Gujarat High Court
Aepl Infrastructure Pvt. Ltd vs Tehran Jonoob Technical And ... on 5 May, 2023
NEUTRAL CITATION
C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 66 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AEPL INFRASTRUCTURE PVT. LTD.
Versus
TEHRAN JONOOB TECHNICAL AND CONSTRUCTION COMPANY
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Appearance:
MR R S SANJANWALA SR. COUNSEL with MR NV GANDHI(1693) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1
MR SUJOY S ROUTH(10901) for the Respondent(s) No. 2
MR PERCY KAVINA, SR. COUNSEL with MS AMRITA M THAKORE(3208)
for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 05/05/2023
ORAL JUDGMENT
1. The present petition is filed under Section 27 of the Arbitration and Conciliation Act, 1996 praying for the following reliefs:-
Page 1 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined "a. Allow the present Application under Section 27 of the Act filed by the Petitioner; and b. Summon personnel of IOCL as described under Para 15 of the aforesaid Application to be present before the Ld. Sole Arbitrator as third-party witnesses; and c. Direct the personnel of IOCL as described under Para 15 of the aforesaid Application to produce Project related documents relied upon by the Petitioner/ Respondent before the Ld. Sole Arbitrator;
d. Direct the personnel of IOCL as described under Para 15 of the aforesaid Application to produce Project related documents and communications from August 2020 till date; and e. Grant any other and further relief(s), order(s), direction(s) as this Hon'ble Court may deem fit and proper in the aforementioned and attending circumstances."
2. The brief facts leading to filing of the present petition are as under:-
2.1 That Indian Oil Corporation Limited (IOCL') vide Tender No. PLCC/ETBPNMTPL/CL/19037 ('Tender') invited tenders for Laying of Cross County R-LNG pipeline from IP-101 (Palliyagram) to IP 105 (Ramanthapuram) & Spurlines, Thirunallur to Associated Sectionalising Valve (SV) Stations, Receiving Terminals (RT) & Station Works under ETBPNMTPL "Project Group-F" IP 201 to Bengaluru (Project) Various eligible bidders including the Respondent participated in the Tender.
2.2 That the Petitioner and Respondent No. 1 entered into a Pre-
bid Agreement wherein the absolute and complete subcontracting of the works under Group F was termed as strategic alliance.
Page 2 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined 2.3 That the Respondent, vide its Email, without specifying the exact reason, informed the Petitioner that pipeline laying work from Chainages 158 to 168 at Andhra Site and Chainages 209 to 225 at Karnataka site has been taken over from the Petitioner.
2.4 That the Petitioner sent an Email to the Respondent wherein the Petitioner mentioned that owing to the breaches and the part takeover of the Contract at the hands of the Respondent, the Petitioner would not be in position to execute the Contract.
2.5 That on 17.07.2020 the Arbitration Clause of the Contract was invoked by the Respondent. That on 17.03.2021 the Hon'ble Supreme Court appointed Mr. Justice C. K. Thakker, Former Judge Supreme Court of India as a sole arbitrator to adjudicate the dispute between the Petitioner and Respondent No. 1 in the interest of justice. That the 1st Arbitral Proceeding was held between the parties, headed by a Ld. Sole Arbitrator on 08.04.2021. That the Proceedings in regards to pleading have been completed by the Parties before the Arbitral Tribunal and the evidence by way of affidavit has also been filed by the parties before the Ld. Arbitral Tribunal. Currently, the Arbitration is now at the evidence stage.
2.6 That on 22.12.2021 1st application came to be filed by the Petitioner herein before Ld. Sole Arbitrator, under section 27 seeking approval to approach this Court. That on 07.01.2022 the Reply came to be filed by the Respondents to the 1 st application under section 27 seeking approval to approach this Court. That Order dated 21.01.2022 came to be passed by the Ld. Sole Arbitrator on the 1st application filed by the Petitioner herein before Ld. Sole Arbitrator, under section 27 of the Arbitration Act.
Page 3 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined 2.7 That on 29.01.2022 a 2nd application came to be filed by the Petitioner herein before Ld. Sole Arbitrator, under section 27 of the Arbitration Act. Reply filed by the Respondents to the 2 nd application filed by the Petitioner before Ld. Sole Arbitrator, under section 27 of the Arbitration Act. That Order dated 24.2.2022 came to be passed by the Ld. Sole Arbitrator wherein he was pleased to allow the Petitioner to approach this Hon'ble court seeking summoning of 3rd party independent witnesses in the arbitral proceeding "TJTC and Anr. v. AEPL Infrastructure Private Limited". That on 28.03.2022 an Order was passed by the Ld. Sole Arbitrator directing the Petitioner to file the present application by 07.04.2022.
3. The learned Senior Counsel for the petitioner Mr. R.S.Sanjanwala submits as follows:-
3.1 That all the mandatory requirements of section 27 of Act are complied with in detail in the application before the Ld. Sole Arbitrator and also in the application before this Hon'ble Court. A bare perusal of section 27 read with section 19 of the Act makes it clear that at the present stage of the proceedings, this Hon'ble Court is only to see the relevance of the personnel being summoned. Unless the concerned IOCL personnel are summoned as witness and they produce the relevant documents, the Applicant shall be unable to defend its case against the contentions raised by the Respondents.
3.2 It is stated that IOCL is the best witness and there is likely no other way for the Applicants to obtain the relevant documents. The entire defence of the Respondents and their claims are based on the documents and statements made by IOCL. The major contention raise by the Respondents is the delay caused on the part Page 4 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined of the Applicant in the Project. However, the Respondents sought extension from IOCL citing COVID-19 as the reason. Further, the Respondents claimed liquidated damages from the Applicant, if levied by IOCL. However, the Applicant asserts that since no damages have been levied by IOCL till date, the case of the Respondents is purely imaginative and assumptive. Therefore, it is essential that IOCL be summoned as witness to demonstrate that whatever delay has been caused, the same is due to acts and omissions of the Respondents.
3.3 That the Applicant discovered a number of documents under RTI, including but not limited to, the letters filed by the Respondents with IOCL seeking extension for execution of the works of the Project, Bid submission extension, Final Technical Evaluations notes, MOM of Price Negotiation, Price Negotiation Summary etc., the copies of which were denied to the Applicant because either they were covered under Section 8(1)(d) and Section 2(n) of the RTI Act or IOCL identified it beyond the queries under the extant of the RTI Application. That the applicants are not privy to these documents as they are in custody of IOCL. Therefore, it is pertinent for the Applicant to procure the aforesaid documents from IOCL and the aforesaid personnel from IOCL if summoned shall bring on record all the documents in relation to the Project.
