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TMI Blog2019 (9) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... within its power to receive reference under Section 18(2), which provides that the council shall itself either conduct conciliation or seek assistance of any institution or centre providing for alternate dispute resolution services - In the instant case, in exercise of powers under Section 18(2), the council came to conclusion that the council itself is not in a position to reconcile the dispute and therefore, was left with option to refer the conciliation involved under Section 18(3). The impugned order appears to be in consonance with the requirements of relevant provisions of the MSME Act - Petition dismissed. - R/SPECIAL CIVIL APPLICATION NO. 11169 of 2018 - - - Dated:- 9-9-2019 - HONOURABLE MR. JUSTICE A.Y. KOGJE MR HM PARIKH, SENIOR ADVOCATE assisted by M/S.RASESH PARIKH and HEMANG PARIKH for the Petitioner(s) No. 1 MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 MR MITUL SHELAT with MR RUTUL P DESAI(6498) for the Respondent(s) No. 2 MR GM AMIN(124) for the Respondent(s) No. 3 ORAL ORDER 1. This petition is filed under Article 226 of the Constitution of India for quashing and setting aside order dated 30.06.2018 (Annexure-A) passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.2. It is submitted that reference under section 18 is competent only if condition under section 17 is satisfied i.e. if there is relation of supplier and buyer between the parties. In the case of hand, without admitting the fact that Respondent No.2 is supplier within meaning of the Act, there is no relation between Respondent No.2 and Petitioner much less that of buyer and supplier. 2.4 It is submitted that the order is a nonspeaking order. It is cardinal rule of the law that quasi-judicial authority exercising its function must pass speaking order. In the facts of the present case, the Petitioner has filed detailed response contesting issuance of notice by Respondent No.1. It was incumbent upon Respondent No.1 to decide every contention raised by Petitioner failing which impugned order is non-speaking and untenable. 2.5 It is submitted that Respondent No.2 is alien as far as dispute between Petitioner and JV. It is submitted that JV and Respondent No.2 are two independent legal entities and in a contract made by JV with third parties, Respondent No.2 has no privity. In the facts of the present case, Respondent No.2 has no privity of contract with Petitioner and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being without jurisdiction, as Respondent No.1 is authority prescribed by State Government under the provisions of the Act. In fact, at page 211, in an application before Respondent No.1, Respondent No.2 states that contract dated 08.08.2014 was entered between Petitioner and AquafilWintech JV (here AquafilWintech JV is defined as Project company (refer page 210). Thus, in the words of Respondent No.2 before Respondent No.1, the contract dated 08.08.2014 is between Petitioner and AquafilWintech JV. 2.9 It is further submitted that the proceedings of arbitration referred by Respondent No.1 are subject to provisions of the Arbitration and Conciliation Act, 1996 as per Sec.18 of the Act. Sec.7 of the Arbitration and Conciliation Act, 1996 states that there has to be written agreement between the parties. The provisions of the Act by operation of law presumes about written agreement in view of relationship of buyer and supplier. In the facts of the present case, since relationship of supplier and buyer is lacking between Petitioner and Respondent No.2, there is no fulfillment of mandatory condition of Sec.7 of the Arbitration and Conciliation Act, 1996. 2.10 It is further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arbitration is received by the petitioner and Resp.-2 through impugned order dated 30.6.2018, as well as again a letter dated 6.7.2018 is issued by Resp.-1 G.C.C.I., referring the dispute to G.C.C.I. for arbitration, and thereafter G.C.C.I. communication dated 20.7.2018 communicating to the petitioner and Resp.-2, inviting the parties to resolve the issues at GCCI-ADRC, amounts to commencement of arbitration proceeding under Section 21 of the Act and therefore, Section 5 of the Arbitration Conciliation Act, 1996, will come into play which restricts the judicial intervention wherein notwithstanding anything contained in any other law for the time being in force in the matter governed by this part, no judicial Authority shall intervene except where so provided in this part . In view of above, the present petition is required to be rejected on the ground of bar that has been provided under Section 5 of the Arbitration Conciliation Act, 1996. 3.3 It is submitted that it appears that the sole contention raised in the memo of petition by the petitioner is on the ground that Aquafil-Wintech JV and respondent No.2 are two separate legal entity and the respondent No.2 has no privi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No.2 are separate entities, by drawing attention of the Court to the addresses mentioned of the respective parties being different. 6. Having heard learned Advocates for the parties and having perused documents on record, it appears the petitioner entered into an agreement with M/s.Aquafil- Wintech JV, a joint venture of Aquafil Polymers Co. Pvt. Ltd., i.e. respondent No.2 and Wintech Engineering Pvt. Ltd. In respect of Work Order No.JWIL/GU-1/CS/14054/PH dated 08.08.2014, on Turnkey basis. The said work order related to procurement of Design, Supply, installation and Commissioning of Intake Facilities, Transmission Mains, Water Treatment Plant and Reservoir for North Zone [Contract package No.C-01] including 5 years of operation and Maintenance of JICA funded Guwahati Water Supply Project. The completion period of the contract for the work other than operation maintenance (O M) service was 28 months from the commencement date. Thereafter the JV was obliged to render O M service for 5 years. The total contract value was ₹ 79.47 Crore for EPC and O M. 7. In the subcontract agreement on back to back basis executed on 08.08.2014, the party to the agreement as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Aquafil Polymers Co. Pvt. Ltd. and Wintech Engineering Pvt. Ltd., both covered under the MSME Act independently. Section 2(d) of the MSME Act defines buyer to mean whoever buys any goods or receives any services from a supplier for consideration. Section 2(n) of the MSME Act defines supplier and reads as under:- 2(n) supplier means a micro or small enterprise, which has filed a memorandum with the authority referred to in sub-section (1) of section 8, and includes,- (i) the National Small Industries Corporation, being a company, registered under the Companies Act, 1956 (1 of 1956); (ii) the Small Industries Development Corporation of a State or a Union territory, by whatever name called, being a company registered under the Companies Act, 1956 (1 of 1956); (iii)any company, co-operative society, trust or a body, by whatever name called, registered or constituted under any law for the time being in force and engaged in selling goods produced by micro or small enterprises and rendering services which are provided by such enterprises; 9. Considering the relationship between the petitioner and the respondent No.2 based on the agreement referred to hereinabove, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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