M/S. OMKAR PUBLICITY PROMOTIONS AND ANRversusM/S. NILAY ENTERPRISE

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                                                                                                Rekha Patil



                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
                                          WRIT PETITION NO. 6888 OF 2024
                      M/s. Nilay Enterprise
                      A sole Proprietorship Firm,
                      Through its sole proprietor Mrs. Sharda Anand
                      Thorat having its place of business at 9/B, 302,
                      Arunodaya CHS LTD., Tilak Nagar,
                      Chembur, Mumbai 400 089.                                        …Petitioner

                            Versus
                      1. M/s. Omkar Publicity Promotions
                        A sole Proprietorship Firm,
                        Own, Run and Operated by Mr. Arun M.
                        Shelar, Sole Proprietor, having its place
                        of business at Shop No.64, Goldfilled
                        Plaza, Sion Bandra Link Road,
                        Dharavi, Mumbai 400 017.

                      2. Micro and Small Enterprises Facilitation
                        Council (MSEFC)-MMR Region, Mumbai
                        Office of the Joint Director of Industries
                        Mumbai Metropolitan Region – 702, 7th Floor,
                        Vikas Centre, Dr. C. Gidwani Marg,
                        Chambur (East), Mumbai- 400 074.                               …Respondents

                                                    WITH
                                     INTERIM APPLICATION NO. 3071 OF 2026
                                                      IN
                                        WRIT PETITION NO. 6888 OF 2024


                        M/s. Omkar Publicity Promotions
                        A sole proprietorship owned by Mr. Arun
                        Shelar sole proprietor having its address at
                        Shop No. 64, Gold Field Plaza, Sion Bandra
                        Link Road, Dharavi, Mumbai – 400 017.        …Applicant

REKHA
PRAKASH
PATIL                 (Corrected vide order dated 24th August, 2026)
Digitally signed by                                        Page 1 of 15
REKHA PRAKASH
PATIL                                                   18th August 2026
Date: 2026.08.24
18:05:03 +0530
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  IN THE MATTER BETWEEN
 M/s. Nilay Enterprise
 A sole Proprietorship Firm,
 Through its sole proprietor Mrs. Sharda Anand
 Thorat having its place of business at 9/B, 302,
 Arunodaya CHS LTD., Tilak Nagar,
 Chembur, Mumbai 400 089.                                        …Petitioner

       Versus
 1. M/s. Omkar Publicity Promotions
   A sole Proprietorship Firm,
   Own, Run and Operated by Mr. Arun M.
   Shelar, Sole Proprietor, having its place
   of business at Shop No.64, Goldfilled
   Plaza, Sion Bandra Link Road,
   Dharavi, Mumbai 400 017.

 2. Micro and Small Enterprises Facilitation
   Council (MSEFC)-MMR Region, Mumbai
   Office of the Joint Director of Industries
   Mumbai Metropolitan Region – 702, 7th Floor,
   Vikas Centre, Dr. C. Gidwani Marg,
   Chambur (East), Mumbai- 400 074.                               …Respondents


Mr. Nikhil Jayakar with Mr. Ketan Dhavle, Ms. Urusah M. I. i/b
      Dave & Co., for the Petitioner.
Mr. Arsh Mishra, for the Respondent No.1.


                    CORAM:                SUMAN SHYAM &
                                          ADVAIT M. SETHNA, JJ.

             RESERVED ON:                 12th AUGUST, 2026.
            PRONOUNCED ON:                18th August, 2026.

