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2018 Supreme(Kar) 1226
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DINESH MAHESHWARI, KRISHNA S. DIXIT, JJ.
Radiant Infosystems Limited - Petitioner
Versus
The Karnataka State Road Transport Corporation Limited - Respondent
Writ Petition Nos.19822 of 2018 & 19834 of 2018 (GM-RES)
Decided On : 27-07-2018
For the Petitioner:Sri. Arun Kumar.K, Advocate
For the Respondent:Sri. P.D. Surana, Advocate
Headnote:
Constitution of India, 1950 - Article 227 - Termination of proceedings - Patel Engineering - Petitions petitioner company seeks to question orders made by Sole Arbitrator matter of whereby respectively Arbitrator notified parties that no further documents shall be received in matter and rejected petitioner’s application seeking permission to produce additional documents – Held, Though counsel for petitioner has also attempted to rely upon decision in case of SREI Infrastructure Finance – Supra to contend that writ petition is maintainable against orders passed by Arbitral Tribunal but court are afraid no such ratio is discernible from decision – Therein Arbitral Tribunal had terminated proceedings Section Act due to non-filing of claim by claimant but question was as to whether Tribunal had jurisdiction to consider an application for recalling order terminating proceedings - On said question Supreme Court endorsed views of Patna Delhi and Madras High Courts that Arbitral Tribunal even after termination of proceedings Section Acton sufficient cause being shown could recall order and recommence proceedings and held that in given case Arbitral Tribunal committed an error in holding that it had no jurisdiction to recall order terminating proceedings - In said case question was also raised as to whether order passed by Tribunal Section terminating proceedings was amenable to jurisdiction of High Court Article Constitution of India vide paragraph report – However Honble Supreme Court did not enter into said questioning view of its decision on principal issue involved in matter - In this regard Supreme Court observed as Coming to Issues in view of what we have said regarding Issue that Arbitral Tribunal has jurisdiction to consider an application for recall of order terminating proceedings Section it is not necessary for us to enter into Issues for purposes of this case - For deciding present civil appeal our answer to Issue is sufficient to dispose of matter – Said decision in case of SREI Infrastructure does not advance cause of petitioner – Similarly other decisions sought to be relied upon by counsel for petitioner do not appear requiring dilation particularly in view law laid down in no uncertain terms in Larger Bench decision in Patel Engineering - Supra - Petitions dismissed
ORDER :
1. In these Writ Petitions, the petitioner-company seeks to question the orders dated 21.02.2018 and 26.04.2018 made by the Sole Arbitrator in the matter of A.C.No.128/2017, whereby, respectively, the Arbitrator notified the parties that no further documents shall be received in the matter; and rejected the petitioner’s application seeking permission to produce additional documents.
2. The brief facts and relevant background aspects of the matter are as under:
(a) Pursuant to the order of this Court in C.M.P. No.236/2016, the dispute between the parties as regards termination of contract came to be referred to the Sole Arbitrator Sri Justice Mohammed Anwar for holding the arbitration proceedings under the aegis of the Arbitration and Conciliation Center, Bengaluru. Both the sides have filed their pleadings and the documents in support of their respective stand.
(b) The Sole Arbitrator in the first sitting on 31.01.2018, fixed a Time Table for the conduct and conclusion of the proceedings. The documents produced by the parties were marked too. On the next date of hearing, which was held on 21.02.2018, the Arbitrator put the parties to the notice that they would not be permitted to produce any further document. The relevant part of the order sheet as drawn by the Sole Arbitrator on 21.02.2018 reads as under:
“9. Both parties have concluded their marking and exhibiting of their respective documents. The proceeding for this purpose was commenced on 14.02.2018 and concluded today. It is noticed from these proceedings that on every day of marking of these documents both sides had been producing fresh lot of documents on record of this proceeding piling up the heap of documents running into several hundreds of pages. Both parties are made known that whatever documents that were in their custody and were not produced till today, their production will not be permitted to further pile up the lot of documents except of course reserving liberty to the parties to confront the either party in cross examination with any material document.”
(c) The issues were framed on 05.03.2018 and the matter was set down for recording the evidence of claimant by way of affidavit, on 14.03.2018.
(d) On 15.03.2018, the petitioner filed an application under Section 24(3) of the Arbitration and Conciliation Act, 1996 (‘the Act’) for production of 16 documents while stating, inter alia, that the said documents are relevant for answering the issues as framed, inasmuch as the documents earlier produced before the framing of issues would not suffice to prove the stand taken by the petitioner/claimant. The application so moved was opposed by the respondent herein.
(e) The Sole Arbitrator, after hearing the parties, has dismissed the said application of the petitioner with a cost of Rs.25,000/- by the impugned order dated 26.04.2018.
3. Learned counsel for the petitioner, Sri Arun Kumar has vehemently argued that although most of the documents were produced before framing of the issues, the necessity to seek permission to produce some more documents arose after examining the issues; that a party to the litigation would be able to decide as to whether the evidence should be led or not, and as to what kind/nature of evidence should be led, only after examining the issues; and that the right to lead the evidence cannot be defeated on the ground that the parties have already produced some evidence along with the pleadings before framing of the issues.
4. Per contra, learned counsel for the respondent Sri P.D. Surana has contended that whatever be the procedure prescribed by the Code of Civil Procedure, 1908, it is always open to the Arbitral Tribunal to prescribe its own procedure, the provisions of CPC being inapplicable; the Arbitrator by the order dated 21.02.2018 had specifically made it clear to both the parties that the documents already produced by the parties would be taken in evidence and no more documents would be permitted to be produced except for confrontin
