Delayed Payments to MSMEs Under the MSMED Act 2006: Legal Framework and Recovery Mechanisms

Introduction

The Micro, Small and Medium Enterprises Development Act, 2006 represents a landmark legislation addressing one of the most persistent challenges faced by India’s MSME sector – delayed payments. This Act established a robust legal framework for ensuring timely payments to micro and small enterprises, addressing the chronic working capital constraints that have historically impeded the growth of these enterprises. The legislation goes beyond mere policy declarations by creating enforceable rights and establishing institutional mechanisms for dispute resolution. Enacted to promote and develop micro, small, and medium enterprises while enhancing their competitiveness, the MSMED Act’s most impactful contribution lies in Chapter V. This chapter provides a comprehensive legal remedy for delayed payments to MSMEs under the MSMED Act, driving a paradigm shift in buyer-supplier relationships across the Indian business ecosystem.

Legislative Framework and Statutory Provisions

Payment Obligations Under Section 15

Section 15 of the MSMED Act establishes the fundamental obligation on buyers to make timely payments to their MSME suppliers [1]. The provision mandates that where a supplier supplies goods or renders services to any buyer, the buyer shall make payment on or before the date agreed upon between the parties in writing. Crucially, the Act provides that even if there is no written agreement, payment must be made before the ‘appointed date’, which is defined as the day following immediately after the expiry of fifteen days from the day of acceptance or deemed acceptance of goods or services.

The Act places a statutory ceiling on credit periods, providing that the period of credit shall not exceed 45 days from the day of acceptance or deemed acceptance, regardless of any contrary agreement between the parties. This provision ensures that micro and small enterprises cannot be compelled to accept unreasonably extended payment terms that would adversely affect their cash flow and operational capabilities.

Interest Liability Under Section 16

Section 16 of the MSMED Act creates a penal framework for delayed payments to MSMEs by imposing compound interest liability on defaulting buyers. When a buyer fails to make payment within the stipulated timeframe, they become liable to pay compound interest with monthly rests on the outstanding amount at three times the bank rate notified by the Reserve Bank of India. This punitive interest rate serves both as a deterrent against delayed payments and as compensation to the affected MSME for the financial hardship caused by the delay.

The compound nature of the interest calculation significantly increases the financial burden on defaulting buyers. Unlike simple interest calculations, compound interest ensures that interest accrues not only on the principal amount but also on previously accumulated interest, creating an escalating liability structure that incentivizes prompt payment.

Dispute Resolution Through Micro and Small Enterprises Facilitation Council

The MSMED Act establishes a specialized dispute resolution mechanism to address delayed payments to MSMEs, through Micro and Small Enterprises Facilitation Councils (MSEFC) constituted under Sections 20 and 21. These councils are empowered to adjudicate disputes arising from delayed payments and possess both conciliation and arbitration powers. Section 18 of the Act provides that any dispute regarding amounts due under the Act shall be referred to the MSEFC, which shall first attempt resolution through conciliation.

If conciliation fails, the Council may either conduct arbitration proceedings itself or refer the matter to any institution or center providing alternative dispute resolution services. The arbitration provisions under Section 18 are deemed to operate as if there was an arbitration agreement between the parties under Section 7 of the Arbitration and Conciliation Act, 1996. Significantly, Section 24 provides that the MSMED Act’s provisions have an overriding effect over other laws, ensuring that MSME suppliers cannot be denied the benefit of this specialized forum.

MSME Samadhaan Portal: Digital Infrastructure for Enforcement

Portal Functionality and Access

The Ministry of MSME launched the MSME Samadhaan portal on October 30, 2017, creating a digital platform to address delayed payments to MSMEs[3]. This online system allows micro and small enterprises with valid Udyog Aadhaar Memorandum (UAM) or Udyam Registration to directly approach the respective state MSEFCs for dispute resolution. The portal represents a significant advancement in making the delayed payment resolution mechanism accessible and transparent.

The portal provides real-time case tracking capabilities, allowing MSMEs to monitor the progress of their applications throughout the resolution process. Additionally, it creates public visibility of pending payments, thereby applying moral pressure on defaulting buyers. Central Public Sector Enterprises, ministries, and state governments can monitor delayed payment cases through the portal, enabling proactive intervention.

