JUDGMENT

1. This matter is taken up through hybrid mode.

2. Petitioner, in this writ petition, seeks to assail the award/order dated 25th November, 2020 (Annexure-1) passed by the Micro, Small Enterprises Facilitation Council, Nagpur, Maharashtra (for brevity, ‘the Council’) in Reference No.MH/20/S/NGR/572 to 575 of 2018.

3. Mr. Panigrahy, learned counsel submits that the Petitioner is a Dealer of coir mattresses operating in the State of Odisha having its Head office at Bhubaneswar, Odisha. Opposite Party No.2, namely, M/s Aerocom Cushions Private Limited with an intention of selling its mattresses approached the Petitioner with various lucrative offers/schemes. Accordingly, Opposite Party No.2 supplied its product to the Petitioner on agreed terms and conditions and raised invoices at different points of time. A dispute arose in course of business with regard to assurances made by Opposite Party No.2 for achieving sales target. On mutual discussion, both parties agreed to resolve their disputes and differences, if any, within the jurisdiction of Bhubaneswar. Thus, the parties submitted themselves to the exclusive jurisdiction of Bhubaneswar for resolution of their dispute, if any. However, the Opposite Party No.2, allegedly made a reference under Section 18(1) of the Micro, Small and Medium Enterprises Development Act, 2006 (for brevity ‘MSMED Act’) on 13th March, 2018 before the Council at Nagpur in the State of

Maharashtra, which had no jurisdiction to entertain and arbitrate the alleged dispute under the said Act. The Petitioner received notices through auto-generated emails on various dates ranging from 15th December, 2018 to 24th September, 2020 without any option to reply. Thus, the said communications cannot be treated to be notices under the MSMED Act, as reply to the said auto-generated emails was restricted. Again, on 14th March, 2018, the Opposite Party No.2 demanded the disputed amount from the Petitioner. The same also cannot be treated to be a notice to refer the matter to Arbitrator as per Section 21 of the Arbitration and Conciliation Act, 1996 (for brevity ‘Arbitration Act’). In the said demand, Opposite Party No.2 did not disclose pendency of the Reference No.MH/20/S/NGR/572 to 575 of 2018 before the Council at Nagpur. However, the Petitioner in its reply dated 27th March, 2018, disputed the same. In the process, Opposite Party No.2 obtained an ex-parte award/order under Annexure-1. The auto-generated emails did not accompany the statement of claim and documents filed by Opposite Party No.2 before the Council at Nagapur. As such, the same is in violation of Section 24 (3) of the Arbitration Act. No conciliation as contemplated under Section 18(2) of the MSMED Act was made by the Council before proceeding for purported arbitration under Section 18 (3) of the MSMED Act.

3.1 Subsequently, Opposite Party No.2 filed Execution Petition No.31 of 2021 before learned Civil Judge (Senior Division), Commercial Court, Khurda at Bhubaneswar, which is

pending for adjudication. Upon receipt of notice in the Execution Case, the Petitioner became aware of the impugned ex-parte order/award under Annexure-1 passed by the Council at Nagpur. On its appearance, the Petitioner filed a petition under Section 47 CPC. In the said application, the Petitioner specifically stated that so-called ex-parte award put to execution is a nullity, as it was passed without following mandatory provision of law, i.e., the MSMED Act and Arbitration Act. In the meantime, said application under Section 47 CPC has already been dismissed.

3.2 It is further submitted that provisions of Sections 65 to 81 of the Arbitration Act are applicable to the disputes raised before the Council as if conciliation was initiated under Part-III of the Arbitration Act. Further, the provision under Section 21 of the Arbitration Act provides that arbitral proceeding in respect of a particular dispute shall commence on the date on which a request is made to refer the dispute for