JUDGMENT : (Per SUMAN SHYAM, J.)
1.     The facts of the case, as apparent from the material on

record, in a nut-shell, are that the Writ Petitioner is a Sole


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Proprietorship Firm engaged in the business of supplying bags, T-

shirts, wallets etc. to reputed brands, such as, Lee Cooper, Killer,

Lawman. The Respondent No.1 is in the business of manufacturing

promotional goods, such as bags, wallets and other items. The

Respondent No.1 had made supplies to the Petitioner, the last of

such transaction being on 7th February 2019. However, some

disputes had arisen as regards the quality of the products supplied

by the Respondent No.1 resulting in with-holding/ delay in making

payments. The Respondent No. 1 had applied for registration under

the Micro, Small and Medium Enterprises Development Act, 2006

(“the MSMED Act of 2006” for short) on 11 th February 2019 by

submitting Udyog Aadhar Memorandum. On 19th August 2020, the

Respondent No. 1 received its registration. After receiving the

registration, the Respondent No 1 had submitted an application

before the Respondent No 2, i.e., the Micro and Small Enterprises

Facilitation Council ( MSEFC) alleging delay in payment, claiming a

sum of Rs 1,45,70,071/- (Rupees One Crore Forty Five lakhs

Seventy Thousand and Seventy One) along with interest calculated

thereon for a sum of Rs 76,79,356/- ( Rupees Seventy Six Lakhs

Seventy Nine Thousand Three Hundred and Fifty Six). Reference

was made under Section 18(2) of the MSMED Act of 2006 for

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Conciliation vide Petition No.1139 of 2020. However, the

Conciliation process had failed as a result of which, the matter was

taken up for Arbitration under Section 18(3) of the Act which

process had culminated in the Award dated 30 th June 2023,

awarding a sum of Rs.1.45 Crores as principal amount and further

sum of Rs. 76 lakhs, as interest component, in favour of the

Respondent No.1. Assailing the Award dated 30 th June, 2023, the

Writ Petitioner has approached this Court by filing the instant Writ

Petition.


2.     The primary contention of the Petitioner is that the

transaction between the Writ Petitioner and the Respondent No.1

having taken place prior to its registration under the MSMED Act of

2006, the Respondent No.2 did not have any authority or

jurisdiction under the law to entertain the reference pertaining to

such dispute since the provisions of the MSMED Act of 2006 cannot

have any retrospective application. As such, the impugned Award is

a nullity in the eyes of law.


3.     According to the Petitioner, the issue raised in this Writ

Petition is squarely covered by the decision of this Court rendered




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in the case of JSW Steel Ltd. vs. Kamlakar V. Salvi & Ors. 1, wherein,

it has been held by a Division Bench of this Court that the

registration obtained under the MSMED Act of 2006 will only have

prospective effect.


4.     The Respondent No.1 has contested the Petitioner’s case by

taking the plea of maintainability of the Writ Petition on the ground

of availability of alternative statutory remedy to the Petitioner to

challenge the impugned Award.


5.     Mr. Nikhil Jayakar, learned Counsel appearing for the

Petitioner, has argued that the Award passed by the Respondent

No.2 is wholly without jurisdiction and/or authority of law

inasmuch as, the Respondent No.2 did not have the jurisdiction to

entertain a reference/application pertaining to disputes which

relate to transactions that took place prior to the registration of the

MSME Unit under the MSMED Act of 2006.


6.     According to Mr. Jaykar, the present case is not only covered

by the decision of this Court in JSW Steel Ltd. (Supra) but also by

the decisions rendered by the Hon’ble Supreme Court in Silpi


1      2021 SCC OnLine Bom 3113.

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Industries & Ors. Vs. Kerala State Road Transport Corporation &

Anr.2 and Gujarat State Civil Supplies Corporation Ltd Vs. Mahakali

Foods Pvt. Ltd. (Unit 2) & Anr.3


7.     Contending that although, the decision in the case of JSW

Steel Ltd. (Supra) is under challenge before the Hon’ble Supreme

Court, yet, there is no stay order passed by the Supreme Court.

Therefore, submits Mr. Jaykar, in view of the law laid down by the

Supreme Court in the case of Union Territory of Ladakh & Ors. vs.

Jammu and Kashmir National Conference & Ors., 4 the decision in

the case of JSW Steel Ltd. (Supra) would be binding on this Court.


8.     Mr. Arsh Mishra learned Counsel appearing for the

Respondent No.1, on the other hand, has argued that the Petitioner

has a statutory remedy against the Award and, therefore, the Writ

Petition would not be maintainable. Mr. Mishra has not disputed

the submission of the Petitioner’s Counsel to the effect that the

present case would be covered by the decision in JSW Steel Ltd.