Case Processing and Resolution Timeline

Under the MSMED Act, every reference made to an MSEFC must be decided within ninety days from the date of filing. The portal facilitates this timeline by automatically forwarding applications to the concerned MSEFC after fifteen days of online filing. The structured process includes notice to the respondent, conciliation proceedings, and if necessary, arbitration or adjudication by the Council.

The portal’s data indicates significant utilization since its launch, with thousands of applications filed involving substantial monetary claims. However, the resolution rate remains a concern, with a significant percentage of applications still pending disposal, highlighting the need for enhanced infrastructure and resources at the MSEFC level.

Disclosure Requirements and Compliance Framework

Annual Statement Disclosures Under Section 22

Section 22 of the MSMED Act imposes mandatory disclosure requirements on buyers whose annual accounts are subject to audit [4]. These buyers must furnish specific information in their annual statement of accounts regarding amounts due to MSME suppliers. The required disclosures include the principal amount and interest due remaining unpaid at the end of each accounting year, amounts of interest paid during the year, interest due for delayed payments, accrued but unpaid interest, and further interest due in succeeding years.

These disclosure requirements serve multiple purposes: they create transparency regarding payment practices, enable stakeholders to assess the buyer’s compliance with MSME payment obligations, and facilitate monitoring by regulatory authorities. The mandatory nature of these disclosures ensures that delayed payments cannot be hidden from public scrutiny.

Half-Yearly Reporting Under Companies Act

Following the notification dated November 2, 2018, companies whose payments to micro and small enterprises exceed 45 days are required to file half-yearly returns with the Ministry of Corporate Affairs through e-form MSME-1. This return must specify outstanding amounts and reasons for delay. Non-compliance with this requirement attracts penalties under Section 405(4) of the Companies Act, 2013, including a basic penalty of Rs. 20,000 and additional daily penalties for continuing default.

Tax Implications Under Section 43B(h) of Income Tax Act

Deduction Restrictions for Delayed Payments to MSMEs

The Finance Act 2023 introduced Section 43B(h) to the Income Tax Act, creating additional financial incentives for timely payments to MSMEs [5]. This provision restricts tax deductions for payments made to micro and small enterprises beyond the timeline specified in Section 15 of the MSMED Act. Specifically, such payments are allowed as deductions only in the year when actual payment is made, regardless of the accounting method followed by the taxpayer.

This provision effectively increases the cost of delayed payments to MSMEs by denying immediate tax benefits to defaulting buyers. For businesses following accrual-based accounting, this represents a significant departure from normal practice and creates additional financial pressure to ensure timely payments.

Implementation and Scope

Section 43B(h) became effective from April 1, 2024, and applies to all payments due to micro and small enterprises registered under the MSMED Act. The provision specifically excludes medium enterprises from its scope, focusing protection on the most vulnerable segments of the MSME sector. Importantly, the provision does not apply to wholesale and retail traders, as clarified by government notifications that limit their MSME benefits to priority sector lending only.

Judicial Interpretation and Case Law Development

Supreme Court Precedents

The Supreme Court’s decision in Principal Chief Engineer v. M/s Manibhai and Bros (Sleeper) established crucial precedents regarding the MSMED Act’s application [6]. The Court upheld the Gujarat High Court’s interpretation that the MSMED Act, being special legislation with overriding effect, binds parties to follow the dispute resolution mechanism provided under Section 18, even when alternative arbitration agreements exist between the parties.

This judgment clarified that MSMEs cannot be compelled to forgo their statutory rights under the MSMED Act in favor of contractual arbitration clauses. The decision reinforced the protective intent of the legislation and ensured that the specialized forum created for MSME disputes cannot be bypassed through contractual arrangements.

High Court Decisions and Conflicting Views

Various High Courts have grappled with the interaction between the MSMED Act and general arbitration law. While the Gujarat High Court in the Manibhai case and several others have favored the supremacy of MSMED Act provisions, some decisions, particularly from the Bombay High Court in Steel Authority of India v. MSEFC, have taken different positions regarding the relationship between statutory arbitration under the MSMED Act and contractual arbitration agreements.

