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Judgment
Arindam Sinha, J
W.P.(C) No.36051 of 2021 & I.A. No.16732 of 2021
Mr. Nanda, learned senior advocate appears on behalf of petitioner and submits, under challenge is notice dated 24th September, 2021 issued by opposite party no.1 under section 18 of Micro, Small and Medium Enterprises Development Act, 2006 (MSMED). He submits, negotiation between opposite party no.2 and his client for entering into the contract was held on 29th August, 2018. That negotiation became a contract by issuance of work order dated 11th March, 2019 carrying jurisdiction clause 2, to give civil Courts, in Bhubaneswar and High Court of Orissa to have sole and exclusive jurisdiction. He demonstrates acceptance of the work order including its terms and conditions by drawing attention to page-2 in the petition filed by opposite party no.2 before opposite party no.1.
He submits further, at the time of negotiation and contract opposite party no.2 initially was not registered as a small or medium enterprise and later suppressed it had obtained registration. It obtained certification on 15th November, 2019 having filed for it earlier on 19th October, 2018. That it had filed for obtaining such registration was not made known to his client. As such, the contract in question, if has given rise to disputes, such disputes must be adjudicated in compliance with clause 13 in the contract. He relies on ad interim orders dated 25th October, 2017 passed in W.P.(C) No.22083 of 2017, 19th October, 2019 passed in W.P.(C) No.2194 of 2019 and order dated 1st September, 2021 passed in W.P.(C) No.25114 of 2021 made by two different coordinate Benches, to pray for issuance of ad interim order restraining opposite party no.1 from proceeding any further, pursuant to impugned notice.
It is to be adjudicated whether opposite party no.2 is a supplier and there can be application of chapter 5 in MSMED Act to the contract entered into by it before it as contended by petitioner. Even though contract was by said work order dated 11th March, 2019 but submission made on behalf of petitioner that there was non-disclosure is accepted at this stage since opposite party no.2 appears to have accepted work order with the jurisdiction clause, even though it was already then registered as a medium or small enterprise.
There will be ad interim order of stay of impugned notice.
Let there be service of the petition on opposite party no.2. Petitioner will put in requisites for service by speed post with A.D. It goes without saying, opposite party no.2 will be at liberty to apply for vacating the order.
List on 20th December, 2021.
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