ORDER :

1. This petition is filed under Article 226 of the Constitution of India praying for writ of certiorari or any other appropriate writ, order or direction quashing and setting aside order dated 4.3.2013 passed below Exh.56 in Civil Misc. Application No.148 of 2002 by 2nd Additional District Judge, Vadodara, whereby application given by the petitioner for rejection of the application of the respondent herein for non compliance of pre-deposit of 75% of the amount of award, for filing such application praying for setting aside award passed by the Arbitral Tribunal in view of provisions of Micro, Small, and Medium Enterprises Development Act, 2006 (herein after referred to as ‘MSME Act’), which came to be rejected by the concerned Court.

2. Assailing the impugned order, Mr.B.S.Patel, Senior Advocate, learned counsel assisted by Mr.Umang Oza, learned advocate for the petitioner submitted that in view of the provision made in Section 19 of the ‘MSME Act’, no any application for setting aside the award passed by Arbitral Tribunal under Section 34 of the Arbitration and Conciliation Act, 1996 (herein after referred to as ‘the Act, 1996’) be entertained without ensuring deposit of 75% of the amount awarded. Drawing attention of the Court to the certificate issued by the District Industry Center, Vadodara permanently registering the petitioner as S.S.I.Unit, it is submitted that the petitioner is supposed to have all the benefits under the ‘MSME Act’ including that of objecting to maintainability of an application filed under Section 34 of ‘the Act, 1996’ in absence of deposit of 75% of the amount in terms of the award and therefore, he has submitted that the impugned order passed by the learned Judge is erroneous and requires to be interfered with.

3. Relying on a decision in the case of M/S.Sri Parvathi Parameshwara Cables and other v. Andhra Pradesh Transmission Corpn. Ltd. & Anr. reported in (2013) 10 SCC 693 wherein earlier decision of the Supreme Court in the case of Snehadeep Structures (P) Limited Vs Maharashtra Small Scale Industries Development Corporation Limited reported in (2010) 3 SCC 34 agreeing with the proposition that 75% of the awarded amount was required to be deposited before the application under Section 34 of ‘the Act, 1996’ could be entertained, ultimately held that the term ‘Appeal’ appearing in Section 7 of Interest On Delayed Payments To Small Scale And Ancillary Industrial Undertakings Act, 1993 (herein after referred to as ‘the Interest Act, 1993’) would include an application under Section 34 of ‘the Act, 1996’ as well.

4. He has further relied on two latest decisions of the Supreme Court in the case of Gujarat State Disaster Management Authority Vs. Aska Equipments Limited reported in (2022) 1 SCC 61 as also in the case of M/s.Tirupati Steels V/s. M/s. Shubh Industrial Component & Anr. reported in (2022) 7 SCC 429 and submitted that Court has no discretion to deviate from condition of 75% of the awarded amount as a deposit except in a case of hardship being shown and Court being satisfied it may allow the deposit be made in installments. However, it is submitted that as a matter of principle, there is no discretion left to the Court once an award passed by the Arbitral Tribunal and it is challenged by way of application under Section 34 of ‘the Act, 1996’ to make deposit as provided under Section 19 of ‘the MSME Act’.

5. He has further submitted that it is for the Court not to entertain such application without compliance of requirements of the deposit. It is further submitted that Court should not wait till the application is preferred by the respondent requesting the Court to direct the deposit be made.

6. He has further submitted that despite ‘MSME Act’ came into existence in the year 2006 it repealed as provided under Section 32 of ‘MSME Act’, ‘the Interest Act 1993’. Therefore, according to his submission, when the proceedings in the nature of application under Section 34 of ‘the Act, 1996’ is filed,