3.4 It is stated that IOCL has not discontinued the Project and their contract with the Respondents and work on the said Project is still underway. Therefore, it is indispensable that present Site In-
Charge be summoned to have on record relevant material and documents concerning the execution of work post the exit of the Applicant.
Page 5 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined 3.5 That, therefore, it is necessary that this Court summons the Post/designation as mentioned above. Further, if during the course of recording of evidence, it emerges that someone other than the six personnel mentioned above have, in their possession, documents of relevance and importance, the Applicants be given the liberty for securing their right to apply for issuance of witness summons. The seventh personnel, as mentioned above, may be deposed at such relevant time.
3.6 That it is easily comprehensible from the bare perusal of the Order dated 24.02.2022 that the Ld. Sole Arbitrator has applied his mind and came to the conclusion that evidence of IOCL is required. All the contentions raised by the Respondents are fully dealt with in detail in the application filed before this Court. Thus, the application of the Applicant is not bereft of any reasoning.
3.7 That Section 19 (3) and (4) read with section 27 of the Act clearly indicates that the arbitral tribunal may devise its own procedure. It is the entire prerogative of the arbitrator to allow a witness to give evidence and if such order is passed by the arbitrator, then there is no scope of interference by the Court.
3.8 That under Section 5 of the Arbitration Act, there is a clear bar for a Court to intervene in any proceedings except the proceedings specifically provided under the provisions of the Act under section 34. Section 27 is limited in its scope and the Respondents herein are questioning the very validity of the order passed by the Ld. Sole Arbitrator which cannot be challenged herein. The law clearly states that there should not be judicial intervention except where explicitly provided. Hence, on bare perusal if section 27 read with section 19 read with section 5 of the Page 6 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined Act indicates that the details of the order passed by the arbitrator under section 27 cannot be gone into by the Court. The Respondents can challenge the order dated 24.02.2022 only after the final award is passed by the Ld. Sole Arbitrator.
3.9 That the applications filed by the Applicant before the Ld. Sole arbitrator and this Hon'ble Court is clear on the testimony required from the witness. It is submitted that Order 16 Rule (1) CPC has to be read with section 19 whereby the arbitral tribunal has the power to devise its own procedure. Accordingly, the arbitral tribunal is well within its rights call a witness by his/her designation. The Applicant's request to call present EIC and Site In-charge meets the statutory requirement Order 16 Rule (1) CPC. The objective of the law is to be specific and by mentioning the designation, the Applicant fulfills the requirement of law. That Order 16 Rule 1 & 2 of Civil Procedure Code, 1908 does not apply stricto sensu and the Court is supposed to only see the relevance for permitting summoning of a witness.
3.10 That there is no provision under the Act for challenging an order passed by the Arbitral Tribunal granting permission to a party to seek assistance of a court under Section 27 of the Act during the pendency of the arbitral proceedings.
Hence, it is prayed that the present application be allowed.
4. Learned Senior Counsel for the respondents Mr. Percy Kavina submitted as under :-
4.1 That it is a mandate of the law which cannot be ignored, and an application which is devoid of particulars cannot be allowed.Page 7 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023
NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined 4.2 That the legislative intent behind it is clear that the provisions for witness summons should not be casually utilised by parties or be the means of delaying or derailing arbitral proceedings. The party seeking a witness summons must therefore not only be specific in regard to exactly which witness is sought to be summoned by name, but also in regard to the specific purpose for which such witness is to be summoned i.e. by giving a statement of the subject matter of the testimony required of such witness and/or the description of the specific document/s to be produced by such witness court.
4.3 That the present application under Section 27 of the Act is devoid of particulars in the following manner:-
(a) While paragraph 15 of the application provides for the names of 3 of the witnesses, it does not provide their addresses nor does it contain any statement of the subject matter of the testimony required of each of these witnesses and/or the description of any document to be produced by each of these witnesses.
(b) The next 3 witnesses in the list contained in paragraph 15 of the present application does not even provide the names of these witnesses nor their addresses, nor does it contain any statement of the subject matter of the testimony required of each of these witnesses and/or the description of any document to be produced by each of these witnesses.
(c) That the last item in the list contained in paragraph 15 of the present application is a vague demand of issuance of witness summons to "any other personnel from IOCL...", This Page 8 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined does not comply with any of requirements of Section 27(2) of the Act.
4.4 That the applicant's contention that a general narration of the case of the applicant in the arbitral proceedings and of the evidence which the applicant might be able to elicit would suffice for such an application is ex facie misplaced. Such interpretation of Section 27 of the Act is not only ex facie contrary to the plain language thereof but would also lead to serious mischief.
It is further submitted that what is required by Section 27(2)
(c) of the Act is a specific statement of the subject matter of the testimony required of each witness and the specific description of the document/s to be produced by such witness. For example, if the Engineer in Charge of the project is sought to be summoned, the applicant must state in its application what is the specific testimony that the Engineer in Charge is able to give on account of his specific knowledge/ experience and/or what specific document/s are in his possession which he is to be called upon to produce.
4.5 That it may be noted that the applicant is seeking to summon several witnesses of IOCL and not just one or two witnesses. The provisions of Section 27 of the Act are not meant for a general fishing inquiry by summoning multiple witnesses without specifying the subject matter of testimony of each such witness and specific document/s sought from each such witness.
4.6 It is also pertinent to note that the prayers in the present application in fact seek a direction to the witnesses to be summoned to produce "project related documents relied upon by the petitioner / respondent before the Ld. Sole Arbitrator" and "project related documents and communications from August 2020 Page 9 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined till date". This being a pipeline laying project spanning more than 100 km, project related documents / communications would run into thousands of pages and this kind of a prayer can hardly be said to be compliant of Section 27(2)(c){ii) of the Act.
