Reserved On : 08/10/2024 Pronounced On : 24/12/2024 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1728 of 2022 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2022 In R/FIRST APPEAL NO. 1728 of 2022 FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE PRANAV TRIVEDI ==========================================================

Approved for Reporting Yes No ==========================================================

UTTAR GUJARAT VIJ COMPANY LIMITED Versus GUPTA POWER INFRASTRUCTURE LIMITED ==========================================================

Appearance:

MR. MAULIK G. NANAVATI with MS. MANVI DAMLE AND MR. KISHAN PATEL FOR NANAVATI & CO.(7105) for the Appellant(s) No. 1 MR SAURABH G AMIN(2168) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE PRANAV TRIVEDI

CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

The present appeal is directed against the judgment and order dated 5.4.2022 passed by the Commercial Court, 5th Additional District Judge, Mehsana in rejecting the application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Arbitration Act, 1996’) challenging the arbitral award dated 30.07.2016 passed by the Micro, Small and Medium Enterprises Facilitation Council (MSMEFC) in MSMEFC Case No. 26 of 2014. The application under Section 34 has been rejected on the ground that the Court at Mehsana has no jurisdiction to try, entertain and dispose of the application, inasmuch as, the territorial jurisdiction to challenge the MSME Facilitation Council’s award is with the Court in the State of Odisha as the seat of MSMEF Council would be the seat of arbitration in the spirit of Section 18 read with section 24 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as ‘the MSMED Act, 2006).

2. It was held by the Commercial Court that the seat of arbitration is fixed by virtue of Section 18 of the Act’ 2006 at a place where MSMEF Arbitrator has jurisdiction, which is the place where supplier is located. The location of the supplier being at Cuttack, Odisha, the District Court at Cuttack, Odisha alone has jurisdiction to entertain the application under Section 34 of the Arbitration Act’ 1996 to the exclusion of all other Courts by virtue of Section 18 and 24 of the MSMED Act’ 2006.

3. Mr. Maulik G. Nanavati, the learned advocate appearing for the appellant invited attention of the Court to the Clauses 44 and 45 of the contract entered into between the parties, which read as under:-

“44. Jurisdiction:- All questions, disputes or differences arising under out of or in connection with the tender/contract, if concluded, shall be subject to the exclusive jurisdiction of the Court under whose jurisdiction the place from which the tender/acceptance of tender is issued, is situated.”

“45. Arbitration :- All questions, disputes or differences whatsoever which may at any time arise between the parties to this agreement touching the agreement or subject matter thereof, arising out of or in relation there to and whether as to construction or otherwise, shall be referred to the decision of this Sole Arbitrator, appointed by the Chairman, UGVCL, for that purpose, who shall be a retired High Court Judge or retired District and Sessions Judge, and the decision of the said Arbitrator shall be final and binding upon the parties. Reference to the Arbitration shall be governed by the provisions of Indian Arbitration and Conciliation Act, 1996 as amended from time to time and the rules made thereunder.”

4. It was argued that by virtue of Clause 44 read with Clause 45, only the Court at Mehsana was having jurisdiction to deal with all questions, disputes or differences arising out of the or in connection with the tender/contract. The exclusive jurisdiction is c