Point of Law:
Section 80 of Act, 1996 by virtue of Section 61 of said Act, cannot override provisions of MSMED Act, 2006 and therefore, it cannot be said that Section 80 of Act, 1996 will exclude MASEF Council to act as Arbitrator, since it has been Conciliator in the dispute and arbitration therefore cannot be proceeded by it

JUDGMENT :

1. Petitioner, M/s Cummins Technologies India Private Limited, has filed present writ petition under Article 226 of Constitution of India with a prayer to issue a writ of Mandamus commanding respondent-1, i.e., Micro and Small Enterprises Facilitation Council, Directorate of Industries, Kanpur (hereinafter referred to as “MASEF Council”) to adjudicate and pass necessary orders on petitioner's application dated 7.2.2020 filed under Section 16 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Act, 1996”) and refer Claim Petition No. 14 of 2018, raising dispute between petitioner and respondent-3, i.e., M/s Roots Cooling System Pvt. Ltd. to an Institution, Centre or Arbitrator for Arbitration under Act, 1996. In the alternative, petitioner has also prayed that this Court should declare that respondent-1, i.e., MASEF Council has no jurisdiction to entertain Claim Petition No. 14 of 2018, raising a dispute between petitioner and respondent-3 in terms of Section 80 of Act, 1996.

2. Facts in brief, as pleaded in writ petition, are, that, petitioner is a Company incorporated under Companies Act, 1956 (hereinafter referred to as “Act, 1956”), validly existing and continuing under Provisions of Companies Act, 2013 (hereinafter referred to as “Act, 2013”). Petitioner is a Subsidiary Company and its Holding Company is “M/s Cummins Inc”.

3. Cummins Inc which is an American Fortune 500 Company, has its Headquarter at Columbus, Indiana, United States. Holding Company is engaged in designs, manufactures, and distribution of Engines, Filtration and Power Generation products. It has its presence approximately in 190 countries and territories through a network of more than 600 Companies. It also own independent distribution through approximately 6,000 dealers.

4. The present writ petition has been filed by M/s Cummins Technologies India Private Limited through Mr. Zoheb Hasan, an Authorized Representative in terms of Letter of Authority dated February 25, 2020.

5. Respondent-1 is Micro and Small Enterprises Facilitation Council, Directorate of Industries, Kanpur, which is an executive arm of respondent-2, engaged in discharging functions entrusted to it under Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “MSMED Act, 2006”). It acts for implementation of Government Policies for all round development of industries in State of U.P.

6. Respondent-2 is State of U.P. through Chief Secretary, Department of MSMED and Export Promotion, responsible for economic development of State of Uttar Pradesh.

7. Respondent-3 preferred an application under Section 18 of MSMED Act, 2006 before respondent-1 seeking recovery of Rs. 84,80,577/- (Principal amount Rs.40,61,228 + interest Rs.44,19,349), claiming it, a dispute between parties as contemplated under Chapter V of MSMED Act, 2006. Earlier thereto, Conciliation proceedings were initiated, which remained unsuccessful. Petitioner also moved an application under Section 16 of Act, 1996 on 7.2.2020, praying that respondent-1 should refer the dispute between parties to any Institution/Arbitrator or Centre providing alternate dispute resolution services for Arbitration on account of lack of jurisdiction with respondent 1 to act as an Arbitrator for resolving the dispute between parties in the light of Section 80 of Act, 1996, which has not been adjudicated upon by respondent-1 on the last date of hearing i.e. 17.02.2020, despite the fact that jurisdiction issue goes to the root of the matter and was expressly pressed by petitioner on 17.02.2020. Respondent-1 even did not issue notice and call for reply from respondent-3, thereby acting in complete derogation of the mandate of Section 16 of Act, 1996.

8. The case set up by petitioner is that after respondent-1 has attempted to conciliate between parties, it cannot act as an 'Arbitrator' for adjudication of the dispute. Reliance is placed on Section 18 of MSMED Act, 2006 and Section 80 of Act, 1996.

9. The s