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TMI Blog2021 (12) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... g an amount of Rs. 74,74,041/- towards the principal amount of bills and an amount of Rs. 91,59,705.02 paise towards interest. On the ground that the Appellant has not responded to earlier notices, the Council issued summons dated 18.07.2012 for appearance of the Appellant before the Council on 06.08.2012. Only on the ground that on 06.08.2012 the Appellant has not appeared, the order dated 06.08.2012 was passed by the Council directing the Appellant to make the payment to the 3rd Respondent, as claimed, within a period of thirty days from the date of the order. 3. The said order was under challenge before the High Court by way of writ petition in Civil Writ Petition No. 11657 of 2017, and same was dismissed by the learned Single Judge. An intra-court appeal preferred by the Appellant was also ended in dismissal. Hence, this appeal. 4. We have heard Sri Anup Kumar, learned Senior Standing Counsel appearing for the Appellant; Dr. Manish Singhvi, learned Senior Counsel appearing for 2nd Respondent and Sri Kailash Vasdev, learned Senior Counsel appearing for the 3rd Respondent. Having heard the counsel for the parties we have perused the impugned order and other material placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract any dispute was subject to jurisdiction of civil courts at Ranchi and the 3rd Respondent having agreed to such terms, had approached the Council in the State of Rajasthan. Thus it is submitted that the order passed by the Council is without jurisdiction and contrary to terms and conditions of the agreement. 6. Dr. Manish Singhvi, learned Senior Counsel appearing for the 2nd Respondent, i.e., Rajasthan Micro and Small Enterprises Facilitation Council has submitted that there are no grounds to interfere with the impugned order passed by the High Court. It is submitted that against the award passed by the Council on 06.08.2012, it was open to Appellant to challenge the same before the competent forum Under Section 34(3) of the Arbitration and Conciliation Act, within the specified time. It is submitted that having failed to question the award before the competent forum, the Appellant has made a belated attempt by questioning the order of the Council by way of writ petition, which was rightly dismissed by the learned Single Judge and confirmed by the Division Bench of the High Court. It is submitted that as the Appellant has not responded to the various notices/summons is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-Council constituted under provisions of MSMED Act. The 3rd Respondent has approached the Council seeking directions against the Appellant for payment of delayed bill amount along with interest under provisions of MSMED Act. Immediately after filing application by initiating conciliation proceedings, Council has issued notices and as the Appellant has not appeared summons were issued to the Appellant on 18.07.2012 for appearance on 06.08.2012. The relevant portion of the summons dated 18.07.2012 issued by the Council reads as under: Now, therefore, notice is hereby given to you to appear in person or through authorized representative before the Council on 6th August, 2012 at 3.30 P.M. or on such day as may be fixed by the Council to submit in support of the claim/dispute and you are directed to produce on that day all the documents upon which you intend to rely in support of your defense. Take note that in default of your response within the period mentioned above, the dispute shall stand terminated. Otherwise the dispute shall be heard and reconciled with a view to the settlement of dispute and in case settlement is not arrived at, the Council shall either itself act as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to act as an Arbitrator or Conciliator under this Section in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India. (5) Every reference made under this Section shall be decided within a period of ninety days from the date of making such a reference. 9. From a reading of Section 18(2) and 18(3) of the MSMED Act it is clear that the Council is obliged to conduct conciliation for which the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 would apply, as if the conciliation was initiated under Part III of the said Act. Under Section 18(3), when conciliation fails and stands terminated, the dispute between the parties can be resolved by arbitration. The Council is empowered either to take up arbitration on its own or to refer the arbitration proceedings to any institution as specified in the said Section. It is open to the Council to arbitrate and pass an award, after following the procedure under the relevant provisions of the Arbitration and Conciliation Act, 1996, particularly Sections 20, 23, 24, 25. 10. There is a fundamental difference between conciliation and arbitration. In conciliation the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laches in filing writ petition also cannot be accepted. After 06.08.2012 order, the Appellant after verification of the records has paid an amount of Rs. 64,43,488/- on 22.01.2013 and the said amount was received by the 3rd Respondent without any protest. Three years thereafter it made an attempt to execute the order in Execution Case No. 69 of 2016 before the Civil Judge, Ranchi, which ultimately ended in dismissal for want of territorial jurisdiction, vide order dated 31.01.2017. Thereafter S.B. Civil Writ Petition No. 11657 of 2017 was filed questioning the order dated 06.08.2012 before the Rajasthan High Court. In that view of the matter it cannot be said that there was abnormal delay and laches on the part of the Appellant in approaching the High Court. As much as the 3rd Respondent has already received an amount of Rs. 63,43,488/- paid by the Appellant, without any protest and demur, it cannot be said that the Appellant lost its right to question the order dated 06.08.2012. Though the learned Counsel appearing for the Respondents have placed reliance on certain judgments to support their case, but as the order of 06.08.2012 was passed contrary to Section 18(3) of the MSMED A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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