The judgment establishes the principle that a writ petition challenging an arbitration award under the MSME Act may not be maintainable if an equally efficacious remedy is available under the Arbitration and Conciliation Act, 1996, and the MSME Act, 2006.

JUDGMENT :

1. Heard Sri Mohit Sharma, learned counsel for petitioner as well as Sri G.P. Mishra, learned counsel for respondent No. 3.

2. By means of present writ petition, the petitioner has challenged the award dated 23.03.2021.

3. It has been submitted by learned counsel for petitioner that petitioner is a construction company having its office at Sadbhav House, Law Gardena Police Chowki, Elis Bridge - Ahmedabad and is primarily engaged in the business of construction of highway and toll plaza across the country.

4. It is stated that respondent No. 3/M/s. Hightech Concrete Ltd. is manufacturer of other non-metalic, mineral products, articles and concrete, cement and plaster, Hume pipes and other pre-fabricated structural components of cement and concrete for building or civil engineering and the petitioner has entered into contract with respondent No. 3 for supply of RCC pipes. There were certain disputes between petitioner and respondent No. 3 and the matter was referred to conciliation. It is stated that the conciliation proceedings had failed and consequently the matter was referred for arbitration as per Section 18 of Micro, Small and Medium Enterprises Development Act, 2006.

5. It is further stated that petitioner and respondent No. 3 are registered under the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as the MSME Act) and accordingly the dispute was referred for arbitration under Section 18 of MSME Act, 2006.

6. The petitioner had appeared in the arbitration proceedings and filed his objections to the claim preferred by respondent No. 2. It is stated that subsequently due to onset of Covid-19 pandemic, the petitioner did not appear in the arbitration proceedings and the award was passed on 23.03.2021.

7. It is further stated that petitioner only came to know about the said award when recovery notice dated 17.11.2022 was received by them. Subsequently present writ petition was filed challenging the said award.

8. Learned counsel for respondents on the other hand has submitted that present writ petition would not be maintainable inasmuch as the petitioner has an equally efficacious remedy under Section 19 of MSME Act of 2006 for challenging the award. The said challenge has to be made under Section 34 of the Arbitration and Conciliation Act, 1996. He has further submitted that the dispute between petitioner and the respondent is a private dispute and the matter was referred to arbitration and further submitted that an award passed by the Arbitrator would not be amenable to writ jurisdiction under Article 227 of the Constitution of India.

9. In this context, Hon'ble the Supreme Court in the case of Bhaven Construction Vs. Sardar Sarovar narmada Nigam Ltd, 2022 (1) SCC 75 has categorically observed :-

16. Thereafter, Respondent No. 1 chose to impugn the order passed by the arbitrator under Section 16(2) of the Arbitration Act through a petition under Article 226/227 of the Indian Constitution. In the usual course, the Arbitration Act provides for a mechanism of challenge under Section 34. The opening phase of Section 34 reads as 'Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3)'. The use of term 'only' as occurring under the provision serves two purposes of making the enactment a complete code and lay down the procedure.

17. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India, (2011) 14 SCC 337, this Court referred to several judgments and held:

"11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, andamus, quo warranto and prohibition under Article 226 of the Constitution is a basi