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TMI Blog2022 (4) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... at Bonaduz, Switzerland and is a manufacturer and supplier of critical care ventilation solutions for a variety of patient segments, applications and environments across the world. According to the respondent, it has its own consultants, engaged in India, who facilitate the installation of their equipment and undertake related ancillary work. That the appellant herein which provides consultancy services, approached the respondent-Company and requested to be associated with the Company in implementation of their projects in India. One HLL Infra-Tech Services Limited, a Nodal Agency of the Government of India, floated a tender dated 20.08.2018 to purchase/procure 1186 high end ventilators and other medical equipment to be supplied to various hospitals/medical colleges/departments across India. The respondent also participated in the said tender by offering its bid through its authorized local agent, M/s Medelec Health Care Solutions. The tender was awarded in favour of the said Medelec Solutions. That thereafter the appellant and the respondent entered into a Consulting Agreement on 10.02.2020, with a restricted term of six months, agreeing that the appellant herein shall act as a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chairman of the Council and contended that they are a company that is based in Switzerland and therefore MSME Act shall not be applicable to companies located outside country. It was also stated that the respondent has no office in India more particularly in New Delhi as mentioned in the complaint/notice. On 04.11.2020 the Council sent Form 2 notice calling for statement of defence to the Respondent herein. One another notice dated 12.11.2020 was sent by the Council. Thereafter a notice for a conciliation meeting dated 23.11.2020 was served upon the respondent and the meeting was scheduled on 28.11.2020. Thereafter the respondent filed Writ Petition No. 21623 of 2020 before the High Court challenging the legality and validity of the aforesaid notices. By judgment and order dated 20.04.2021, the learned Single Judge allowed the said writ petition and set aside the notices issued by the Council by observing that the Council has no jurisdiction to resolve the dispute between the parties. That the appellant herein challenged the judgment and order passed by the learned Single Judge in Writ Appeal No. 201 of 2020 before the Division Bench. By the impugned judgment and order the Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal writ petitioner to appear before the Council for conciliation and thereafter on failure for arbitration and the issue with respect to jurisdiction ought to have been left to the Arbitrator. 5. Shri Shyam Divan, learned Senior Advocate appearing on behalf of the respondent has supported the judgment and order passed by the learned Single Judge as well as that of the Division Bench holding that with respect to the dispute between the appellant and the Respondent No.1 the Council has no jurisdiction under Section 18 of the MSME Act. 5.1 Shri Divan, learned Senior Advocate has taken us to the various definitions under Section 2 of the MSME Act more particularly the definition of "buyer" and "suppliers". He has also taken us to Section 18 of the MSME Act. 5.2 Relying upon the above provisions it is vehemently submitted by Shri Divan, learned Senior Advocate appearing on behalf of Respondent No.1 that in the present case the Respondent No.1 - buyer is having registered office in Switzerland. It is submitted that even the address of the Respondent No.1 mentioned in both the Agreements dated 10.02.2020 and 24.08.2020 is also Switzerland. It is submitted that therefore it is righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered by the appellant and doing business in India, thereafter it will not be open for Respondent No.1 to contend that with respect to the dispute between the appellant and the respondent, the Council would have no jurisdiction under the MSME Act. However, while considering the main issue whether the parties shall be governed by the MSME Act or not, the relevant clause under the Agreement is required to be considered which reads as under: "9. CHOICE OF LAW This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of India. The parties agree to resolve their differences, disputes, if any, mutually, within 30 days of the initiation of the dispute which can be extended by the mutual consent of the parties, if necessary. In the event the parties are not able to resolve the differences by way of the said mutual dialogues, they are at a liberty to initiate appropriate actions as per law." 8.2 It is not in dispute that the contract/agreement between the appellant and the respondent has been executed on 24.08.2020. Therefore, the laws of India applicable at the time of contract/agreement shall be applicable and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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