4.7 That the applicant's contention that in view of Section 19 of the Act, the Arbitral Tribunal is empowered to conduct the proceedings in the manner it considers appropriate and therefore, once the Arbitral Tribunal has given its approval, the Court cannot go beyond it is also misconceived. The requirements of Section 27(2)(c) of the Act cannot be given go bye by the Arbitral Tribunal in the garb of exercising powers under Section 19 of the Act. Moreover, it is the application to the Court which must contain the particulars stipulated in Section 27(2)(c) of the Act and therefore the Court is required to satisfy itself in this regard before issuing witness summons and cannot do so merely on the basis of an approval by the Arbitral Tribunal.
4.8 That the applicant's reliance upon Section 5 of the Act is also misplaced. It is the application to the Court under Section 27 of the Act which must contain the particulars stipulated in Section 27(2)
(c) of the Act. Therefore it is the Court which is required to satisfy itself in this regard before issuing witness summons. Section 5 does not take away this requirement nor does it apply to matters under Section 27 of the Act. In fact, Section 5 itself provides that judicial intervention is permissible where so provided. That Section 27 of the Act clearly provides for judicial intervention.
4.9 That the present application, being non-compliant with the requirements of Section 27 of the Act, is required to be rejected.
4.10 That the judgments relied upon by the applicant reported in Page 10 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined 2016 SCC Online Bom 5318, 2015 SCC Online Bom 5036, 2017 SCC Online 3342, 2018 SCC Online 1179 do not apply to the facts of the present case since in those cases the issue was not whether the requirements of Section 27 of the Act were complied with in the application before the court. Moreover, it is respectfully submitted that it is not a correct principle of law that the Court must issue witness summons when an Arbitral Tribunal has approved it, even in cases where the mandate of Section 27(2) of the Act is not followed by the applicant in the application before the Court. It is submitted that it is the Court's duty to ascertain compliance of this mandate and if it finds that the application does not comply, then such application has to be rejected.
4.11 That it is further submitted that in absence of the particulars of name and address, any order directing witness summons to be issued would not be implementable. Hence also, such application has to be rejected.
4.12 That allowing this application will in effect mean issuance of vague summons to unnamed personnel of IOC which cannot be implemented and which will result in multiple applications before this Hon'ble Court for modification of witness summons. All this will result in the arbitral proceedings prolonging beyond on reasonable limits and ultimate ensuring that the respondents' claims against the applicant do not get adjudicated.
4.13 Moreover, a number of IOC personnel are sought to be summoned without specific subject matter of the testimony or description of documents to be produced. In all likelihood, such personnel or many of them, even if served with summons, may not appear or may not bring all "project related documents" or the nature of examination in chief of such personnel, absent the subject Page 11 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined matter of the testimony, would be an endless fishing inquiry.
4.14 That looking to the language of Section 27 of the Act particularly sub-sections (2) and (3) thereof, it is evident that the principles of Order 16 Rule 1 are applicable to applications under Section 27 of the Act. This is also held by the Hon'ble Delhi High Court in the case of Hindustan Petroleum Corp v. Ashok Kumar Garg, 2006 SCC Online Del 1056. In fact, Section 27 of the Act is even more stringent in its requirements than Order 16 Rule 1 of CPC.
4.15 That insofar as the contents of such application are concerned and justification to be provided for summoning witnesses, it is evident from Section 27(2)(c) of the Act, that the principles of Order 16 Rule 1 are not only adopted but adopted with much greater rigor.
4.16 That the manner, timing and vagueness of the application makes it evident that its object is to delay and derail the arbitral proceedings completely.
It is therefore submitted that the present application be dismissed.
5. Heard learned advocates for the respective parties and perused the documents on record.
6. At the outset, it will be beneficial to refer to the relevant sections of Arbitration Act, 1996 to appreciate the arguments advanced before this Court in the proper perspective.
6.1 Section 5 of the Arbitration Act reads thus:-
Page 12 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined "5. Extent of judicial intervention.--Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part."
6.2 Section 19 of the Arbitration Act reads thus:-
"19. Determination of rules of procedure.--
(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).
(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence."
6.3 Section 27 of the Arbitration Act reads thus:-
"27. Court assistance in taking evidence.--
(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.
(2) The application shall specify--
(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the evidence to be obtained, in particular,--Page 13 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023
NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined
(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required;
(ii) the description of any document to be produced or property to be inspected.
(3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.
(4) The Court may, while making an order under sub- section (3), issue the same processes to witnesses as it may issue in suits tried before it.
(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court.
(6) In this section the expression "Processes" includes summonses and commissions for the examination of witnesses and summonses to produce documents."
6.4 Section 5 of the Arbitration Act circumscribes the extent of judicial intervention. It prohibits any judicial authority to intervene in the arbitral proceedings in the matters governed by part-I of the Arbitration Act except to the extent provided in the Act.
6.5 A bare perusal of Section 19(1) of the Act shows that "The Arbitral Tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act,1872 (1 of 1872)". Therefore, the Arbitral Tribunal is not bound by any rigor or strict provisions of Code of Civil Procedure, 1908 or Indian Evidence Act, Page 14 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined 1872. Section 19(2) provides that subject to the provisions of Part-I, the parties are free to agree on the procedure to be followed by the Arbitral Tribunal in conducting its proceedings. In the present case, the record does not reveal that the parties have agreed on any specific procedure to be followed by the Arbitral Tribunal in the conduct of its proceedings. The provisions of Section 19(3) provide that failing any agreement, the Arbitral Tribunal may conduct the proceedings in the manner it considers appropriate.
6.6 Therefore, in the present case, the Arbitral Tribunal can conduct any such procedure conforming with the provisions of part- I of the Act which should meet the basic tenets of adjudicatory process. The procedure, as may be followed by the Tribunal, cannot curtail the rights of the parties under Sections 13, 16, 17, 22, 23, 24, 25, 26 of the Act or any of them. A bare perusal of the provisions of Section 19 of the Act shows that it is within the power of the Arbitral Tribunal to regulate its procedure for effective and expeditious conduct of the arbitral proceedings in a transparent and fair manner. The legislative intent is clear to vest the Arbitral Tribunal with autonomy and flexibility in the matter of conduct of its proceedings so as to expedite the proceedings and cut the procedural wrangles which are governed by the Civil Procedure Code or the Evidence Act.
7. Section 19 of the Act also confers the power upon the Arbitral Tribunal to direct production of a document considered to be relevant evidence by it by one or the other party to the proceedings.
