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4 For short, “A&C Act”.

6. Another Division Bench of this Court in Gujarat State Civil Supplies Corporation Limited v. Mahakali Foods Private Limited (Unit 2) and Another,5 without noticing the judgment in Jharkhand Urja Vikas Nigam Limited (supra), observed that the specific non-obstante clauses in sub-sections (1) and (4) of Section 18 of the MSMED Act have the effect of overriding any other law for the time being in force, including the A&C Act, and, consequently, the MSEFC can act as a conciliator, and thereupon itself take up the dispute for arbitration or refer it to any institution or centre for such arbitration. This would be valid, despite Part III of the A&C Act comprising Sections 65 to 81 being applicable to conciliation in terms of sub-section (2) of Section 18 of the MSMED Act. In other words, there is no bar on the MSEFC acting as a conciliator and, thereupon, acting as an arbitrator even when Section 80 of the A&C Act states that unless otherwise agreed by the parties, the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject matter of the conciliation proceedings; and the conciliator shall not be presented by the parties as a witness in the arbitral or judicial proceedings. 6 It was also held that the provisions relating to conciliation, and thereupon, arbitration in the MSMED Act being statutory in nature, would override an arbitration agreement as contracted by the parties. The 5 (2023) 6 SCC 401.

 On 14.10.2014, MSEFC, M/s Unicon Engineers was directed to produce documentary evidence in support of its case and to rectify the issues with the ESPs.

 MSEFC on 04.06.2016, held that this was the fourth hearing of the case, and adequate opportunities had been given to TANCEM, and the council was of the opinion that the conciliation proceedings had  failed. Accordingly, M/s Unicon Engineers was free to approach the MSEFC for arbitration. Sections 15 and 16 of the MSMED Act are simply quoted by the MSEFC to issue directions to TANCEM to pay Rs.39,66,144, along with the interest. The relevant portion of the order dated 04.06.2016 reads:

 On 26.09.2016, M/s Unicon Engineers sent a letter to MSEFC requesting to reject the petition filed by TANCEM on the grounds that it was barred by limitation and that TANCEM had not furnished 75% of the amount as pre-deposit, as mandated by Section 19 of the MSMED Act.

 TANCEM filed a detailed reply on 06.10.2016 qua the objections raised by M/s Unicon Engineers. Similar objections were again raised by M/s Unicon Engineers to the response filed by TANCEM.   Thereafter, MSEFC passed an order dated 25.10.2016 dismissing the recall petition on grounds of delay, objections raised by M/s Unicon Engineers and lack of provision to recall the award.  On 16.12.2016, M/s Unicon Engineers filed an execution petition before the High Court of Judicature at Madras claiming an amount of Rs.5,88,88,591/- in terms of the order passed by the MSEFC.  On 31.12.2016, TANCEM filed a petition under Section 34 of the A&C Act before the High Court of Judicature at Madras to set aside the award passed by MSEFC and to direct M/s Unicon Engineers to pay the amount due for the loss incurred towards various heads including interest and damages.

23 (2021) 12 SCC 477.

 (iii) Whether the members of MSEFC who undertake conciliation proceedings, upon failure, can themselves act as arbitrators of the arbitral tribunal in terms of Section 18 of the MSMED Act read with Section 80 of the A&C Act?

The first and second question will subsume the question of when and in what situation a writ petition can be entertained against an order/award passed by MSEFC acting as an arbitral tribunal or conciliator.