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2020 Supreme(AP) 363
ANDHRA PRADESH HIGH COURT AT AMARAVATI
C. Praveen Kumar, Battu Devanand, JJ.
Jntuk - Appellant
Versus
Globarena Technologies Pvt Ltd. - Respondent
Civil Revision Petition No. 913 of 2019
Decided On : 12-03-2020
I. Madhu Babu, Advocate, K.B. Ramanna Dora, Advocate
The Arbitral Tribunal has the discretion to appoint an expert to report on specific issues, but the expertise of counsel appearing before the Tribunal is not sufficient to substitute the appointment of an expert, especially when the subject matter is highly technical and public money is involved.
Headnote:
ARBITRATION - SECTION 26 - EXPERT APPOINTMENT - ARBITRAL TRIBUNAL'S DISCRETION - EXPERTISE OF COUNSEL NOT SUFFICIENT - APPOINTMENT OF EXPERT NECESSARY FOR IN-DEPTH ENQUIRY INTO MATERIAL SUPPLIED BY CLAIMANT - PUBLIC MONEY INVOLVED.
Fact of the Case:
In an arbitration proceeding, the petitioner, JNTUK, sought to appoint an expert to examine the courseware submitted by the respondent-claimant, alleging that it was plagiarized and of sub-standard quality. The claimant disputed these allegations and argued that the material was prepared as per guidelines and had been scrutinized by professionals.
Finding of the Court:
The Arbitrator dismissed the petitioner's application, holding that the assistance of the learned counsel for both sides, who were experts in cyber law and e-governance, would be sufficient to assist the tribunal in arriving at a correct conclusion.
Issues: Whether the Arbitrator erred in rejecting the petitioner's request for the appointment of an expert to examine the courseware submitted by the claimant.
Ratio Decidendi: The court held that the Arbitrator erred in rejecting the petitioner's request for the appointment of an expert. The court noted that the knowledge of the counsel appearing before the Tribunal vis-a-vis the subject involved would at the most be a gathered knowledge and they cannot have knowledge as acquired by an academically trained person on the subjects involved. The court further noted that the material on record showed that the claimant had provided names of several persons, referring to them as faculty members, who were involved in developing the courseware. However, when information was sought from the alleged faculty member, they seem to have sent email, disowning their responsibility, intervention and interference with the subject task. Therefore, the court held that it was a fit case where the Arbitrator should have taken the help of experts to make an in-depth enquiry into the contents, in order to come to a conclusion with regard to the material supplied by the claimant.
Final Decision: The court allowed the Civil Revision Petition and set aside the Arbitrator's order rejecting the petitioner's request for the appointment of an expert.
JUDGMENT
C Praveen Kumar, J. - Assailing the order dated 9.3.2019 passed by the Sole Arbitrator in a petition filed under Section 26 of the Arbitration and Conciliation Act, 1996, the present Civil Revision Petition under Article 227 of the Constitution of India is filed.
2. The respondent-claimant submits that the petitioner - JNTUK, Kakinada, intending to implement and facilitate the Centre of Excellence for e-Resource Development and Deployment Project facilitating e-learning programs, employability skill development and industry interfacing initiatives have floated a tender. The objective of JNTUK was to establish state of the art facility to achieve excellence in the course delivery mechanism, facilitation of single window industry strength programs and providing e-learning courseware for use by faculties and students in their classroom deliveries. In this regard the petitioner - JNTUK floated a request of proposals from prospective private organizations by publishing advertisements in leading national and regional newspapers dated 11.8.2012 under the caption "Establishing Center of Excellence for e Resource Development and Deployment" etc., It is said that partI of request for proposal comprises of invitation to bid (ITB), while part-II relates to instructions to bidders. Part-III relates to terms and conditions, while Part-IV deals with technical and functional specifications. The request was for global tender. The courseware should be made available through multiple delivery possibility i.e., on college LAN and/or through secured access online and/or through a studio setup. The claimant responded to the request for proposal and submitted its tender as stipulated in invitation to ITB dated 11.8.2012 on 27.8.2012. The same was evaluated by a committee constituted by JNTUK on 12.9.2012. The committee, in turn, submitted the claimant's tender outcome to MDC (Monitoring and Development Committee) constituted by Government of Andhra Pradesh and its members being Chairman, Principal Secretary Education, Commissioner Technical Education, JNTUK Vice Chancellor and JNTUK Registrar. The said body suggested for conducting pilot implementation of the same as proof of concept. The officials of the respondent as well as MDC organized pilot project in six college locations on 15th and 16th October, 2012 incurring huge expenditure. The claim of the claimant is that it has developed e-software as per the agreement entered into and the termination of the contract by the respondent illegally made them to approach the High Court for appointment of an Arbitrator.
3. Pursuant to a dispute between the parties, Hon'ble Sri Justice C.Y.Somayajulu was appointed as an Arbitrator by the High Court on 23.2.2018. The dispute before the Arbitrator was whether JNTUK, Kakinada was right in closing the contract by its letter dated 20.6.2015; not paying an amount of Rs.22,33,31,975/- towards claim No.1 in favour of the claimant; not paying Rs.18,44,99,264/- towards claim No.2; and not paying Rs.2,83,75,164/- towards claim No.3 etc.,
4. Pending the arbitration proceedings, the respondent, who is the petitioner herein, made a counter claim contending that cancellation of the agreement, was on account of deficiencies/lapses on the part of the claimant and as per the modifications of the original agreement, the respondent-University is entitled to claim refund of the amount paid with penalties. Evidence was adduced by both sides. It is stated by the petitioner that the evidence adduced on behalf of both parties show that even agreeing to the claimant, the material, which is said to have been produced, is a plagiarized content to some extent. They claim to have a copy of the copyright certificate for the said material. It is further stated that most of the content was copied directly from the various standard textbooks or the material which is available in the public domain and the contribution made by the claimant is of sub-standard quality. As per the terms
