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(5) Every reference made under this section shall be decided within a period of ninety days from the date of making such a reference.
4. Section 18(3) is relevant, seen in the context of the dates and events in the particular case. After the completion of the preliminaries and the pleadings, the MSME Council had passed an order on 04.06.2016 holding Tancem liable to pay a sum of Rs.6,97,986/- to R1. As far as the procedure is concerned, we note that the Council has recorded failure of conciliation between Tancem and R1 as on 04.06.2016 itself. The relevant portion of the MSME order is as follows:
During the meeting held on 04.06.2016, the petitioner enterprise was represented by Thiru P.Ponram, Managing Partner. The respondent enterprise was represented by Thiru S.Kulasekarapandian, Manager (Materials), Tamilnadu Cements Corporation Limited (TANCEM). The. petitioner submitted that they had completed the Design, Detailed Engineering, prepared the drawings and submitted to the respondent. After approval of the drawings by the respondent, the petitioner submitted an invoice for Rs.l4,15,736/-. The petitioner informed that the respondent never directed the petitioner at any stage to keep the work in abeyance prior to submission of the invoice. The respondent had cancelled the order only after 5 months after submission https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/07/2025 03:30:45 pm ) of the invoice, by the petitioner. Also, the petitioner justified the expenses incurred with records. An advance of Rs.7,17,750/- was already paid by the respondent, in this regard. Balance payment due is Rs.6,97,986/-. Therefore, the petitioner pleaded that their claim of Rs.6,97,986/- is justified pleaded the council to close the hearing and pass orders directing to TANCEM Ltd to pay the balance amount of Rs.6,97,986/- with interests. petitioner pleaded that their. Since adequate opportunities were given to the respondent, the Council recorded the failure of conciliation between the petitioner and the respondents.
8. In fact, the first Bench of this Court has, on 01.08.23, also recorded the position that proceedings for both mediation and arbitration have been concluded back-to-back on the same date. No material to the contrary has been produced by Tancem to disprove this position and this is, in our view, a fatal irregularity in procedure.
9. However, this has not been challenged by R1 and only Tancem has challenged the aforesaid order belatedly. A chronicling of the remedies availed by Tancem in this regard is telling. The first was under Section 33 of the A&C Act, seeking to set aside order dated 04.06.2016. Clearly this remedy is misconceived as Section 33 enables only corrections to be made in the order or the passing of an additional award where necessary. In cases where an award has itself to be challenged, the proper remedy is under Section 34 of the A and C Act.
11. Tancem had also filed A.No.144 of 2018 in O.P.No.3400 of 2017 seeking waiver of pre-deposit. To be noted, Section 19 of the MSMED Act makes it mandatory for the appellant, not being a supplier, to deposit 75% of the decreed/awarded amount as a pre-condition to maintain the appeal filed against such award.
12. The application filed by Tancem seeking waiver of pre-deposit came to be dismissed on 06.03.2018 and Tancem was directed to deposit the amount in 3 equal instalments. There was a delay in the making of the deposit as directed and ultimately a sum of Rs.10.00 lakhs was deposited belatedly. The Original Petition ultimately came to be dismissed on 09.09.2021 as being barred by limitation.