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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Aniruddha P. Mayee, J.
AEPL Infrastructure Pvt. Ltd. - Appellant
Vs.
Tehran Jonoob Technical And Construction Company - Respondent
Petn. Under Arbitration Act No. 66 of 2022
Decided On : 05-05-2023
Civil Procedure Code, 1908 – Arbitration and Conciliation Act, 1996 – Section 27 – Extent of judicial intervention – Determination of rules of procedure – Court assistance in taking evidence – Held, Therefore, it is directed that the said witnesses/officers concerned shall remain present along with relevant documents relating to project concerned in dispute before learned Arbitrator on next date of hearing as fixed by learned Arbitrator in arbitral proceedings – It is made clear that this Court has not expressed any opinion on merits as to whether learned Arbitrator was justified in holding that production of additional witness or document was warranted in facts and circumstances of case – Said issue is kept open to enable parties to agitate same on merits at appropriate stage – Petition allowed.
JUDGMENT :
1. The present petition is filed under Section 27 of the Arbitration and Conciliation Act, 1996 praying for the following reliefs:-
b. Summon personnel of IOCL as described under Para 15 of the aforesaid Application to be present before the Ld. Sole Arbitrator as third-party witnesses; and
c. Direct the personnel of IOCL as described under Para 15 of the aforesaid Application to produce Project related documents relied upon by the Petitioner/Respondent before the Ld. Sole Arbitrator;
d. Direct the personnel of IOCL as described under Para 15 of the aforesaid Application to produce Project related documents and communications from August 2020 till date; and
e. Grant any other and further relief(s), order(s), direction(s) as this Hon’ble Court may deem fit and proper in the aforementioned and attending circumstances.”
2. The brief facts leading to filing of the present petition are as under:-
2.2 That the Petitioner and Respondent No. 1 entered into a Prebid Agreement wherein the absolute and complete subcontracting of the works under Group F was termed as strategic alliance.
2.3 That the Respondent, vide its Email, without specifying the exact reason, informed the Petitioner that pipeline laying work from Chainages 158 to 168 at Andhra Site and Chainages 209 to 225 at Karnataka site has been taken over from the Petitioner.
2.4 That the Petitioner sent an Email to the Respondent wherein the Petitioner mentioned that owing to the breaches and the part takeover of the Contract at the hands of the Respondent, the Petitioner would not be in position to execute the Contract.
2.5 That on 17.07.2020 the Arbitration Clause of the Contract was invoked by the Respondent. That on 17.03.2021 the Hon'ble Supreme Court appointed Mr. Justice C. K. Thakker, Former Judge Supreme Court of India as a sole arbitrator to adjudicate the dispute between the Petitioner and Respondent No. 1 in the interest of justice. That the 1st Arbitral Proceeding was held between the parties, headed by a Ld. Sole Arbitrator on 08.04.2021. That the Proceedings in regards to pleading have been completed by the Parties before the Arbitral Tribunal and the evidence by way of affidavit has also been filed by the parties before the Ld. Arbitral Tribunal. Currently, the Arbitration is now at the evidence stage.
2.6 That on 22.12.2021 1st application came to be filed by the Petitioner herein before Ld. Sole Arbitrator, under section 27 seeking approval to approach this Court. That on 07.01.2022 the Reply came to be filed by the Respondents to the 1st application under section 27 seeking approval to approach this Court. That Order dated 21.01.2022 came to be passed by the Ld. Sole Arbitrator on the 1st application filed by the Petitioner herein before Ld. Sole Arbitrator, under section 27 of the Arbitration Act.
2.7 That on 29.01.2022 a 2nd application came to be filed by the Petitioner herein before Ld. Sole Arbitrator, under section 27 of the Arbitration Act. Reply filed by the Respondents to the 2nd application filed by the Petitioner before Ld. Sole Arbitrator, under section 27 of the Arbitration Act. That Order dated 24.2.2022 came to be passed by the Ld. Sole Arbitrator wherein he was pleased to allow the Petitioner to approach this Hon’ble court seeking summoning of 3rd party independent witnesses in the arbitral proceeding “TJTC and Anr. v. AEPL Infrastructure Private Limited”. That on 28.03.2022 an Order was passed by the
Once arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even ....
The Court emphasized that the role under Section 27 of the Arbitration and Conciliation Act is not adjudicatory, but only to grant formal approval of the Arbitrator's order.
The arbitrator has the discretion to determine procedural matters, including the necessity for oral evidence, and courts should only interfere in exceptional circumstances.
The Arbitral Tribunal has the power to rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose, a....
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