8. A perusal of Section 19 and Section 27 of the Arbitration Act shows that the Arbitral Tribunal shall not be bound by Code of Civil Page 15 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined Procedure, 1908 (5 of 1908) or Indian Evidence Act, 1872 (1 of 1872). The powers of the learned Arbitrator under Section 27 are not adjudicatory powers. It only provides for a procedure for providing assistance to a party in whose favour learned Arbitrator has opined for the production of documents or witnesses as warranted in the facts of the case. Thus, the Arbitral Tribunal is not empowered to issue witness summon or compel the party for production of document under the Arbitration Act. If the Arbitrator is satisfied on an application made by any of the parties to the arbitration that the production of witnesses or documents are necessary for proper adjudication of the dispute, the Arbitral Tribunal can grant permission to the said party to seek assistance of this Court under Section 27 of the Act.
9. The legislative scheme of the provisions of Section 27 is quite clear in as much as the Court has not been attributed any adjudicatory function for providing assistance to the Tribunal in taking the evidence. In exercise of jurisdiction under Section 27, the Court would be required to consider as to whether the requirement of sub-section (1) are satisfied and not and then, the party with the approval of the Arbitral Tribunal may apply to the Court for assistance in taking the evidence. If one such requirement is satisfied or not, it is mandatory for the Court to exercise its jurisdiction under Section 27(1) which provides for the same.
10. In the present case, having perused the order passed by the learned Arbitrator, the same reveals that the Tribunal has examined the issue in detail and has also considered the rival submissions to come to the conclusion that the evidence of such witnesses would be material and helpful in the adjudicatory Page 16 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined process. Considering the fact that the Arbitral Tribunal has allowed the application to permit the petitioner herein to examine such witnesses, it would not be within the jurisdiction of the Court under Section 27 of the Act to sit in appeal over such finding which is a procedural decision taken by the learned Arbitrator in the course of the arbitral proceedings. The Arbitral Tribunal is the master of the proceedings before it and during the course of adjudication, the learned Arbitrator has come to the conclusion that as to which relevant witnesses are to be examined by the parties. In the opinion of this Court, the legality of such reasoning cannot be gone into under Section 27 of the Arbitration Act by this Court. Section 27 merely provides the parties to seek assistance of the Court in taking the evidence. From the provisions of Section 27, it is revealed that the proceedings thereunder are not in the nature of an appeal over the decision of the Arbitral Tribunal. Section 27 provides the machinery for issuance of witness summons to the parties and for production of documents which power is not vested in the Arbitral Tribunal. There is no provision prescribed under the Arbitration Act empowering the Arbitrator to issue witness summons and for production of documents. This Court is also of the view that pending the arbitral proceedings, at this stage, this Court cannot adjudicate the validity and correctness of the order passed by the learned Arbitrator granting permission to the respondents for seeking assistance of this Court in taking the evidence under Section 27 of the Arbitration Act. The Court cannot decide whether production of such document or presence of such witnesses is warranted or not in the present case.
11. Further, a perusal of Section 5 of the Arbitration Act reveals that the respondents cannot challenge the order passed by the learned Arbitrator granting such permission to the petitioner to apply to this Court for assistance or the order directing Page 17 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined examination of additional witness or production of documents. There is a bar under Section 5 of the Arbitration Act for the Court to intervene in any proceedings except those proceedings specifically provided for. There is no provision in the Arbitration Act for challenging the order passed by the Arbitral Tribunal granting permission to a party to seek assistance of the Court under Section 27 of the Arbitration Act during the pendency of arbitral proceedings.
12. In the present case, the respondents have vehemently opposed the order of the Arbitral Tribunal. If their contentions are to be accepted, the same would render the provisions of Section 27 redundant and the very purpose for which the enactment has been done and the legislative intent behind it would be frustrated. It is, therefore, reiterated that Section 27 of the Act and the powers thereunder require this Court to enable the Arbitral Tribunal to effectively and completely decide a dispute pending before it or else it would frustrate the very purpose of the Arbitration Act.
13. The Bombay High Court in case of Montana Developers Pvt. Ltd. vs. Aditya Developers, Mumbai and ors. reported in (2017) 3 Bom CR 236 has held as under:-
"15. This Court in case of National Insurance Company Limited (supra) after adverting the judgment of this Court in case of M/s. Rasiklal Ratilal (supra) and in case of United Spirits Limited, Bangalore (supra) has held that it is not possible for the Court to interfere with the proceedings which are pending before the learned arbitrator while hearing an application under section 27 of the Arbitration Act. Paragraphs 36, 40 to 42 of the said judgment read thus :-
"36. This Court has also held that considering the scheme of the Arbitration Act, it is not possible for Page 18 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined the Court to interfere with the proceedings which are pending before the arbitral tribunal. The Arbitrator is a master of his own proceeding. The Court normally should not direct or re-schedule the proceeding of the learned arbitrator. It is also held that considering the scheme of Section 27 of the Arbitration Act, there is no procedure available whereby the Court should give hearing to the witness or a party against whom the Court wants to issue directions to produce record or to issue summons for witness. Such hearing is not at all contemplated under this provision and/or even in any other provision of Code of Civil Procedure, 1908. Once the Court comes to a conclusion that these documents are required for adjudication of the issues in the peculiar facts and circumstances of the case, it can issue direction or pass such an order to produce the original documents before the learned arbitrator directly. It is held that the Court's assistance in taking evidence as contemplated is restricted only to this extent of giving direction to the parties to produce the documents or issue summons to witnesses. In the said judgment, however, this Court directed the bank for production and deposit of the original documents with the learned arbitrator.
40. In my view, the arbitral tribunal cannot issue a witness summons itself or cannot enforce its own order of producing certain documents or cannot force a party or a third party to lead evidence or to produce documents. The arbitral tribunal or a party to the proceedings with the approval of the arbitral tribunal may apply to the Court for assistance in taking evidence. In my view, at this stage, this Court cannot go into the validity and correctness of the order passed by the learned arbitrator granting permission to the respondent herein for seeking assistance of this Court in taking evidence under Section 27 of the Arbitration Act. It is for the arbitrator to decide as to whether particular documents or presence of a particular witness would be necessary for the proper adjudication of the dispute between the parties or not, if any such application is made by the parties to the arbitral proceedings. In these proceedings under Section 27 of the Arbitration Page 19 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined Act, this Court cannot decide whether production of such documents or presence of such witness was warranted or not.
