JUDGMENT

1. The Petitioner has approached this Court challenging a decision dated 02.05.2022 passed by the Micro and Small Enterprises Facilitation Council/Respondent No.2 herein, accepting the reference of dispute raised by Respondent No.3 against the Petitioner under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as the 'MSME Act') in Case No. 724/MSME/DCNW/2021 and further referring the dispute in the said case to Respondent No.1/Delhi International Arbitration Centre (DIAC).

2. The case of Respondent No.3, who is the Claimant before the Delhi International Arbitration Centre, is that the Claimant was registered as a small enterprise under the MSME Act vide Udyog Aadhar Registration Certificate dated 14.11.2018 and got himself registered as micro enterprise vide Udyam Registration Certificate dated 12.10.2020.

3. It is stated that on 19.08.2006, Respondent No.3 submitted quotation for the construction for the balance work of the telephone exchange building at Keshav Puram, Delhi vide letter dated 18.09.2006. It is further stated that the Petitioner vide letter dated 04.09.2006 had requested the Delhi Development Authority (DDA) to extend the time for construction of the telephone exchange over the said plot.

4. It is stated that a Letter of Intent for Architectural Consultancy Service in respect of construction of the balance work of the telephone exchange building at Keshav Puram was given to Respondent No.3/Claimant. It is stated that the consultancy fee for the said services was settled at 2.95% of the estimated cost of the project and for this purpose Respondent No.3 was requested to submit an irrecoverable performance bank guarantee of Rs.1,69,920/-. Subsequently, a Letter of Award was issued on 30.09.2009. Thereafter, the architectural drawings submitted by Respondent No.3.

5. Bills were being raised by Respondent No.3 for the work done. In the interregnum, the plot allotted to the Petitioner was cancelled. The DDA agreed to restore the allotment of the said plot and granted an extension of three years for construction on 05.08.2016.

6. It is stated that revised building plans and revised estimates were sent by Respondent No.3 to the Petitioner. The first RA bill dated 08.08.2018 for a sum of Rs.55,80,311/- was submitted to the Executive Engineer (Civil)

North, MTNL for the project cost of Rs.80,15,38,516/-. The last of the RA bills on record is dated 12.05.2022 for the sum of Rs. 1,33,23,786/-.

7. Since the money was not being paid, Respondent No.3 approached the MSME Council for reference of the dispute to arbitration claiming a total sum of Rs.2,15,96,273.86/- towards non-payment of the RA bills of 2007 and 2022. In this regard, a table has been given in the Statement of Claims filed by Respondent No.3 showing the amount of money due and payable.

8. Respondent No.3 thereafter approached the MSME Council by filing an application under Section 17 for referring the dispute regarding non- payment of dues by the Petitioner to Respondent No.3 which were referred to the Respondent No.1/DIAC. A claim statement has been filed before DIAC for a sum of Rs.1,59,62,436.83/- which is the principal amount due along with interest.

9. The Petitioner has approached this Court stating on the day the contract was entered into between the parties, the Petitioner was not an MSME and, therefore, Respondent No.2 could not have entertained the request for referring the dispute to the DIAC for arbitration.

10. On 07.11.2023, learned Counsel for the Respondents appeared on advance notice.

11. Learned Counsel for the Petitioner contends that it is now well settled that the benefit of the MSME Act cannot be claimed if the person claiming the benefit under the said Act is not registered as an MSME. Reliance is made by the Petitioner on the judgment of the Apex Court in Silpi Industries & Ors. v. Kerala State Road Transport Corporation & Anr., 2021 (18) SCC 790 and the judgment of the Coordinate Bench