ORDER

1. This order shall govern the disposal of both the writ petitions as both of them have arisen out of the two identical orders, both dated 7.7.2023, in two different case No. MSEFC/1697/2022 and No. MSEFC/1696/2022 arising between the same parties. For the sake of convenience, the facts are being taken from W.P. No.30511/2023. Both these petitions have been filed by the petitioner under Article 226 of the Constitution of India.

2. In brief facts of the case are that an application under Section 18(3) of the Micro Small and Medium Enterprises Development Act, 2006 (hereinafter to be referred to as “Act of 2006”) was filed by the respondent no.2/applicant Abhinav Infrabuild Pvt. Ltd on the ground that it is a registered enterprise under the MSME, and has entered into a contract with the petitioner for its composite contract for supply of goods and services which has been referred to as works contract in the agreement. After the notice was served to the petitioner/non-applicant, an application under Section 18(3) & (4) of the Act of 2006 read with Section 16(2) of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred to as “Act of 1996”) was filed by the petitioner contending that there was admittedly an agreement between the parties in respect of a works contract, i.e., to provide goods and also the services, and since the works contract is excluded from the purview of Chapter V of Section 17 of the Act of 2006, the Facilitation Council has no jurisdiction to decide the dispute between the parties. The aforesaid application was rejected by the Facilitation Council vide impugned order dated 7.7.2023 (Annexure P-1) holding that the application filed u/s.18(3) of the Act of 2006 is maintainable as according to section 17, the objective of the Act is the timely payment of the goods supplied and also the services rendered by the MSME, and in both these situations, the opposite party is required to pay the amount to MSME unit along with interest. The aforesaid order dated 07.07.2023 is under challenge before this Court.

3. Shri Vivek Dalal, learned counsel appearing for the petitioner has drawn attention of this Court to Section 17 of the Act of 2006 which provides that the recovery can be only of the amount due in respect of any goods supplied or services rendered by the supplier.

Shri Dalal, has also made special emphasis on the word “or” occurring in Section 17 to submit that either the MSME has to be supply of goods or rendering of the services, and where in a case where the goods as also the services have been rendered by the MSME it would not fall within the purview of Section 18 of the Act of 2006.

4. In support of his submission Shri Dalal has also referred to certain judgments rendered by the Hon’ble Supreme Court in the case of Dr. P.L.Adke Vs. Wardha Municipal Corporation reported as MANU/MH/2179/2021, JSW STEEL Ltd. Vs. Kamlakar Vs. Salvi reported as 2021 SCC online BOM 3113, Agrawal Panchayat Nyas Vs. M/s Protek in the High Court of M.P. (W.P.No.2339/2023), in the case of Punjab State Power Vs. Emta Coal Ltd reported as (2020) 17 SCC 93 and in the case of Deep Industries Ltd. Vs. ONGC reported as (2020) 15 SCC 706. In support of his contention the petitioner has also relied upon the decision rendered by the Supreme Court in the case of Commissioner Central Excise and Customs Vs. Larsen and Turbo Ltd. reported as (2016) 1 SCC 170.

5. Shri Manoj Munshi, learned counsel for the respondent on the other hand, has opposed the prayer and it is submitted that the petition itself is not maintainable as the petitioner has the alternative remedy available u/s.34 of the Act of 1996. In support of his contention regarding the alternative remedy, Shri Munshi has relied upon a decision rendered by the Hon’ble Supreme Court in the case of M/s India Glycols Limited and another Vs. Micro and Small Enterprises Facilitation Council Medchal