41. The purpose of Section 27 of the Arbitration Act, in my view, is to provide assistance to the arbitral tribunal or to a party in taking evidence with a view to expedite the arbitral proceedings. Merely because the arbitral tribunal has no power to issue a witness summons or to compel the attendance of the witnesses, the parties should not suffer. The legislature has inserted the Section 27 of the Arbitration Act to avoid this inconvenience to the parties to the arbitral proceedings and has thus empowered the arbitral tribunal as well as the parties to take assistance of the Court. The Court is empowered to issue direction to a party or even third party to produce documents or witnesses by summoning the party or even third party if the arbitral tribunal has granted permission and is of the opinion that production of such documents or evidence of such party including third party would be necessary for proper and effective adjudication of the dispute before it.
42. In so far as the illustration given by the learned counsel for the review petitioner that even if the learned arbitrator would have granted permission to the respondent herein to examine the President of India, whether this Court could have directed the office to issue witness summons upon the President of India is concerned, in my view, that is not the situation in this case. The illustration given by the learned counsel for the review petitioner, in my view, is totally irrelevant for the purpose of deciding this review petition. A perusal of the order passed by the arbitral tribunal indicates that the learned arbitrator has directed the review petitioner to produce certain documents and has permitted the respondent herein for issuance of the witness summons upon two of the Surveyors and the Branch, which according to the learned arbitrator, would be relevant for the purpose of adjudication of the dispute between the parties."Page 20 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023
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16. I am thus inclined to accept the submission of Mr. Tulzapurkar, the learned senior counsel for the petitioner that the powers under section 27 of the Arbitration Act are not adjudicatory powers. In my view, the said provision provides a procedure for providing assistance to a party in whose favour the learned arbitrator has opined that the production of documents or witness was warranted in the facts of his case. Under section 19 of the Arbitration Act, it is clearly provided that the learned arbitrator shall not be bound by the Code of Civil Procedure, 1908 or Evidence Act, 1872. In my view, the arbitral tribunal is thus not empowered to issue any witness summons itself or to compel a party to produce any documents under the provisions of the Arbitration Act. If the learned arbitrator is satisfied on the application made by any of the party that production of witness or documents which is not being produced in spite of the attempts made by a party, the arbitral tribunal can grant permission to such a party to take the assistance of this Court under section 27 of the Arbitration Act. In my view, merely because a party has filed the arbitration proceedings in view of the agreement between the parties, he cannot be put to dis- advantage in view of the powers of summoning a witness not having been provided to the arbitrator under the provisions of the Arbitration Act.
17. If the petitioner before this Court was required to file a suit and if he was required to examine any witness or to produce a document, which was not produced by such a party or such witness or a party would have refused to give evidence, the petitioner in that event could have applied for issuance of witness summons or for production of document under the provisions of the Code of Civil Procedure, 1908. At that stage, the respondent was not required to be heard by this Court. In my view, once the arbitral tribunal was of the opinion that production of such document or witness was warranted in the facts and circumstances of the case, at this stage, the respondent could not have raised any objection on merits of the order passed by the learned arbitrator. If the learned arbitrator decides on merits against the respondents herein, the respondents would be entitled to challenge the said award along with the order passed by the learned arbitrator granting such Page 21 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined permission to the petitioner to apply to this Court for the assistance under section 27 of the Arbitration Act.
18. In view of section 5 of the Arbitration Act, since the respondents could not have challenged the order passed by the learned arbitrator granting such permission to the petitioner to apply to this Court for the assistance or the order of the learned arbitrator holding that examination of additional witnesses or production of documents was warranted, the respondents cannot be indirectly allowed to challenge the validity of that order while opposing this application under section 27 of the Arbitration Act. In my view, what cannot be done directly, cannot be allowed to be done indirectly. Under section 5 of the Arbitration Act, there is a clear bar for a Court to intervene in any proceedings except the proceedings specifically provided under the provisions of the Arbitration Act. There is no proceeding provided under the Arbitration Act for challenging an order passed by the arbitral tribunal granting permission to a party to seek assistance of a Court under section 27 of the Arbitration Act during the pendency of the arbitral proceedings.
19. I am not inclined to accept the submission of Mr. Sancheti, the learned senior counsel for the respondents that in the proceedings under section 27 of the Arbitration Act, the Court can decide the merits of the order passed by the learned arbitrator. In my view, Mr. Tulzapurkar, the learned senior counsel for the petitioner is right that under section 27 of the Arbitration Act, a procedure is prescribed for taking assistance of this Court for issuance of witness summons in terms of the order passed by the learned arbitrator and the proceedings are not adjudicatory proceedings.
20. Though the learned senior counsel for the respondents wanted to address this Court on merits of the order passed by the learned arbitrator as to why production of additional witnesses or production of documents was not at all warranted in the facts and circumstances of this case, since the respondents cannot challenge the order passed by the learned Page 22 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined arbitrator granting permission to the petitioner for taking assistance of this Court at this stage, this Court cannot hear the respondents on the merits of the order passed by the learned arbitrator at this stage."
14. The Bombay High Court in the case of Dilip s/o Bhavanji Shah vs. Errol Moraes in Arbitration Petition (L) NO.722 of 2022 by decision dated 17.01.2022 has held as under :-
"10. It would be useful to refer to the decision of the learned Single Judge of this Court in "M/s.Tata Industries Ltd. Vs. M/s.Grasim Industries Ltd."2011(1) Mh.L.J. 436 in the context of the observations the decision makes on judicial interference in arbitral proceedings, as also on the policy of the provisions as reflected from the scheme of the different provisions of the Act. The Court has also considered the effect of the provisions of Section 5 of the Act and has observed that the policy of the legislature is to minimize judicial intervention in arbitral proceedings and to confine intervention into an exceptional category of cases stipulated in the legislation. It was held that the discipline of the Act must be observed by Courts and excessive intervention in arbitral proceedings is liable to render nugatory the object and purpose of facilitating arbitration as an effective form of alternate dispute resolution in commercial disputes. It was also observed that the role of the Court when it enters into the arena of commercial disputes must be to facilitate an efficacious and expeditious determination of disputes and that both the sense of expedition and efficacy ought not to be lost in entertaining unwarranted pleas. In my opinion, such principles are aptly applicable to the plea being urged on behalf of the respondents for the Court to reject the respondents' contentions."
