- (1.) HEARD counsel for the appellant -writ petitioner and also the party respondent who was the complainant before the Council. We are concerned with the special enactment. The Micro, Small and Medium Enterprises Development Act, 2006 which indicates how a micro small and medium enterprise if involved in a litigation has to be dealt with. It is not in dispute on the complaint of the party respondent, the West Bengal State Micro and Small Enterprises Facilitation Council, (hereinafter referred to as Council) took up the matter to exercise the powers bestowed upon them under the aforesaid Act of 2006. The impugned order is Annexure D at page 53 of the paper book. Apparently reading of the said order would indicate that initially conciliation was attempted on the part of the Council which ultimately resulted in impugned order dated 10 -2 -2012. It is also not in dispute, this order of 10 -2 -2012 came to be challenged only in the year 2014 when the party respondent/complainant attempted to execute the same as an award. In order to appreciate the contentions raised, it would be just and proper to refer to section 18 of the Act of 2006 which indicates procedure to be adopted by the Council while proceeding with the conciliation and if it was to deviate from conciliation to arbitration proceeding and the same reads as under: "18. Reference to Micro and Small Enterprises Facilitation Council. - -(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitation Council. (2) On receipt of a reference under sub -section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of 7 that Act. (3) Where the conciliation initiated under sub -section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer to it any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in sub -section (1) of section 7 of that Act."
(2.) IT is not in dispute, by virtue of sub -section (2) of section 18, conciliation was attempted by the Council initially on the reference of the complaint made by the party respondent. As it appears from the last paragraph of the impugned order at page 53, on 4 -11 -2011 the Council took up the matter for conciliation and heard representatives and learned advocate appearing for the buyer -unit in the meeting. Though it says, the Council perused all the documents and decided to give an award in the next meeting, its intention to give an award in the next meeting is not clearly disclosed. Was it made on 4 -11 -2011? Was it indicated in the proceedings recorded in the meeting on 4 -11 -2011 or they just reflected such intention in the award impugned dated 10 -12 -2012? It is also pertinent to mention that once the conciliation fails, there has to be an order of terminating the conciliation and intimation of initiation of arbitration proceedings to the opposite party so as to allow the parties to know the intention of the Council that conciliation proceedings initiated on the reference made by the complainant was unsuccessful, therefore, they would proceed with the matter in accordance with the provisions of the Arbitration and Conciliation Act, 1996, as indicated in sub -section (3) of section 18 of the Act of 2006.
(3.) LEARNED Judge till paragraph 14 of the impugned order discussed several other issues, that is, another litigation pertaining to the very appellant but ultimately opined that the Council did not proceed with the matter in accordance with the provisions contained in section 18 of the 2006 Act. According to the learned counsel for the appellant, in the absence of noncompliance of the procedure several defects have occurred in the impugned order and according to him, the outcome of the impugned order is an award which is non -est in the eye of law. He further contends, if it is non -est in the eye of law, he could not have preferred an application under section 34 of the Arbitration and Conciliation Act, 1996 challenging the award.;