(Supra) as well as the decisions in Silpi Industries & Ors., (Supra)

Gujarat State Civil Supplies Corporation Limited (Supra). The

2      (2021) 18 SCC 790.
3      (2023) 6 SCC 401.
4      (2024) 18 Supreme Court Cases 643

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learned Counsel has, however, argued that in NBCC (India) Limited

vs. State of West Bengal & Ors.,5 the decisions in Silpi Industries &

Ors.(Supra) and Gujarat State Civil Supplies Corporation Limited

(Supra) have been referred for re-consideration by a larger bench.

Therefore, pending decision of the larger bench, hearing in this

matter be deferred.


9.     There is no controversy in this case about the fact that the

transactions with regard to which the Respondent No.1 had raised

its claims took place prior to the date of registration of the

Respondent No.1 as an MSME Unit. The Respondent No 1 had

received its registration under the Act of 2006 on 19 th August,

2020. However, the transactions, giving rise to the dispute,

admittedly took place prior to the date of registration. As per the

law laid down in JSW Steel Ltd. (Supra) an MSME would not be

entitled to the benefit under the Act of 2006 in respect of any

transaction which took place prior to the date of registration as the

MSME.


10.     By taking note of the decision of the Division Bench of this

Court in the case of JSW Steel Ltd.(Supra), this Court had passed

5      (2025) 3 Supreme Court Cases 440

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order dated 11th June, 2024, in the present proceeding, staying the

execution of the impugned Award dated 30th June, 2023, by further

observing that the present Writ Petition should await the outcome

of the challenge laid to the judgment in JSW Steel Ltd. ( supra)

before the Supreme Court. The said SLP is still pending. However,

the judgment rendered in JSW Steel Ltd has not been stayed by the

Apex Court.


11.    It appears that the interim order dated 11 th June, 2024

passed in the present proceeding was assailed by the Respondent

No.1 by filing Special Leave Petition (Civil) Diary No (s). 58678 of

2024. The said SLP was disposed of by the Hon’ble Supreme Court

by order dated 21st February, 2025, inter alia, requiring the High

Court to take up this Writ Petition and decide the issue at the

earliest. It further appears that the order dated 21 st February, 2025,

was passed by the Hon’ble Supreme Court being conscious of the

fact that the decision in the case of JSW Steel Ltd. is under

challenge in a proceeding pending before the Supreme Court. The

learned Counsel for both the sides have candidly submitted that the

out-come of the present proceeding would depend on the out-come

of the SLP pending against the decision in JSW Steel Ltd. (Supra).


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As noted above, the learned Counsel for the Respondent No 1 has

also requested for deferment of this proceeding on such ground.

However, in view of the order dated 21 st February, 2025, this Court

would be under a bounden duty to proceed with the Writ Petition

and pass final order therein notwithstanding the pendency of the

SLP before the Supreme Court against the JSW Steel Ltd. matter.


12.    In the case of JSW Steel Ltd. (Supra), a Co-ordinate Bench of

this Court, while dealing with the issue as to whether, registration

obtained under the MSMED Act of 2006 can operate retrospectively

covering transactions which took place before the registration of

the Unit, had made the following observations in paragraph No.

34.4, which are reproduced herein-below for ready reference:-


        “34.4. From the above, we find that Supreme Court has
        clarified that if any registration under the MSMED Act is
        obtained, the same will be prospective and would apply to
        supply of goods and services subsequent to registration but
        cannot operate retrospectively. According to the Supreme
        Court, any other interpretation of section 8 would lead to
        absurdity and confer unwarranted benefit in favour of a party
        not intended by legislation.