15. Further, in the case of B J Techno - HAS (JV) vs. National Hydroelectric Power Corporation Limited reported in AIR 2019 P &H 142, the Punjab and Haryana High Court has held as under :-
Page 23 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined "13. In dealing with a similar matter, the Delhi High Court in "Thiess Iviinecs India Vs. NTPC Limioted & Anr.", O.M.P. (E) (COMM.) 12/2016 decided on 28.3.2016, had similarly adverted to Sections 5, 19 and 27 of the Arbitration Act , which have also been reproduced in this Judgment, and observed -
"25. Section 5 specifically prohibits any judicial authority to intervene in the arbitration proceedings notwithstanding anything contained in any other law, for the time being inforce in matters governed by part I of the Act, except to the extent, provided for in the Act. On perusal of Section 19(1), it is noted that the Tribunal shall not be bound by the Code of Civil Procedure, 1908 or Indian Evidence Act, 1872. Section 19(2) contemplates, the parties are free to agree on the procedure to be followed by the Tribunal. Section 19(3) stipulates, failing any agreement, the Tribunal may conduct the proceedings, in the manner it considers appropriate. Section 19(4) contemplates, the Tribunal to govern the admissibility, relevancy, materiality and weight of any evidence. Unlike 19(4), a perusal of Section 27 would reveal, it is enacted for the Court's assistance in taking evidence. There is nothing in Section 27, where the Court can determine the admissibility, relevancy, materiality and weight of any evidence. The only requirement for the Court is to ensure that it is within its competence and according to its Rules on taking evidence. The nature of power exercised is to execute the request as the Tribunal on its own cannot do it, in view of the inapplicability of the provisions of the Code of Civil Procedure, 1908. Such a request presupposes a direction of the Tribunal to produce the documents, which has not been complied with.
26. Further, the competence of a Court is not the same as determining the admissibility, relevancy, materiality and weight of any evidence, otherwise Section 27 would have 8 of 15 said so. The words 'according to its Rules' have been held to mean issuance of process to witness in the same manner as the Court issues in suits, tried before it.
14. In "M/s National Insurance Company Limited Vs. M/ s S.A. Enterprises" Review Petition (L) No.51 of 2015 in Page 24 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined Arbitration Petition No.1544 of 2015 decided on
16.10.2015, similarly the Bombay High Court had held -
"40. In my view, the arbitral tribunal cannot issue a witness summons itself or cannot enforce its own order of producing certain documents or cannot force a party or a third party to lead evidence or to produce documents. The arbitral tribunal or a party to the proceedings with the approval of the arbitral tribunal may apply to the Court for assistance in taking evidence. In my view, at this stage, this Court cannot go into the validity and correctness of the order passed by the learned arbitrator granting permission to the respondent herein for seeking assistance of this Court in taking evidence under Section 27 of the Arbitration Act. It is for the arbitrator to decide as to whether particular documents or presence of a particular witness would be necessary for the proper adjudication of the dispute between the parties or not, if any such application is made by the parties to the arbitral proceedings. In these proceedings under Section 27 of the Arbitration Act, this Court cannot decide whether production of such documents or presence of such witness was warranted or not."
15. Again the High Court after referring to the above decision in "M/s National Insurance Company Limited's"
case (supra) in "Stemcor (S.E.A.) Pte. Limited v. Mideast Integrated Steels Limited" 2018 SCC OnLine Bom 1179 had observed -
"53. This Court held that at the stage of hearing the application under Section 27 of the Arbitration Act, this Court cannot go into the validity and correctness of the 9 of 15 order passed by the learned arbitrator granting permission to the respondent herein for seeking assistance of this Court in taking evidence under Section 27 of the Arbitration Act. The purpose of Section 27 of the Arbitration Act, in my view, is to provide assistance to the arbitral tribunal or to a party in taking evidence with a view to expedite the arbitral proceedings. The legislature has inserted the Section 27 of the Arbitration Act to obviate the inconvenience to the parties to the arbitral proceedings and has thus empowered the arbitral tribunal as well as the parties to take assistance of the Court. The Court is empowered to issue direction to a party or even third party to produce documents or witnesses by summoning the party or even third party if Page 25 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined the arbitral tribunal has granted permission and is of the opinion that production of such documents or evidence of such party including third party would be necessary for proper and effective adjudication of the dispute before it. In my view, the principles of law laid down by this Court in the case of National Insurance Company Limited Vs. S.A. Enterprises (supra) would squarely apply to the facts of this case. I do not propose to take a different view in the matter."
16. Similarly, in "Montana Developers Pvt. Ltd. Mumbai Vs. Aditya Developers, Mumbai and others", Arbitration Petition (Lodging) No.680 of 2016 decided on 22.6.2016, the Bombay High Court had held -
"16. I am thus inclined to accept the submission of Mr.Tulzapurkar, the learned senior counsel for the petitioner that the powers under section 27 of the Arbitration Act are not adjudicatory powers. In my view, the said provision provides a procedure for providing assistance to a party in whose favour the learned arbitrator has opined that the production of documents or witness was warranted in the facts of his case. Under section 19 of the Arbitration Act, it is clearly provided that the learned arbitrator shall not be bound by the Code of Civil Procedure, 1908 or Evidence Act, 1872. In my view, the arbitral tribunal is thus not empowered 10 of 15 to issue any witness summons itself or to compel a party to produce any documents under the provisions of the Arbitration Act. If the learned arbitrator is satisfied on the application made by any of the party that production of witness or documents which is not being produced inspite of the attempts made by a party, the arbitral tribunal can grant permission to such a party to take the assistance of this Court under section 27 of the Arbitration Act. In my view, merely because a party has filed the arbitration proceedings in view of the agreement between the parties, he cannot be put to dis- advantage in view of the powers of summoning a witness not having been provided to the arbitrator under the provisions of the Arbitration Act.
19. I am not inclined to accept the submission of Mr.Sancheti, the learned senior counsel for the respondents that in the proceedings under section 27 of the Arbitration Act, the Court can decide the merits of the order passed by the learned arbitrator. In my view, Mr.Tulzapurkar, the learned senior counsel for the Page 26 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined petitioner is right that under section 27 of the Arbitration Act, a procedure is prescribed for taking assistance of this Court for issuance of witness summons in terms of the order passed by the learned arbitrator and the proceedings are not adjudicatory proceedings.
