IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2023 CORAM THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY W.A.No.677 of 2023 Bharat Heavy Electricals Limited Power Sector Western Region Rep. by its General Manager and Head Sanjeev Kumar Agarwal No.345, Kingsway, Nagpur 440 001. .. Appellant Vs.

1. The Chairman Micro Small Enterprises Facilitation Council Rep. by its Regional Joint Director of Industries and Commerce Thiru-vi-ka Industrial Estate Guindy, Chennai 600 032. 2. ICS Engineering Limited Rep. by its Director No.144, Shaila Villa, Thomas Street Ganapathy Nagar, Alapakkam Porur, Chennai 600 116 Also at No.3A, 3rd Floor, Pushkar Soundarya Enclave, Block No.H65 East Avenue Road, Periyar Nagar Korattur, Chennai 600 080.

3. The Hon'ble Presiding Arbitrator Madras High Court Arbitration Centre High Court, Parry's Corner George Town, Chennai 600 108. .. Respondents Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 03.01.2023 made in W.P.No.6216 of 2021.

For the Appellant : Mr.K.Harishankar For the Respondents : Mr.R.Rajesh for Respondent-2 Not ready in Notice for Respondent-1 JUDGMENT (Delivered by the Hon'ble Chief Justice)

We have heard Mr.K.Harishankar, learned counsel for the appellant and Mr.R.Rajesh, learned counsel for the second respondent.

2. It appears that a contract was entered into between the appellant and the second respondent. According to the appellant, the contract was in the nature of works contract. The second respondent disputes the same before this Court. There appears to be some dispute between the parties. The second respondent approached the Micro Small Enterprises Facilitation Council under the provisions of Micro, Small and Medium Enterprises Development Act, 2006. On or about 09.06.2017, MSE Facilitation Council passed an order that “the conciliation did not succeed as the matter involves intricate engineering issues of contract management. Arbitration by a professional body is needed. Accordingly, both sides agreed for nomination of the Madras High Court Nomination Centre for the arbitration process to resolve the issue. The Facilitation Council ordered accordingly.”

3. It appears that thereafter, the arbitration proceedings commenced. The first hearing before the Arbitrator was held on 21.12.2020. The appellant, thereafter, filed a writ petition bearing No.6216 of 2021 on 05.03.2021 on the ground that the provisions of the Act of 2006 could not have been invoked as the contract between the parties is in the nature of works contract.

4. The learned Single Judge disposed of the writ petition under the impugned order observing that the matter has been referred to arbitration with the consent of the parties; further, the contract governing the parties also provides for such reference to arbitration; the second respondent has also already invoked the arbitration clause by issuing notice in the year 2013 and the appellant has also participated in the said arbitration proceedings; and now, the appellant cannot challenge the impugned order at this belated stage and that too, when the arbitration proceeding is in the final stage. Aggrieved thereby, the present appeal.

5. Learned counsel for the appellant strenuously contends that it is not a case that the appellant consented for the appointment of the Arbitrator. It was also not conclusively held that the conciliation has failed. In fact, the appellant had appeared before the Council and sought dates. However, the appellant was not given an opportunity and the matter was referred to arbitration.

6. Learned counsel further submits that mere consent for appointment of an Arbitrator would not denude the right of the appellant to agitate about the lack of inherent jurisdiction. Reference is made to the judgment of the Apex Court in the case of Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd.

[(2019) 17 SCC 82]

7. Learned counsel further submits that the MSME Act does no