Point of law : Drill of Section 16 of the Arbitration and Conciliation Act, 1996 is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34.

JUDGMENT :

Prateek Jalan, J.

The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing]

1. This petition under Article 227 of the Constitution has been filed against two orders, dated 21.09.2021 and 03.02.2022, passed by an Arbitral Tribunal [“the Tribunal”] in proceedings between the parties herein, arising out of an agreement dated 26.10.2017 [“the agreement”].

Facts

2. The parties entered into the agreement for provision of certain services by the respondent-Panasonic India Pvt. Ltd. [“Panasonic”] to the petitioner-Virtual Perception OPC Pvt. Ltd. [“VPL”]. Disputes arose between them, which were referred to arbitration by an order of this Court dated 28.11.2019 in ARB.P. 428/2019 filed by Panasonic. Panasonic is the claimant before the Tribunal, and VPL is the respondent.

3. In the course of the arbitral proceedings, Panasonic filed an affidavit of evidence of one witness, namely Mr. Arvind Gopal. The affidavit of the witness was tendered in evidence on 05.04.2021, and he was partly cross examined on that date. It appears that there were some talks between the parties thereafter for a mutual settlement, and the proceedings were, in fact, next held after approximately five months. On 06.09.2021, Panasonic informed the Tribunal that Mr. Arvind Gopal had left its employment, and sought to file the evidence of another witness, namely Mr. Omkar Talwar. VPL objected to Panasonic’s application for this purpose. By an order dated 21.09.2021, the Tribunal allowed the application and substituted Mr. Omkar Talwar as the witness in place of Mr. Arvind Gopal.

4. VPL thereafter filed an application, stated to be under Section 16(3) of the Arbitration and Conciliation Act, 1996 [“the Act”], in which it was contended that the Tribunal had exceeded its jurisdiction in passing the order dated 21.09.2021. VPL, therefore, sought recall of an order dated 27.09.2021, by which the proceedings had been fixed for Panasonic’s evidence on 29.09.2021. The said application has been rejected by an order dated 03.02.2022. The Tribunal held that no ground for recall of the orders dated 21.09.2021 and 27.09.2021 had been made out.

5. The orders of the Tribunal dated 21.09.2021 and 03.02.2022 are under challenge in this petition.

Submissions

6. Mr. Viplav Sharma, learned counsel for VPL, submits that the view taken by the Tribunal is contrary to Section 27 of the Act, which permits an application to the Court for assistance in taking evidence, including summoning of a witness, if necessary. It is Mr. Sharma’s submission that the witness who had been partially cross examined could not have been substituted by another witness on the ground that he had left the services of Panasonic, but the appropriate course would have been for the Tribunal or Panasonic to apply to the Court for assistance under Section 27 of the Act. Mr. Sharma submits that the orders of the Tribunal are inconsistent with this statutory scheme, inasmuch as the Tribunal has held that the substitution of the witness is justified by the circumstance that he has left the employment of Panasonic.

7. Mr. Kunal Kher, learned counsel for Panasonic, who appears on advance notice, objects to the maintainability of the present petition under Article 227 of the Constitution on the grounds raised. He cites the judgments of the Supreme Court in Deep Industries vs. ONGC Limited and Another, (2020) 15 SCC 706 and Bhaven Construction vs. Executive Engineer Sardar Sarovar Narmada Nigam Limited and Another, (2022) 1 SCC 75, and the order dated 18.09.2020 in Punjab State Power Corporation Limited and Another vs. Emta Coal Limited and Another, [Special Leave to Appeal (C) No. 8482/2020] in support of this contention. He also draws my attention to the judgments of Coordinate Benches of this Court in Surender Kumar Singhal and Others vs. Arun Kumar Bhalotia and Others, (2021) SCC Online Del 3708; judgment dated 25.03.2021 in CM(M) 1272/2019 and Ambience Projects and Infrastructure P