13.    While considering the issue of maintainability of the Writ

Petition assailing the Award passed by the Micro and Small

Enterprises Facilitation Council, Konkan Region, Thane, in




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somewhat identical fact situation, the Division Bench, in the case of

JSW Steel Ltd. (Supra) has further observed, as follows:-


       “45. The above are jurisdictional facts which were absent before
       respondent No.2 could assume jurisdiction. In the absence of
       such jurisdictional facts, respondent No.2 could not have
       proceeded under section 18(3) of the MSMED Act and could not
       have passed the impugned order (award) dated 08.05.2015. As
       held by the Supreme Court in Arun Kumar (Supra), in the
       absence of the jurisdictional facts, respondent No.2 had
       rendered itself coram non judice. Any order or award passed by
       an authority which is rendered coram non judice is a nullity and
       can certainly be interfered with by the High Court under Article
       226 of the Constitution of India. Therefore, reverting back to our
       discussions made in paragraph 37 of this judgment, from an
       analysis of the judgments of the Supreme Court in Patel
       Engineering (Supra) and Modern Industries (Supra) the position
       becomes very clear. While the High Court in exercise of its
       jurisdiction under Article 226 of the Constitution of India would
       not entertain any and every order passed by an Arbitral
       Tribunal, certainly the High Court would entertain an order or
       award passed by a statutory Arbitral Tribunal which is a nullity
       or when the Tribunal had rendered itself coram non judice.”

14.    From the above, it is apparent that the Writ Petition filed by

the Petitioner in JSW Steel Ltd. assailing the Award of the

Facilitation Council, under identical fact situation, has been

entertained by the Court by giving sufficient justification, which

would be applicable in the facts of the present case as well.


15.    Our attention has also been invited to two subsequent

decisions of the Hon’ble Supreme Court dealing with the same

issue. In the case of Silpi Industries & Ors. (Supra), the Hon’ble

Supreme Court, while dealing with an issue of similar nature, has

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observed that, in order to seek benefit of the provisions of the

MSMED Act of 2006, the seller would have to be registered under

the provisions of the MSMED Act of 2006 as on the date of entering

into the contract. Supplies made pursuant to a contract entered

before the registration of the Unit under the provisions of the

MSMED Act of 2006 would not be eligible to the benefit of an

entity as contemplated under the MSMED Act of 2006. Having held

as above, the following observations were made in para 44, which

are reproduced herein-below for ready reference:-


        “44. The appellant cannot become micro or small enterprise or
        supplier, to claim the benefits within the meaning of the
        MSMED Act, 2006,, by submitting a memorandum to obtain
        registration subsequent to entering into the contract and supply
        of goods and services. If any registration is obtained, same will
        be prospective and applies for supply of goods and services
        subsequent to registration but cannot operate retrospectively.
        Any other interpretation of the provision would lead to
        absurdity and confer unwarranted benefit in favour of a party
        not intended by legislation.”

16.    In another subsequent decision rendered in the case of

Gujarat State Civil Supplies Corporation Limited (Supra), similar

view was expressed by the Supreme Court on the above issue. The

observations made in paragraph 52.6 are relevant for this case and

therefore, are been quoted herein-below:-


        “52.6 A party who was not the “supplier” as per the definition
        contained in Section 2(n) of the MSMED Act, 2006 on the date


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        of entering into contract cannot seek any benefit as the
        “supplier” under the MSMED Act, 2006. If any registration is
        obtained subsequently the same would have an effect
        prospectively and would apply to the supply of goods and
        rendering services subsequent to the registration.”

17.    From a careful analysis of the ratio laid down in the

aforementioned decisions, it is clear that a MSME Unit would not

be entitled to the benefits of the provisions of the MSMED Act of

2006 pertaining to transactions that took place prior to the date on

which the Unit had obtained registration under the Act. If that be

so, in the facts of the present case, as noted above, the Respondent

No.1, in our view, could not have invoked the provisions of MSMED

Act of 2006 by making an application to the Respondent No.2 with

regard to claims which were admittedly based on transactions

which took place on date/dates, which were prior to the

registration of the Unit as the MSME Unit under the MSMED Act of

2006. We are, therefore, of the un-hesitant opinion that impugned

Award dated 30th of June 2023 is without jurisdiction and hence, a

nullity in the eyes of law. The same is accordingly declared so.