The Supreme Court’s recent decision in Silpi Industries v. Kerala State Road Transport Corporation addressed the maintainability of counterclaims in MSMED proceedings, holding that arbitral tribunals constituted under the MSMED Act serve as exclusive forums for all related disputes, including counterclaims by buyers.

Enforcement Challenges and Practical Issues

Infrastructure and Resource Constraints

Despite the robust legal framework, enforcement of MSMED Act provisions faces significant challenges. Many MSEFCs operate with limited infrastructure and resources, leading to delays in case disposal beyond the statutory ninety-day timeline. The lack of adequate administrative support and technical expertise at the state level has hampered the effective functioning of these councils.

Additionally, the enforcement of awards and orders passed by MSEFCs often requires recourse to civil courts, adding another layer of complexity and delay to the resolution process. While Section 19 of the Act provides that appeals against MSEFC orders require deposit of 75% of the awarded amount, ensuring actual recovery remains challenging.

Awareness and Utilization Gaps

A significant portion of the MSME sector remains unaware of their rights under the MSMED Act or the procedures for accessing relief through the MSME Samadhaan portal. This awareness gap is particularly acute among micro enterprises and those operating in rural areas. Educational initiatives and outreach programs are necessary to bridge this gap and ensure effective utilization of the legal framework.

Future Directions and Reform Proposals

Proposed Amendments to MSMED Act

The Ministry of MSME has initiated consultations for amending the MSMED Act 2006 to address current challenges and future-proof the legislation. Proposed amendments focus on four key areas: enhancing inclusivity, future-proofing provisions, improving coordination mechanisms, and enhancing ease of business. These amendments aim to grant statutory status to Udyam registration, expand credit guarantee coverage, and strengthen the institutional framework for MSME support.

Technology Integration and Process Improvements

Future reforms should focus on greater integration of technology in dispute resolution processes, including online hearing capabilities and digital evidence management. The establishment of dedicated fast-track courts for MSME matters and the creation of standardized procedures across states would significantly improve the effectiveness of the enforcement mechanism.

Conclusion

The delayed payments to MSMEs under the MSMED Act represent a significant milestone in protecting the interests of micro and small enterprises. The comprehensive framework created by the Act—encompassing payment obligations, penal interest, specialized dispute resolution, mandatory disclosures, and tax implications—demonstrates a multi-pronged approach to addressing this chronic issue.

However, the effectiveness of this framework depends heavily on proper implementation, adequate infrastructure, and awareness among stakeholders. The recent introduction of Section 43B(h) in the Income Tax Act provides additional financial incentives for compliance, while digital platforms like the MSME Samadhaan portal have improved accessibility to the dispute resolution mechanism.

Looking forward, continued reform efforts focusing on strengthening enforcement capabilities, improving procedural efficiency, and expanding awareness will be crucial for realizing the full potential of this beneficial legislation. The MSMED Act’s provisions, when effectively implemented, have the potential to significantly improve the financial health and sustainability of India’s vital MSME sector.

References

[1] The Micro, Small and Medium Enterprises Development Act, 2006, Section 15. Available at: https://www.dcmsme.gov.in/ 

[2] The Micro, Small and Medium Enterprises Development Act, 2006, Section 16. Available at: https://samadhaan.msme.gov.in/ 

[3] Ministry of MSME, Government of India. “MSME Samadhaan Portal.” Available at: https://samadhaan.msme.gov.in/ 

[4] The Micro, Small and Medium Enterprises Development Act, 2006, Section 22. Available at: https://www.lexology.com/library/detail.aspx?g=dc0c35e8-d98e-4e84-a05f-fa7a5213c3bd 

[5] Income Tax Act, 1961, Section 43B(h) as inserted by Finance Act, 2023. Available at: https://cleartax.in/s/section-43bh-of-income-tax-act 

[6] Principal Chief Engineer v. M/s Manibhai and Bros (Sleeper), Supreme Court of India.