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2007 Supreme(Bom) 460
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
M/s. Rasiklal Ratilal- Petitioners
Versus
Fancy Corporation Ltd. & Anr.- Respondent
Arbitration Petition No.64 of 2007
Decided on 2nd April, 2007.
Advocates appeared
Mr. GAURAV JOSHI i/b. Mr. D. P. DESAI, for the Petitioners.
Mr. ASHISH KAMATH i/b. M/s. V. Deshpande & Co., for Respondent no.2.
Headnote:Arbitration and Conciliation Act, 1996 - Section 27 - CPC, Order XIII, Rules 1 and 9 - Court’s assistance. - Court’s assistance in taking evidence as contemplated is restricted only to extent of giving directions to parties to produce documents or issue summons to witnesses.
On earlier direction of High Court the respondent No. 2 was ready to produce the original documents on a given date before the arbitration Tribunal but they want those documents to be returned back by Tribunal immediately.
Held, that considering the scheme of the Arbitration Act it is not possible for the Court to interfere with the proceedings which are pending before the Tribunal. An arbitrator is a master of his own proceeding. The Court normally should not direct or re-schedule the proceeding of the Tribunal. Such submission therefore is absolutely untenable. The Tribunal is free to proceed in the matter as scheduled. 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 present case, the Court is concerned only with the production of original documents, therefore, as case is made out and as respondent No. 2 is also not disputing to produce original documents, but only on certain conditions. No direction to Tribunal to release and/or hand over and/or return of those original documents on or before particular date. However, in view of the submission made by respondent No. 2 and also in view of the fact that respondent No. 2 will require those documents to pursue their remedy against these parties which are pending, respondent No. 2 is at liberty to move an application for return of those original documents before the arbitral Tribunal.
2. The petitioner is a claimant before the Honble Arbitral Tribunal. Respondent no. 1 against whom the claim is made in the sum of Rs.2,69,31,779/- together with interest. The petitioner's basic claims are arising out of these documents. Therefore, an application under Section 27 of the Arbitration Act was filed by the petitioner being Arbitration Petition no.379/ 2006 in this Court. After hearing the petitioner and respondent no.1 by an order dated 29.08.2006 the said petition was allowed in terms of prayers (a), (b) and (c). The said order was communicated to respondent no.2 vide letter dated 12.09.2006.
3. On 25.09.2006 representative of respondent no.2-Bank was present through their Advocates and informed to the Honble Tribunal that they have certified copies of the original documents. They have not produced the original documents. However, they agreed to produce the original documents within a period of two weeks from 25.09.2006. As the original documents were not produced, the petitioner has filed the present petition seeking direction against respondent no.2 to produce the original documents as referred above. Section 27 of the Arbitration Act as relevant is reproduced as under:
"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 pm1icular,-
(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 properly 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."
4. The scheme of Section 27 appears to be that the arbitral tribunal or a party with the approval of the arbitral tribunal may apply to the Court for assistance in taking evidence. For that the requirement is that the party should apply to the Court specifying the names and addresses of the parties and the Arbitrators; the general nature of the claim and the relief sought; the evidence to be obtained in particular, referring to the names and addresses of any person to be heard as witness or expert witness and a statement of the subject matter of the testimony required and secondly, by giving description of the documents to be produced or property to be inspected. The Court within its competence and according to the Rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal. The Court may thereafter, while m
