Bombay High Court
The State Of Maharashtra vs Supreme Best Value Kolhapur(Shiroli) ... on 19 November, 2019
Author: G. S. Patel
Bench: G.S. Patel
9-CARBPL1320-19.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION (L) NO. 1320 OF 2019
The State of Maharashtra ...Petitioner
Versus
Supreme Best Value Kolhapur (Shiroli) Sangli ...Respondent
Tollways Pvt Ltd
Mr Rohan Kelkar, with Nilesh Tated & Mamrata Zaveri, i/b DSK
Legal, for the Petitioner.
CORAM: G.S. PATEL, J.
DATED: 19th November 2019 PC:-
1. The petition is under Section 27 of the Arbitration and Conciliation Act 1996 seeking the assistance of this Court by issuing a witness summons to one Mr Awdoot A Kulkarni, an employee of an engineering frm or consultancy called, Stup Consultants Pvt Ltd ("Stup"). A three-Member arbitral tribunal is scheduled to meet at the Mumbai Centre for International Arbitration premises at Nariman Point from 29th January to 2nd February 2020 starting at 11.00 a.m. The prayer is for the issuance of a summons to Mr Kulkarni to remain present on that date to give evidence and to produce documents in relation to the subject matter of this dispute.
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2. I am told that Mr Kulkarni has declined to act upon a request made by the petitioner, the State of Maharashtra. To ensure that there is no controversy about what is required of Mr Kulkarni, a few facts are necessary.
3. The petitioner and the respondent, Supreme Best Value Kohlapur (Shiroli) Sangli Tollways Pvt Ltd., evidently a special purpose vehicle, executed a Concession Agreement dated 30th September 2011 for the four-laning of the State Highway from Kolhapur (Shiroli) - Sangli road on build, operate and transfer basis for section Shiroli to Ankali MSH No. 3 km. 146/to 182/200 to section Ankali to Sangli SH No. 75 km. 71/130 to 75/830 and km 00 to 12/500 Jaysingpur Bypass, District Kolhapur and Sangli.
4. There were disputes between the petitioner and the respondent. The respondent claimed it had sufered losses and that there were breaches by the State Government. Arbitration was invoked. The tribunal being constituted, the respondent fled a statement of claim. The State Government fled its written statement and a counter-claim seeking damages. All pleadings are said to be complete. Afdavits in lieu of examination-in-chief of their respective witnesses are also fled. The petitioner proposes to lead evidence of one SS Mane. The respondent (the claimant in arbitration) has led the evidence of one Ashok Mohite. His cross- examination is complete. The respondent's second witness, Kamlesh Chechani's cross-examination has begun, and is expected to be completed shortly.
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5. In its pleadings the State Government has relied on several documents prepared by Stup, an independent consultant, supervisor or project management consultant. It was appointed in accordance with the provisions of the concession agreement. The reports and correspondence signed by or addressed to Stup are annexed to the State Government's written statement and counter claim and also form part of its disclosure compilations. The State Government relies on this material inter alia in support of its claim that the concessionaire abandoned the concession agreement, was slow and delayed in executing the works, failed to provide the contractually mandated safety measures, completed less than 98% of the total contracted work, did work that was inadequate and substandard, and used substandard material that did not conform to contractual specifcations.
6. To substantiate its case, the State Government believes it is necessary to examine Mr Kulkarni. He is employed with Stup. He led the team that supervised the project. He was personally involved in this supervision. He frequently visited the project site. He personally monitored the progress of the work. He prepared monthly progress reports. He was the principal person authoring these reports and the correspondence on behalf of Stup, setting out the correct position and status of the project. Mr Kulkarni is said to be still in the employment of Stup.
7. On 19th March 2019 the petitioner wrote to Stup requesting that Mr Kulkarni remain present as a witness. Stup declined inter alia citing 'time and costs implications'. The petitioner then fled an Page 3 of 6 19th November 2019 ::: Uploaded on - 20/11/2019 ::: Downloaded on - 21/11/2019 00:21:04 ::: 9-CARBPL1320-19.DOC application under Section 27 on 30th April 2019 before the arbitral tribunal. The tribunal gave the present respondent time to fle reply. There was a rejoinder. That application was heard and was allowed on 10th June 2019.
8. The State Government then approached this Court in Commercial Arbitration Petition (L) No. 955 of 2019 under the provisions of Section 27. That earlier petition also sought an issuance of summons to Mr Kulkarni. There was also a prayer for a direction that his recorded evidence be returned to the arbitral tribunal. It seems that since no scheduled date has been fxed by the tribunal, the summons could not be made returnable on a known date, time and place. The petitioner therefore sought leave to withdraw this petition with liberty to fle a fresh petition after dates and venue was fxed by the tribunal.
9. Hence, the present petition.
10. I am told that the tribunal has fxed a four-day session from 29th January 2020 to 2nd February 2020. The cross-examination of the respondent-claimant's second witness will conclude before then. The petitioner expects that the cross-examination of its frst witness will also conclude and Mr Kulkarni's evidence will be required immediately thereafter.
11. I am inclined to grant the relief sought and to direct that a summons be issued to Mr Kulkarni in the following terms.
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12. The respondents are absent though served. There is no prejudice that can be caused to the respondent. They will undoubtedly have the fullest latitude in cross-examination.
13. The petition is made absolute in terms of prayer clause (a).
14. The Registry will issue a summons to Mr Awdhoot A Kulkarni, Stup Consultants Pvt Ltd. 1004-05, Raheja Chambers, Nariman Point, Mumbai 400 021, returnable before the three- Member tribunal of Mr Justice SN Variava, former Judge of the Supreme Court; Mrs Justice S Manohar, former Judge of the Supreme Court; and Mr Justice DK Deshmukh, former Judge of this Court at the Mumbai Centre for International Arbitration, 20th Floor, Nariman Point, Mumbai 400 020 returnable on 29th January 2020 at 11.00 am. The summons will be accompanied by an ordinary copy of this order.
15. Mr Kulkarni is directed to have with him the originals or ofce copies, as the case may be, and one set of photocopies, of all documents in the power and possession of Stup pertaining to the concession agreement dated 30th December 2011 between the State Government and Supreme Best Value Kolhapur (Shiroli) Sangli Tollways Pvt Ltd.
16. Mr Kulkarni will be required to give evidence of matters to his personal knowledge and based on documents and records in his power and possession in relation to this project.
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17. Should Mr Kulkarni prefer, and it is for him to decide, he may contact the Advocates for the State of Maharashtra at DSK Legal, C016, Dhanraj Mahal, 3rd foor, Chhatrapati Shivaji Marg, Apollo Bunder, Mumbai 400 001 to prepare, if thought necessary, an afdavit in lieu of examination-in-chief. I am making this provision because Mr Kulkarni may fnd it convenient and time-saving to have such an afdavit of evidence prepared with the assistance of the Advocates for the petitioner.
18. This order is not to be construed to mean that the arbitral tribunal is required to take Mr Kulkarni's evidence immediately on 29th January 2020. It will undoubtedly fx its own schedule.
19. The petitioner will pay the actual costs of the witness attending the arbitration, i.e. travel and transportation costs and in addition will make payment to him personally of an amount of Rs. 10,000/- per day for each day of attendance.
20. The petition is disposed of in these terms.
21. There will be no order as to costs.
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