - Proceeding under Section 18 (2) of the Act, 2006 is still not over as the conciliation proceeding has not taken place, therefore, it is held that the respondent No.3 has failed to exercise its authority under Section 18 (2) of the Act, either by involving itself or by handing over the matter to any other institutions or centers providing alternate dispute resolution services.
Headnote:
Constitution of India, 1950 - Article 227 - - Micro, Small and Medium Enterprises Development Act, 2006 - Sections 18 and 18 (3) of - Arbitration and Conciliation Act, 1996 - Section 65 to 81 - Code of Civil Procedure,1908 - Section 89 - Alternative dispute resolution services - Civil dispute – No notice before conciliation proceedings.
Finding of the Court:
Circumstances are different as order sheets and minutes of proceeding do not mention that any conciliation proceeding has been taken up by respondent - Court has given decision on proceeding at this stage of execution - Case at present in matter - Parties were given opportunity to compromise and negotiate for terms and parties failed subsequent proceeding under Section 18 (2) of the Act, 2006 has been closed and Facilitation Council has ordered for proceeding under Section - Conciliation proceeding has not taken place held respondent has failed to exercise its authority under Section 18 (2) of the Act, either by involving itself or by handing over matter to any other institutions or centers providing alternate dispute resolution services - respondent for proceeding under Section 18 (3) of the Act is erroneous and illegal regarding interference is required for by petition.
Result: Petition is allowed
ORDER :
1. This petition has been brought under Article 227 of the Constitution of India praying to quash the proceeding on application for reference dated 18.09.2018, before the respondent No.3.
2. The facts of the case in brief is this, that the respondent No.4 moved an application under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (in short 'the Act, 2006'), before the Facilitation Council i.e. respondent No.3 on 18.09.2018. This application has been entertained by the respondent No.3. and the same is being proceeded with and notice has been issued to the petitioner for appearance in that proceeding.
3. It is submitted that the proceeding so initiated is against the provisions of Section 18 of the Act, 2006. Section 18 (2) of the Act provides that on receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services, by making a reference to such an institution or center, for conducting conciliation and the provisions of Section 65 to 81 of the Arbitration and Conciliation Act, 1996 shall apply to such a dispute as if the conciliation was initiated under Part III of that Act. The petitioner has not given any notice for such conciliation.
4. Reliance has been placed on the judgment of Supreme Court in case of Haresh Dayaram Thakur Vs. State of Maharashtra & Ors, reported in (2000) 6 SCC 179, judgment of High Court of Gauhati in Oil & Natural Gas Corporation Ltd. & Anr. Vs. Government of Assam & Ors. reported in 2009 SCC OnLine Gau – 7, judgment of Madras High Court in M/s. Ramesh Conductors P. Ltd. Vs. M & SE Facilitation Council & Ors., reported in 2015 SCC OnLine Mad 13110 and on the judgment of High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 14884 of 2016 between Reliance Communications Ltd. Vs. The State of Bihar & Ors., dated 11.04.2017. It is submitted that in all these judgments there is clear finding, that the conciliation proceeding under Section 18 (2) of the Act, 2006 is a must, therefore, it is prayed that the respondent No.3 be directed to comply the Section 18 (2) of the Act, 2006, before proceeding to decide the reference.
5. Counsel for the respondent No.4 opposes the petition and the submission made in this respect. It is submitted that the respondent No.3 has followed the procedure as provided under the Act, 2006. Section 18 (5) of the Act, 2006 provides time within which the matter has to be decided and that time limit has already crossed. It is submitted that the case law cited by the petitioner are not applicable in this case. Relying on the judgment of Gujarat High Court in Principal Chief Engineer Vs. Manibhai & Brothers (Sleeper) and Anr., reported in AIR 2012 GUJRAT 44, the judgment of Bombay High Court in M/s. Steel Authority of India Ltd. & Anr. Vs. Micro, Small Enterprise Facilitation Council, reported in AIR 2012 BOMBAY 178 and the judgment of High Court of Madras in Prime Technologies & Ors. Vs. Hamsa Watch Glass Pvt. Ltd. in O.S.A. No. 246 of 2015 and M.P. No.1 of 2015, decided on 25th November, 2015, it is submitted that the matter is pending before the Facilitation Council, therefore, the present petition can not be entertained, which may be dismissed.
6. In reply, it is submitted by the learned counsel for the petitioner that so far the petitioner has no information about any conciliation proceeding. Hence, it is prayed that the petitioner be allowed and relief be granted to the petitioner.
7. I have heard the learned counsel for the parties and perused the documents placed on record.
8. Respondent No.4 has filed the copy of minutes of meeting (Annexure R-4/1). In Sr. No. 20 of the minutes, there is mention of present case between the respondent and the petitioner. It is mentioned that the petitioner was served with notice on 13.01.2020, who gave appearance on 20.01.2020 and subsequent to which, he has f
