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4. Briefly stated, the relevant facts necessary to address the controversy are as under:-

4.1. BHEL had entered into a contract for setting up a Thermal Power Plant in Syria on a turnkey basis. BHEL in turn has placed purchase order dated 26.03.2013 for supply of DM Plant (subject matter of W.P. (C) 10901/2016) and purchase order dated 20.12.2016 for supply of Condensate Polishing System and other items (subject matter of W.P. (C) 10886/2016), on DRIPLEX.
4.2. BHEL's claims that on 11.06.2012, it was forced to suspend all operations relating to the thermal plant in question, including exports to Syria from India, due to Civil unrest and the advisory issued by the Indian Embassy at Damascus. Accordingly, BHEL informed all the concerned suppliers, including DRIPLEX, that the project had been put on hold.

4.4. Pursuant to the above applications, MSEFC issued a notice to BHEL on 02.11.2015 and called upon BHEL to appear before MSEFC on 23.11.2015. BHEL was also called upon to file a reply to the claims filed by DRIPLEX. In response to the aforesaid notices, BHEL filed its replies to the respective claims preferred by DRIPLEX, inter alia, disputing the liability to pay the amount claimed on account of force majure conditions. BHEL claimed that the force majeure clause as contained in the Special Conditions of Contract was applicable and, thus, BHEL was not obliged to make any payments to DRIPLEX. DRIPLEX filed rejoinders countering the contentions advanced by BHEL.

22. Section 19 of the Act also ensures a more expedient recovery by making pre-deposit of 75% of the awarded amount a pre condition for assailing the award. The benefit of this provision is not available in case of arbitrations in terms of agreements between the parties (and not by a statutory reference under Section 18 (3) of the Act).

23. In BHEL v. State of U.P. & others (Supra), a Division Bench of the Allahabad High Court had considered the case where the agreement between the disputing parties contained an arbitration clause, however, the MSEFC had decided to arbitrate the disputes under Section 18(3) of the Act. BHEL was also the petitioner in that case and, had approached the Court seeking that the proceedings before Uttar Pradesh State Micro and Small Enterprises Facilitation Council be set aside and the said Council be directed to decide BHEL's objection under Section 8 of the A & C Act (that is, that the disputes be referred to Arbitration in terms of the agreement between the parties therein). The Division Bench of Allahabad High Court had repelled BHEL's contention and held as under:-

30. There is also much merit in Mr Nandrajog's contention that BHEL had not raised any objections for referring of the disputes to arbitration under Section 18(3) of the Act and, thus, would be estopped from raising this contentions at this stage. Paragraph 3 of the replies filed on behalf of BHEL, which are similarly worded in both the cases, read as under:-

"In view of the above directions, the following reply is being submitted to the claim lodged by Driplex. However, the present reply to the claim is only a preliminary reply and BHEL reserves its right to take any other or further grounds or make further averments in case the matter is referred to Arbitration under the MSMED Act. BHEL also reserves its rights to file a Counter claim, if so advised, against Driplex in case the dispute is referred to Arbitration."