Megha wp_1090_2021.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.1090 OF 2021

M/s. Magnum Opus IT consulting

Private Limited, having its ofce

at: Ofce No.6, Sai Vandan

Apartment, Paud Phata, Kothrud,

Pune-411 038.

...Petitioner

Versus

M/s. Artcad Systems, Through its

Proprietor Vinay Digambar

Shende Ag:41 years, Occupation:

Business. Residing at Flat No.5,

Suryaprakash Apartment, Parijat

Nagar, Near Shete Hospital,

Nashik 422 005.

...Respondent

...

Mr. Nitesh Bhutekar for Petitioner.

Mr. Anand Bhandari i/b. Mr. Vivekanand V. Krishnan for Respondent.

CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 14^th SEPTEMBER, 2022.

JUDGMENT :-

1.

Rule. With consent, rule is made returnable forthwith.

2.

This writ petition raises challenge to the order dated

03/02/2021 whereby learned District Judge, Nashik, allowed the

application fled by the Respondent under Section 29-A of the

Arbitration and Conciliation Act, 1996 and appointed retired Judge

Mr. Vivek R. Agrawal as the sole Arbitrator.

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3.

The Petitioner is a registered Company engaged in the

business of e-governance. The Respondent-proprietorship concern,

which is registered under Micro, Small and Medium Enterprises

Development Act, 2006 (hereinafter referred to as ‘MSMED Act’),

supplied to the Petitioner spare parts and raw material required for

manufacture of Active Tracker Machines. The Respondent claimed

that an amount of Rs.1,30,33,000/- was due and payable by the

Petitioner Company towards the price of the goods supplied. The

Respondent made reference to Micro, Small and Medium Enterprises

Facilitation Council (hereinafter referred to as ‘the Council’) under

Section 18 of the MSMED Act in respect of the amount due under

Section 17. The conciliation between the parties was not successful

and stood terminated without any settlement. Hence, the Council

took up the dispute for arbitration. It appears that the Petitioner

failed to appear before the Council on three occasions and on

29/07/2017 the Council decided to close the matter. By order dated

17/11/2017 in Arbitration Petition (LODG) No.20093 of 2017, fled by

the Respondent -herein, this Court revived the arbitration

proceedings, which was going on before the Council and directed the

Respondent to fle the statement of claim with compilation of

documents within a period of two weeks. The Council was directed

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to decide further course of action within four weeks from the date of

the order.

4.

There was no progress in the arbitration proceedings for

almost a period of three years. Since the period of one year

stipulated in Section 29-A of the Arbitration and Conciliation Act, had

expired, the Respondent fled an application before the District

Court at Nashik praying for extension of mandate and substitution of

Arbitrator in terms of Sub Section 6 of Section 29-A of the

Arbitration and Conciliation Act, 1996.

5.

The Petitioner claimed that the Respondent was

responsible for delaying the matter. It was contended that when the

matter was on the verge of disposal the Respondent had approached

the High Court to appoint an Arbitrator from the panel of the High

Court and when the matter came up for hearing agreed for revival of

the arbitration proceedings before the Council and to proceed

before the same Arbitrator. The Petitioner claimed that the

Respondent was only interested in delaying the matter by

approaching various authorities. The Petitioner also opposed the

said application on the ground that the provisions of MSME Act are

not applicable to the Respondent, for the reasons stated in the reply.

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It was further held that in the absence of agreement between the

parties, the court has no jurisdiction to entertain the application