18.    In so far as the decision in the case of NBCC (India) Limited

vs. State of West Bengal & Ors. 6 is concerned, it is correct that a

Division Bench of the Supreme Court has taken a somewhat

6      (2025) 3 Supreme Court Cases 440

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contrary view on certain issues dealt with in those previous

decisions and the matter has been referred to the larger Bench.

From an examination of the judgment in the case of NBCC (India)

Limited (Supra), we find that the question of applicability of the

MSMED Act of 2006 to transaction which took place prior to the

registration of the MSME unit was also an issue there-in. In NBBC

(India) Limited (Supra), the Supreme Court has observed that the

decisions in Silpi Industries & Ors.(Supra) and Gujarat State Civil

Supplies Corporation Limited (Supra) as well as two other decision

in Vaishno Enterprise7 and Nitesh Estate8 dealing with the same

issue, cannot be considered to be binding precedents. The matter

has, therefore, been referred to the larger bench on account of the

compelling need to ensure clarity and certainty about applicable

principles on the subject. It was, however, observed in paragraph 3

that the issues involved in Silpi Industries & Ors.(Supra) and

Gujarat State Civil Supplies Corporation Limited (Supra) were very

different from the issues that have arisen in NBBC (India) Limited.

(Supra). We also find that although, the Division Bench in NBBC

(India) Limited (Supra), has doubted the correctness of the law laid


7      (2024) 12 SCC 214.
8      (2024) 12 SCC 221.

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down in Silpi Industries & Ors.(Supra) and Gujarat State Civil

Supplies Corporation Limited (Supra) rendered earlier by the

Benches of equal strength, yet, those decisions have not been over-

ruled nor is there any stay order pertaining to the decision of this

Court in JSW Steel Limited(Supra).


19.     The above circumstances give rise to a pertinent question as

to whether, in view of the observations made in NBBC (India)

Limited (Supra), the decisions in the case of Silpi Enterprises

(Supra), Gujarat State Civil Supplies Corporation Limited (Supra)

can have any relevant bearing in the present case. The above issue,

in our considered opinion, would stand resolved in the light of the

observations made in paragraph 35 in the case of Union Territory of

Ladakh (Supra), which are re-produced here-under :-


        “35. We are seeing before us judgments and orders by High
        Courts not deciding cases on the ground that the leading
        judgment of this Court on this subject is either referred to a
        larger Bench or a review petition relating thereto is pending.
        We have also come across examples of High Courts refusing
        deference to judgments of this Court on the score that a later
        Coordinate Bench has doubted its correctness. In this regard,
        we lay down the position in law. We make it absolutely clear
        that the High Courts will proceed to decide matters on the basis
        of the law as it stands. It is not open, unless specifically
        directed by this Court, to await an outcome of a reference or a
        review petition, as the case may be. It is also not open to a
        High Court to refuse to follow a judgment by stating that it has
        been doubted by a later Coordinate Bench. In any case, when
        faced with conflicting judgments by Benches of equal strength


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        of this Court, it is the earlier one which is to be followed by the
        High Courts, as held by a 5-Judge Bench in National Insurance
        Company Limited v Pranay Sethi, (2017) 16 SCC 680. The
        High Courts, of course, will do so with careful regard to the
        facts and circumstances of the case before it.”

20.    In view of the observations made in Union Territory of

Ladakh (Supra), as noted above, we are of the view that the

decision in Silpi Enterprises (Supra), Gujarat State Civil Supplies

Corporation Limited (Supra) as well as in JSW Steel Limited

(Supra) still holds the field and therefore, this court would be

bound by those decisions.


21.    In the result, this Writ Petition must succeed and the same is

hereby allowed in terms of prayer clauses 24 (a) (i) & (ii).


22.    In view of disposal of the Writ Petition, Interim Application

No. 3071 of 2026 also stands disposed of.


23.    Parties to bear their own cost.




 ( ADVAIT M. SETHNA, J.)                                   (SUMAN SHYAM, J.)
                                                                                {




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