ORDER :

Prayer : Writ Petition has been filed under Article 226 of the Constitution of India seeking a Writ of Certiorari calling for the records of the first respondent culminating in passing the order dated 09.06.2017 in O.P.No.MSEFC/CR/68/2016 and quash the same.

This writ petition has been filed challenging the order passed by the first respondent Micro Small Enterprises Facilitation Council, dated 09.06.2017 in O.P.No.MSEFC/CR/68/2016.

2. The case of the writ petitioner is that the second respondent was the successful bidder in respect of a subcontract floated by the petitioner through its Western, Eastern and Northern regions. The contract is in respect of material handling, erection, testing and commissioning of boilers, turbines and their auxiliaries in the State of Gujarat, Orissa, Bihar and Rajasthan.

3. The contracts are in the nature of works contract. The second respondent could not able to perform the contract as per the stipulations. In the meanwhile, the second respondent has approached the first respondent Micro Small Enterprises Facilitation Council (for short 'MSEF Council') seeking conciliation of difference of opinion which had arisen between the petitioner and the second respondent on the delay in execution of the subject contract.

4. The MSEF Council by its impugned order dated 09.06.2017, concluded that conciliation process could not succeed as the matter involves intricate engineering issues of contract management i.e. deployment of machineries, labour etc.,. The MSEF Council has however referred the matter to the Arbitration Center of the Madras High Court. The writ petitioner has received communication from the Arbitration Center of Madras High Court after a lapse of three years.

5. The petitioner appeared before the Arbitrator and agreed to the time schedule of hearing drawn up by the Arbitrator. Now, it is contended that MSEF Council has no jurisdiction to refer the issue to the Arbitrator since the dispute relates to works contract. The first respondent MSEF Council ought to have taken cognizance of these aspect of the matter and ought to have declined to refer the matter to arbitration and therefore on the ground of jurisdiction, the order of the first respondent MSEF Council is challenged in this writ petition.

6. The second respondent has filed a counter stating that their company is a MSME unit engaged in the business of planning, fabrication, construction, erection and commissioning of plant, machinery etc. The second respondent satisfactorily completed the contract at Kutch site, Gujarat and was executing the contracts at the other sites without any hitch or room for any complaint.

7. The second respondent has further stated that the writ petitioner has failed to pay the amount to the second respondent and therefore the second respondent has sent a letter to the petitioner for initiating arbitration in the year 2013 itself. As the steps taken by the second respondent did not fructified, finally he filed a reference to the MSEF Council.

8. Before the MSEF Council, as conciliation has failed, with consent of both the parties, the matter has been referred to the Arbitration Center of the Madras High Court. An Arbitrator was also appointed by the Arbitration Center of the Madras High Court. The petitioner's representative has appeared before the Arbitrator on the date of preliminary hearing along with the counsel for the petitioner. They also gave consent to the Arbitration and the time schedule fixed by the Arbitrator. Claim petition and written statement has also been filed. Therefore, having given consent for arbitration, now the impugned order cannot be challenged after a lapse of several years and seeks dismissal of the writ petition.

9. The main contention of the learned counsel appearing for the petitioner is that a contract was entered for works contracts which has not been disputed by the other side. Such being the position, the learned MSEF Council should not have entertained the reference made