RASHMI CEMENT LIMITED Vs. RADHA BHATTAD

JUDGEMENT

(1.) The petitioner seeks appointment of a sole Arbitrator on the basis of a Letter of Invocation dtd. 8/4/2023. The respondent failed to reply to the said letter.

(2.) The dispute between the parties arises out of a contract contained in Service Order dtd. 9/12/2021 under which the respondent was to arrange for transportation of 50,000 MT of coal required by the petitioner from Magadh to the petitioner's plant at Jhargram for a total consideration of Rs.2,15,35,000.00. Disputes arose between the parties which included the petitioner serving a legal notice on the respondent on 17/11/2022 for the amount due and the respondent raising a demand under Sec. 8 of the Insolvency and Bankruptcy Code (IBC), 2016 on the petitioner alleging that the petitioner had failed to make full and complete payment of the invoices raised in connection with the Service Order. Learned counsel appearing for the parties, however, have raised certain preliminary questions on points of law which are required to be dealt with and answered.

(3.) The objection taken on behalf of the respondent is primarily on the ground that the respondent is an MSME or rather an entity defined under Sec. 2 of the Micro, Small and Medium Enterprises Development (MSMED) Act, 2006 and that the respondent should accordingly get the protection of the 2006 Act. It is also the stand that the petitioner, as the buyer who placed the Service Order on the respondent for transport of 50,000 MT of coal for a consideration of Rs.2.15 crores, was also under an obligation to make a reference to the Micro and Small Enterprises Facilitation Council under the provisions of the MSMED Act. Learned counsel appearing for the respondent/supplier relies on Sec. 18(1) of the 2006 Act to urge that any party to a dispute may make a reference to the Council which means that the petitioner had an equal obligation to approach the Council for relief.