Writ petitions challenging an Arbitral Award for lack of jurisdiction are not maintainable if the jurisdiction issue is not raised before the Arbitrator, resulting in a waiver of the right to dispute jurisdiction later.

ORDER :

N. ANAND VENKATESH, J.

The issue involved in both these Writ Petitions are common and hence, they are taken up together, heard and disposed of through this common order.

2. The petitioner in both these writ petitions has challenged the Arbitral Award dated 02.12.2023, passed by the Arbitral Tribunal on the ground that the Tribunal lacked jurisdiction.

3. The respondent is carrying on with business of fabrication, assembly and supply of engineering items in general and in particular structural and mechanical fabrication of steel plants of conveyor systems and transfer towers. The respondent is also engaged in the business of carrying out turnkey projects in infrastructure sector across India and offering end to end services in Design, Testing, Commissioning etc.

4. The respondent entered into a contract on 06.09.2013 with the petitioner in both the writ petitions and materials were supplied for which invoices were raised for the period from 08.10.2013 to 07.01.2014. Since the amount was not paid, the MSME Council referred the dispute to Arbitration by order dated 21.08.2018. Pursuant to the same, the parties went before the Arbitral Tribunal and the Tribunal has passed an Award which has been put to challenge in both these writ petitions.

5. The respondent has filed a counter affidavit in both the writ petitions and raised the issue of maintainability of the writ petitions against an Award passed by the Arbitrator. They have also questioned the conduct of the writ petitioner in not raising the issue of jurisdiction before the Arbitrator and thereby, waiving their right. The writ petitioner had questioned the jurisdiction of the MSME Council referring the dispute to the Arbitrator on the ground that as on the date of contract and as on the date when the invoices were raised, the respondent was not registered with MSME and they had registered only on 03.05.2016. For this ground raised by the petitioner, the respondent has taken a stand in the counter affidavit that the respondent commenced their operations from the year 1979 insofar as Unit-I is concerned and in the year 2010 insofar as Unit-II is concerned and that the registration took place in the year 2010 on submission of Memorandum as per Section 8 of the Micro, Small and Medium Enterprises Development Act, 2006 (herein after referred to as “the Act”) and therefore, as on the date when the contract was entered into, respondent was registered with MSME. The respondent has also taken a stand that the petitioner has filed an application under Section 34 of the Arbitration and Conciliation Act, 1996. But however, the same was not prosecuted, since they are required to deposit 75% of the amount awarded and in order to avoid the same, the petitioner has parallely instituted writ proceedings before this Court. Accordingly, the respondent has sought for the dismissal of these writ petitions.

6. The learned counsel for the petitioner by placing reliance upon the judgement of the Apex Court in Tamil Nadu Cements Corporation Limited vs. Micro and Small Enterprises Facilitation Council and Another reported in 2025 4 SCC 1 , submitted that the maintainability of a writ petition under Article 226 of the Constitution of India against an order passed in exercise of power under Section 18 of t