Point of Law : Estoppel is only a rule of evidence incapable of relieving a party from obligation to comply with Statute.

JUDGMENT :

Jayachandran, J.

1. Both these appeals stem from a common order of the District Court, Thiruvananthapuram dated 05.08.2014, of which, the appeal first above referred challenges the order in O.P.(Arbitration) No.378 of 2010 and the second, in O.P(Arbitration) No.380 of 2010. Both these appeals were earlier disposed of by a Division Bench of this Court along with connected appeals, as per judgment dated 11.08.2017. However, the first respondent in the appeal preferred review petitions as R.P.No.928/2017 in Arb. Appeal No.75/2014 and R.P.No.933/2017 in Arb. Appeal No.74/2014, on the premise that the connected appeals were disposed of on the question of limitation, as also, the maintainability of a counter claim, which contentions does not arise in the two appeals above referred, wherefore, those appeals are to be disposed of on merits. The contention of the review petitioner was accepted and the review was allowed as per order dated 31.10.2019, recalling the common judgment with respect to the two arbitration appeals above referred. Accordingly, the matter was heard by us and reserved for judgment.

2. A meticulous scan of the pleadings and facts involved in these appeals is not required, since the fate of these appeals centers around a specific issue as regards the applicability of the Micro, Small and Medium Enterprises Development Act, 2006 ['MSMED Act', for short] in the given facts. However, the essential facts to be noted are as follows:

The appellant [first respondent in the O.P. (Arbitration)] in both these appeals is the Kerala State Road Transport Corporation. The first respondent herein is a small scale enterprise in the name and style, M/s. Asiatic Rubro Complex and the second respondent is the Facilitation Council under the MSMED Act. The appellant/Corporation invited tender for supply of tread rubber. On the quote made by the first respondent herein, four purchase orders were issued by the appellant/Corporation. 80% of the total bill amount due on pre-cured tread rubber has to be paid on delivery and the remaining 20% will be retained towards mileage guarantee. As per the agreement, 20% of the retention amount will be released within one year from the date of last supply, subject to the performance/mileage guarantee. The compass of controversy in Arbitration Appeal No.75/2014 is with respect to the said 20%, while that of Arbitration Appeal No.74/2014 is with respect to the 80%. In Arbitration Appeal No.75/2014, there were four purchase orders dated 21.06.2006, 28.06.2006, 28.07.2006 and 09.10.2006. The last supply as against each purchase order was made on 30.06.2006, 22.07.2006, 09.10.2006 and 13.11.2006 respectively. According to the appellant in Arbitration Appeal No.75/2014, the first respondent could not satisfy the performance/mileage guarantee, wherefore, the appellant is not liable to release the retention amount. Per contra, it is the first respondent's case that the tread rubber supplied by it was of the stipulated and standard quality, which satisfied the condition as regards performance guarantee and they are entitled to get the amounts released. As could be seen from the number and year of the O.A. [O.A.No.5 of 2008], the first respondent approached the Facilitation Council only in the year 2008.

3. In Arbitration Appeal No.74/2014, there is only one purchase order dated 09.10.2006. The date of last supply against the said purchase order is not decipherable from the award of the Facilitation Council dated nil, though the award directs payment of 80% of the bill amount, together with interest at the rate specified from the date of last supply. The respondent herein would contend that the 80% of the bill amount, which was payable at the time of delivery, has not been paid without assigning any valid reason, except that the appellant/Corporation had suffered huge loss due to poor mileage performance of tyres. As could be seen from the number and year of the O.A. [O.A.No.26 of 2007], the first respond