20. Though the learned senior counsel for the respondents wanted to address this Court on merits of the order passed by the learned arbitrator as to why production of additional witnesses or production of documents was not at all warranted in the facts and circumstances of this case, since the respondents cannot challenge the order passed by the learned arbitrator granting permission to the petitioner for taking assistance of this Court at this stage, this Court cannot hear the respondents on the merits of the order passed by the learned arbitrator at this stage."
17. In "United Spirits Ltd., Bangalore Vs. Delta Distilleries Ltd., Mumbai and another", Arbitration Petition No.838 of 2011 11 of 15 decided on 20.7.2012, it was again observed -
"15. At the cost of repetition I reiterate that the powers vested with the Court under the provisions of section 27 of the Act, are required to be exercised by this Court so as to enable the Arbitral Tribunal to effectively and completely decide the matters before it. Any other interpretation, in my considered view, would rather make the provisions of section 27 redundant and would frustrate the very purpose of the Arbitration. In that view of the matter, in ordinary course this Court would have passed the order directing the respondent No.2 to produce the Assessment Orders on the failure of the respondent No.1 to produce the same. However, since the learned AGP categorically stated that the record is not available with the respondent No.2, as such a direction cannot be issued as against the respondent No.2."
18. In "Delta Distilleries Limited Vs. United Spirits Limited and another" (2014) 1 S.C.C. 113, the Supreme Court had explicitly endorsed the Application of the Arbitral Tribunal u/s 27 regarding production of certain documents, which were ostensibly 'confidential' documents, and directed the Appellant to produce the Page 27 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined same as had been sought by the Respondents. The relevant extracts from the Judgment of the Apex Court are as follows -
"25.2. If we look at the words used in these two sections, they very clearly state that particulars contained in any return or statement made by a party, or document produced along therewith are confidential, and no court shall pass any order requiring the Government or a Government servant to produce any such statement, document or return. It is a settled principle of law that the words used in a statute are to be read as they are used, to the extent possible, to ascertain the meaning thereof. Both these provisions contained a bar only against the Government officers from producing the documents mentioned therein. There is no bar therein against a party to produce any such document.
12 of 15 25.3 In Tulsiram Sanganaria v. Anni Rai and Ors. reported in 1971 (1) SCC 284, a Bench of three Judges of this Court interpreted an identical provision in Section 54(1) of the Income Tax Act, 1922, and held that the said provision created a bar on the production of the documents mentioned therein by the officials and other servants of the Income Tax Department, and made it obligatory on them to treat as confidential the records and documents mentioned therein, but the assessee or his representative-in-interest could produce assessment orders as evidence, and such evidence was admissible. Thus, if a claim is to be decided on the basis of an order of assessment, the claimant as well cannot be denied the right to seek a direction to the party concerned to produce the assessment order.
25.4. It is this very prayer which has been allowed by the earlier order dated 27-3-2007 passed by the then Arbitrator, and also by the subsequent order dated 16- 9-2011 passed by the Arbitral Tribunal, and in our view rightly so. There is no substance in the second objection as well.
26. There is one more aspect which we must note, i.e., when the first respondent made an application for production of the assessment orders, the defence taken by the appellant in their affidavit dated 16-9-2011 was that those documents were confidential documents, Page 28 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined and could not be directed to be produced. It was not stated at that time that the said documents were not available. It is ten months thereafter, that when the second affidavit was filed in the High Court, that the respondent for the first time contended that the said documents were not available. This was clearly an after thought, and this attitude of the respondent in a way justified the earlier order permitting an application under Section 27 passed by the Arbitral Tribunal. The Assistant Commissioner of Sales Tax of the concerned area was also joined as respondent so that he could be directed to produce the required documents. However, he reported that those 13 of 15 documents were old records, and were destroyed. The learned Single Judge did not pass any order against Respondent 2 to produce the documents, as sought. However, the learned Single Judge rightly allowed the petition as against the appellant in terms of Prayer clause (a), directing the appellant to produce the documents which were sought by the Respondent 1.
27. In the circumstances, there is no merit in the appeal. The appeal is, therefore, dismissed."
19. In the light of the aforesaid decisions cited on behalf of the Claimant i.e. the Petitioner in CR No.9540 of 2018, this Court has also no hesitation in holding that requisition of documents as sought for strictly in terms of the decision of the Arbitral Tribunal alone ought to have been secured by the Ld. Court below while dealing with the Application under Section 27 of the Arbitration Act, and that the Court had fallen in error by adjudicating upon the admissibility of the documents sought for. Consequently, CR No.9540 of 2018 is allowed in totality after setting aside that portion of the impugned order, according to which, the Ld. Court below had determined that the documents covered at Sr. Nos.1 to 3 could not be directed to be produced. The counter Civil Revision No.1522 of 2019 filed at the instance of the Respondent in the Arbitral Proceedings is allowed in part after setting aside the impugned order to the extent that the Respondent was directed to supply the documents at Sr. Nos.6 & 7 as well, which had not been called for even by the Arbitral Tribunal."
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16. In view of various decisions of the different High Courts as reproduced herein above, it is well settled that the respondents cannot oppose the present application filed by the petitioner under Section 27 of the Arbitration Act at this stage. I am in respectful agreement with the view taken in the above decisions. In view thereof, the arguments on behalf of the respondents are liable to be rejected and are accordingly rejected.
17. In the present case, the learned Arbitrator has given careful consideration to the application preferred by the petitioner under Section 27 of the Arbitration Act seeking approval to apply to this Court for assistance of personnel of Indian Oil Corporation who were involved and leading the project for and on behalf of the Indian Oil Corporation and are in possession of relevant documents and information. The learned Arbitrator has held thus:-
"Having heard the learned Counsel for the parties, in my opinion, the Respondent - Applicant has made out a case by allowing it to apply to the Court for assistance in taking evidence of Officials / Personnel of 1OC under Section 27 of the Act.
As pleaded by the Respondent - Applicant, Officials of IOC have been intrinsically involved in the Project and they are in possession of relevant documents and material information which would throw light and would be necessary in the present arbitration proceedings.
It was stated that in March 2020, COVID-19 Pandemic gripped the entire world, including the area where the work was to be performed, which was described as "red zone" due to several cases which resulted in delay of work The Claimants, however, denied COVID-19 as "force majeure" event causing delay and alleged that there was slow progress of work by the Respondent - Applicant.Page 30 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023
NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined It was also stated that the case of the Claimants was that due to delay on the part of the AEPL (Respondent - Applicant), it had to seek extension from IOC in October, 2020. The Claimants have placed on record letter of |OC granting extension for completion of Project. But, they have not produced letter written by them i.e. the Claimants. The said letter, however, refers to COVID-19 Pandemic and is in the custody of IOC, which will throw light on facts pleaded by the Claimants before IOC.
