ORDER :

1. Petitioner has filed this writ petition challenging the order dated 29.11.2022 passed by the Micro and Small Enterprises Facilitation Council (hereafter referred to as “Facilitation Council”).

2. The facts relevant for disposal of this writ petition are that respondent No.1 submitted an application under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “MSME Act”) pleading therein that the firm is Micro/Small Unit as per provision of MSME Act. Respondent No.1 supplied goods to the petitioner but petitioner has not paid the value of the goods supplied as per provision under Section 15 of the MSME Act. Balance of principal amount of which is pleaded as Rs.24,82,101/- and interest on it of Rs.2,44,248.39/-. Upon receiving application /reference under Section 18 of the MSME Act, notice was issued to petitioner and after failing of conciliation, proceedings under Section 18 (3) of the MSME Act was initiated, passed award fixing liability upon the petitioner for payment of Rs.24,82,101/- as balance amount towards supply of MS round in Coil and have further awarded interest three time of the actual interest to the tun of Rs.10,04,404/- and thereby fixed total liability for payment of Rs.34,86,505/- within the period of 30 days.

3. Learned counsel for the petitioner submits that the Facilitation Council erred in drawing proceeding under Section 18 of the MSME Act. Preliminary objection raised by the petitioner with regard to maintainability of the application under Section 18 of the MSME Act, was not decided at the first instance and the same was considered only while passing the final award. Referring to Section 16 (2) of the Arbitration and Reconciliation Act, 1996 (for short “Arbitration Act”), it is submitted that the plea of jurisdiction has to be decided at the first instance. In support of his contention, he placed reliance upon the decision of Hon’ble Supreme Court in the case of Mcdermott International INC Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 as also decision in the case of Surender Kumar Singhal and Ors. vs. Arun Kumar Bhalotia & Ors. 2021 SCC Online Del 3708. It is further contention of learned counsel for the petitioner that respondent No.1 got registered as Small Scale Enterprise only in the year 2021 (24.02.2021) i.e. after the date of entering into the contract. As on the date of entering into contract, respondent No.1 was not registered as Small Scale Enterprise, provision of MSME Act will not be applicable to respondent No.1 and he cannot take any benefit of provision mentioned therein. As on the date of entering into the contract, respondent No.1 being not registered enterprise under the MSME Act, respondent No.1 cannot be treated to be supplier under the provision of MSME Act and therefore application under Section 18 of the MSME Act on behalf of respondent No.1 was not maintainable and the Facilitation Council was not having jurisdiction to entertain an application submitted by such enterprise. In support of this contention, he placed reliance upon the decisions in the case of Silpi Industries etc. Vs. Kerala State Road Transport Corporation and Anr. 2021 SCC OnLine SC 439), Vaishno Enterprise Vs. Hamilton Medical AG & Anr. 2022 SCC OnLine SC 355, Gujarat State Civil Supplies Corporation Limited Vs. Mahakali Foods Pvt. Limited [2022 LiveLaw (SC) 893 equivalent citation in (2023) 6 SCC 401].

4. Learned counsel for respondent No.1 vehemently opposes the submission of learned counsel for the petitioner and would submit that the petitioner is registered as Small Scale Industry since its inception. Respondent no.1 also got it registered with the Govt. of India as MSME by submitting application on 15.09.2015. He placed before this Court the copy of Udyog Aadhar Memorandum in support of this contention for perusal. It is next contended that the objection raised by counsel for petitioner with regard to error committed by the Facilitation Council i