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2026 Supreme(Guj) 472
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRAL R. MEHTA, J.
Jwil Infra ltd. (previously known as jitf water infrastructure limited)
Versus
Aquafil-Wintech Jv & Ors.
R/SPECIAL CIVIL APPLICATION NO. 1309 of 2026
Decided on : 29-06-2026
For the Appellant :MR MIHIR THAKORE SENIOR ADVOCATE WITH MR GAURAV K LAKHWANI(9520) MR NILESH P UDERNANI(9050)
For the Respondent:MR MITUL SHELAT SENIOR ADVOCATE WITH MR RUTUL P DESAI(6498)
Supervisory jurisdiction under Article 227 does not permit interference with a tribunal's discretionary refusal to recall a witness, especially when the issue is barred by constructive res judicata or when the party seeks to revive a previously omitted grievance after the proceedings have significantly progressed.
Headnote:(A) Constitution of India - Article 227 - Arbitration and Conciliation Act, 1996 - Sections 18 and 29A - Code of Civil Procedure - Order XVIII Rule 17 - Supervisory jurisdiction - Scope of interference - Exercise of supervisory jurisdiction under Article 227 is limited and should not be invoked as appellate or revisional jurisdiction to interfere with interlocutory orders of a tribunal unless the order suffers from patent lack of jurisdiction or manifest perversity (Paras 13.1, 13.3).
(B) Witness - Recall of - Discretionary power - No party has an inherent or vested right to seek recall of a witness for further cross-examination or re-examination; such power is intended to be exercised by the tribunal sparingly and only in exceptional cases (Paras 15.1, 15.3).
(C) Res Judicata - Constructive - Finality of litigation - If a party omits to urge a grievance against a component of a composite order in a previous challenge, it waives its right to agitate that in subsequent proceedings and cannot revive it by filing a fresh application long after the order has attained finality (Paras 16.4, 16.5).
(D) Natural Justice - Section 18 of the Arbitration and Conciliation Act - Does not confer an unrestricted or perpetual right to reopen proceedings at the instance of a party who failed to avail opportunities already granted at the appropriate stage (Paras 17.2, 17.3).
Facts of the case:
An application was filed before the arbitral tribunal seeking the recall of a claimant's witness for cross-examination. This followed a series of unsuccessful attempts by the applicant throughout the proceedings to delay or reopen stages that had already concluded. A previous composite application covering multiple procedural issues had been rejected by the tribunal and subsequently upheld by the court, but the specific prayer for witness recall had not been clearly urged or pressed at that time. The current application was filed years later, after the proceedings were in an advanced stage, which the tribunal rejected as frivolous and intended for protracting the litigation.
Findings of Court:
The court observed that the tribunal acted within its discretion and that the refusal to recall a witness did not violate the mandate of fair opportunity. It noted that the petitioner could not use the supervisory jurisdiction to revive a relief that was part of a previously failed challenge, as the principles of finality and constructive res judicata operate against such attempts.
Issues: (i) Whether the court can interfere under Article 227 with an arbitral tribunal’s discretionary refusal to recall a witness; (ii) Whether the principle of constructive res judicata precludes the party from seeking recall of a witness when a similar prayer in a previous composite application was not pushed to a conclusion; (iii) Whether Section 18 of the Act was violated by the denial of further cross-examination.
Ratio Decidendi: The court maintained that the power to recall a witness is at the discretion of the presiding authority and not a vested right of the litigant. Furthermore, when a party fails to press a specific prayer during a prior challenge of a composite order, it is barred from resurrecting that prayer years later, as this would violate the principles of finality and encourage piecemeal litigation. Interference in ongoing arbitral processes via supervisory jurisdiction is restricted to extraordinary circumstances to preserve the legislative intent of expeditious dispute resolution.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. overview of arbitral proceedings and factual background. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. parties' contentions regarding arbitrary denial of procedural fairness. (Para 7 , 8 , 9 , 10) |
| 3. limited supervisory role under article 227 in arbitration. (Para 11 , 12 , 13 , 14) |
| 4. witness recall is discretionary, not a vested right. (Para 15) |
| 5. constructive res judicata prevents reopening settled interlocutory matters. (Para 16) |
| 6. section 18 mandates fair trial without perpetual proceedings. (Para 17) |
| 7. distinguishing facts and final dismissal of petition. (Para 18 , 19 , 20) |
JUDGMENT :
NIRAL R. MEHTA. J.
[1] By way of the present petition under Article 227 of the Constitution of India, the petitioner has invoked the supervisory jurisdiction of this Court, challenging the legality and validity of the order dated 13th December 2025 passed by the learned Arbitrator in Civil Appeal No.46 of 2025 arising out of GCCI-ADC/No.042/2018. By the impugned order, the learned Arbitrator rejected the petitioner’s application seeking recall of the claimant’s witness, Mr. Hitesh Babulal Shah, for the purpose of cross-examination.
[2] The petitioner was the original respondent, whereas the respondents herein were the original claimants in the arbitral proceedings. For the sake of convenience and to avoid confusion, the parties shall hereinafter be referred to according to their respective status before the learned Arbitrator.
[3] The facts giving rise to the present petition, shorn of unnecessary details, may be stated thus:
[3.1] M/s. Guwahati Metropolitan Development Authority (GMDA) entered into an agreement dated 13.03.2012 with the respondent for execution of the Guwahati Water Supply Project (37 MLD), comprising design, supply, installation and commissioning of intake facilities, transmission mains, water treatment plant and reservoir for the North Zone together with operation and maintenance for five years, for an aggregate contract value of Rs.80,89,39,834/-.
[3.2] In the year 2014, the respondent floated a Request for Proposal on a back-to-back basis. Pursuant thereto, M/s. Aquafil Polymers Pvt. Ltd. and M/s. Wintech Engineering Pvt. Ltd., both registered as Micro and Small Scale Industries, constituted an informal Joint Venture under the name “Aquafil-Wintech JV” through a Consortium Agreement dated 02.08.2014 for participating in the tender process. The claimant submitted its bids on 18.07.2014 and 25.07.2014 for Package C-01 valuing Rs.79.47 Crores, and consequently, a back-to-back subcontract dated 08.08.2014 came to be executed between the respondent and the claimant.
[3.3] According to the claimant, the respondent first terminated the portion of the contract relating to the design of the intake well on 18.02.2017 and thereafter terminated the civil and structural work relating thereto on 09.03.2017. Ultimately, by notice dated 08.01.2018 purportedly issued under Clause 19.2.2 of the agreement dated 08.08.2014, the respondent terminated the entire contract. The claimant disputed the legality of such termination by its reply dated 08.02.2018.
[3.4] Initially, the respondent appointed Hon’ble Mr. Justice A.K. Patnaik, former Judge of the Supreme Court of India, as Sole Arbitrator on 26.02.2018. However, before commencement of the arbitral proceedings, the claimant asserted that it was an MSME registered under the Micro, Small and Medium Enterprises Development Act, 2006 and opted to pursue its statutory remedy under the said Act. Accordingly, the arbitral proceedings were kept in abeyance.
[3.5] Thereafter, the claimant filed a reference before the Micro and Small Enterprises Facilitation Council, Gandhinagar on 25.05.2018. Upon failure of conciliation under Section 18(2) of the MSMED Act, the Council, by order dated 30.06.2018, referred the dispute for arbitration to GCCI-ADRC under Section 18(3) of the Act. The respondent challenged the said order by filing Special Civil Application No.11169 of 2018, which came to be dismissed by th
