The arbitrator has the discretion to determine procedural matters, including the necessity for oral evidence, and courts should only interfere in exceptional circumstances.

JUDGMENT

[VIA VIDEO CONFERENCING]

Amit Bansal, J. (Oral)

CM No.38681/2021 (for exemption) in CM(M) 958/2021; and CM No.38683/2021 (for exemption) in CM(M) 959/2020.

1. Allowed, subject to all just exceptions.

2. The applications are disposed of.

CM(M) 958/2021 and CM No.38680/2021 (for stay); and CM(M) 959/2021 and CM No.38682/2021 (for stay).

3. The present petitions filed under Article 227 of the Constitution of India impugn the order/direction (in the form of minutes of the arbitration meeting dated 7th October, 2021) dated 7th October, 2021 and email dated 12th October, 2021 of the sole arbitrator, issued in two separate arbitration proceedings between the same parties.

4. Vide the impugned order/direction dated 7th October, 2021, the sole arbitrator has observed as under:

"b. It is decided that no further evidence by way of witnesses will be held for the time being. Proceedings of the case will begin straightaway by arguments by both claimant and respondents. This was considered appropriate for curtailing delay and all also dispute being of contractual/tender nature and all issues are communicated by parties in writing which have already been filed by both parties and taken on record."

5. The counsel for the petitioner submits that after the order/direction of 7th October, 2021 was passed by the arbitrator in both the arbitrations, a communication was sent by the counsel for the petitioner to the arbitrator stating that the petitioner be allowed to lead evidence in the matter. The said request on behalf of the petitioner was rejected by the arbitrator vide the impugned email dated 12th October, 2021.

6. The counsel appearing on behalf of the petitioner states that the aforesaid directions passed by the arbitrator are not tenable as the matter requires evidence to be led for proper adjudication of the arbitrations.

7. The counsel for the petitioner submits that, (i) as per Annexure P-12 of the petition being the `Affidavit of Admission Denial of Documents' filed by the respondent herein, the documents filed on behalf of the petitioner have been denied. In view of the denial of the documents as aforesaid, the same would have to be proved by the petitioner by leading evidence; (ii) these are not fast track arbitrations as envisaged under Section 29B of the Arbitration Act that are required to be disposed of in an expeditious manner and therefore, the arbitrator should have allowed the parties to lead oral evidence; (iii) as per Sections 19 and 24 (along with proviso thereto) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Arbitration Act'), since there has been no agreement between the parties with regard to the dispensation of oral evidence, the arbitrator ought to have given the opportunity to the petitioner to lead evidence; and (iv) as per the proviso to Section 24 of the Arbitration Act, unless otherwise agreed to by the parties, the arbitral tribunal has to hold oral hearings for the presentation of evidence.

8. The counsel appearing on behalf of the respondent on advance notice submits that (i) the arbitrator, who is not a legally trained person but a retired Chief Engineer of Bharat Sanchar Nigam Limited, has taken a considered decision that no evidence by way of witnesses shall be held for the time being and he shall straightaway proceed with arguments of both the claimant and the respondent in order to curtail delay; (ii) as per Sections 19 and 24 of the Arbitration Act, failing any agreement existing between the parties, the arbitrator is free to consider the proceedings in the manner