The Applicant has also stated that by 16-07-2020, it had completed 21.6% work while the case of the Claimants before |OC was that only 8.77% work was done. In the circumstances, it would be |OC who would be able to throw light on the basis of material before it. According to the Respondent - Applicant, it would be crucial for the Counter-claim lodged by the Respondent for the amount of Rupees Seventeen Crore (approx.).
Moreover, according to the Claimants, after exit of the Respondent-Applicant, the Project was being progressed as per Schedule, and damages, if any, levied by IOC, should be on the Respondent.
Apart from the fact that the assertion is "purely imaginative and assumptive", completion of work is far away. It is through IOC Officials that full and correct facts would come before the Tribunal. It is also through IOC that the Respondent would be able to show that Right of Way (RoW) said to have been provided to the Respondent - Applicant was only on "paper" and there were several hindrances.
Again, there is a dispute before the Tribunal whether the Claimants could have entered into a strategic alliance with another entity with respect to the Project in question and whether the Claimants have obtained permission from IOC for this purpose.Page 31 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023
NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined I also find substance in the argument of the learned Counsel for the Respondent - Applicant that IOC has refused to recognize the Respondent as a sub-contractor in view of the fact that the Respondent has no privity with IOC.
In the light of all these facts and circumstances, in my opinion, a case has been made out by the Respondent - Applicant as required by Section 27 of the ' Act to "apply to the Court" for taking its assistance.
The learned Senior Advocate for the Claimants vehemently contended that there is abuse of process of law by the Respondent. The Application is malafide and an after-thought only with a view to cause delay in the proceedings. {ssues have been framed by the Tribunal and Affidavits in lieu of Examination in Chief have been filed by the witnesses of both sides and, hence, the present Application deserves to be dismissed.
In my opinion, there is no undue or unreasonable delay. After completion of pleadings, Issues were framed on 23-09-2021. In December 2021, Affidavits were simultaneously filed by witnesses of both the sides. The Application seeking permission to approach the Hon'ble Court was then filed by the Respondent = Applicant on 22-12-2021. But, as no ground was put forward, the Tribunal allowed the Respondent to withdraw the Application by granting liberty to file fresh Application, which was filed on 29-01-2022. Reply was filed by the Claimants on 10-02-2022 and the matter was heard immediately. Thus, my opinion, it cannot be said that there is gross delay on the part of the Respondent - Applicant in preferring the present Application.
Thus, considering the facts and circumstances in their entirety and without expressing any opinion on the merits of the matter, in my view, prima facie case for approaching the Court for assistance in taking evidence through Officials / Personnel of [OC has been made out by the Respondent - Applicant and the Application deserves to be allowed.
For the foregoing reasons, I allow the Application seeking approval to file an Application under Section 27 Page 32 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined of the Arbitration and Conciliation Act, 1996 and to apply to the Court for assistance in taking evidence."
18. Hence, it is seen that there is thorough application of mind on behalf of the Arbitrator to arrive at a satisfaction that the witnesses as mentioned in the application ought to be summoned for taking the evidence. As the learned Arbitrator has already found that the evidence of the witnesses mentioned in the application under Section 27 are necessary for taking the evidence in the present arbitration proceedings, the prayers in the present petition are allowed.
19. Accordingly, the Registry is directed to issue summons to:
i) Shri Naveen Kumar who was EIC, IOCL qua the Project during the relevant period of time from October 2019 till July 2020.
ii) Shri Dhanesh Kumar, who was Site In-Charge (Karnataka Portion), IOCL qua the Project during the relevant period of time from October 2019 till July 2020.
iii) Shri Gaurav, Singh, who was Site In-Charge (Andhra Pradesh Portion), IOCL qua the Project during the relevant period of time from October 2019 till July 2020.
iv) Personnel of IOCL who is EIC qua the Project as on date when summons are being issued and complied with.
v) Personnel of IOCL who is Site In-Charge (Karnataka Portion), IOCL qua the Project as on date when summons are being issued and complied with.
vi) Personnel of IOCL who is Site In-Charge (Andhra Pradesh Portion), IOCL qua the Project as on date when summons are being issued and complied with.Page 33 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023
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vii) Any other personnel from IOCL that may be required to be called as a witness in relation to the works of the Project or any such person who may be in possession of the records pertaining to the Project.
The Indian Oil Corporation Limited is directed to depute the present Engineer In-charge for the project, Site In-Charge (Karnataka Portion), IOCL qua the Project, Site In-Charge (Andhra Pradesh Portion), IOCL qua the Project and also depute one officer along with the records pertaining to the project to which the reference has been made in paragraph 15(vii) of the petition. It is informed by learned advocates appearing for the parties that there is no further date fixed by learned Arbitrator pending this application. Therefore, it is directed that the said witnesses/officers concerned shall remain present along with relevant documents relating to the project concerned in dispute before the learned Arbitrator on the next date of hearing as fixed by the learned Arbitrator in the arbitral proceedings.
20. It is made clear that this Court has not expressed any opinion on merits as to whether the learned Arbitrator was justified in holding that the production of additional witness or document was warranted in the facts and circumstances of the case. The said issue is kept open to enable the parties to agitate the same on merits at the appropriate stage.
21. In view of aforesaid discussion and reasons, the present petition is allowed and disposed of accordingly in the aforesaid terms.
(ANIRUDDHA P. MAYEE, J.) Page 34 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023 NEUTRAL CITATION C/ARBI.P/66/2022 JUDGMENT DATED: 05/05/2023 undefined After pronouncement of the judgment, learned senior counsel appearing for the respondents prays for stay of this order for a period seven weeks from today to enable the respondents to challenge this order before the Higher Forum, which is opposed by learned senior counsel appearing for the petitioner. As it is informed that no further date of hearing is fixed by the learned Arbitrator, in view thereof, the present order is stayed for a period of seven weeks from today.
(ANIRUDDHA P. MAYEE, J.) cmk Page 35 of 35 Downloaded on : Sat Sep 16 19:12:13 IST 2023