The main legal point established in the judgment is that an affidavit is not ordinarily required to be filed with an application under Section 34 of the Arbitration and Conciliation Act, 1996, and no notice or hearing is required before allowing a party to file a rejoinder.

JUDGMENT

Nirmaljit Kaur, J. - The present revision is filed for setting aside the order dated 31.10.2018 vide which an application seeking permission to file rejoinder moved on behalf of the petitioner (respondent herein) was allowed as well as the order dated 02.04.2019 and 16.05.2019 passed by the Additional District Judge-cum-Presiding Judge, Special Commercial Court at Gurugram, vide which the parties were directed to furnish proper affidavit in support of the pleadings.

2. An Award dated 12.12.2017 came to be passed for an amount of Rs. 35.13 crores, to be paid by the respondent. The respondent filed objections to the Award by way of an application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, 'the 1996 Act') on the ground that the Award has been passed in excess and constitutes improper exercise of jurisdiction on the part of the learned sole Arbitrator. The claimant-petitioner filed their reply dated 04.07.2018 to the above application praying for dismissal of the said application. The claimantpetitioner also filed their cross-objections under Order 41 Rule 22 of the Code of Civil Procedure (for short,'CPC'). An application for dismissal of the cross-objections was also filed. The respondent, accordingly, moved an application for granting permission to file rejoinder to the reply filed by the petitioner. Learned Additional District Judge-cum-Presiding Judge, Special Commercial Court, Gurugram allowed the application for filing the rejoinder and vide order dated 02.04.2019 and again on 16.05.2019 directed the parties to furnish proper affidavits in support of the pleadings.

3. While praying for setting aside the orders dated 31.10.2018, 02.04.2019 and 16.05.2019, learned counsel for the petitioner submitted as under:

(a) that the Court cannot direct for furnishing of the affidavits in order to adjudicate the question before it and under no circumstances, the Court can take evidence or affidavit regarding anything in an application under Section 34;

(b) the application under Section 34 of the 1996 Act is not a suit and is only an application. Hence, no affidavit is required;

(c) The proof is required to be furnished by a party only qua what is not available on the record of the Arbitrator and only in exceptional cases;

(d) Reliance was placed on the judgment rendered by the Apex Court in the case of Emkay Global Financial Services Limited vs Girdhar Sondhi, (2018) 9 SCC 49 to support his argument;

(e) No order for filing rejoinder could have been passed and that too without giving any opportunity to the petitioner to file reply to the application seeking the filing of rejoinder as the application under Section 34 of the 1996 Act is not a suit and no trial can be held.

(f) The rejoinder/replication can be permitted to be filed only in a civil suit under Order 8 Rule 9 of CPC and Order 8 Rule 9 of CPC and CPC was not applicable to the proceedings held under Section 34 of the 1996 Act.

(g) The object behind doing away with the filing of the affidavit was to reduce the delay in deciding the application under Section 34 of the 1996 Act to a minimum.

4. Learned counsel for the respondent, on the other hand, while referring to the provisions of the Commercial Courts Act, 2015 (for short, 'the 2015 Act') submitted that in Order VI, after Rule 3, Rule 3-A has been inserted, which provides for pleadings in a particular form and after Rule 15, Rule 15-A has been inserted, which requires the pleadings in the commercial dispute to be verified by an affidavit in the manner prescribed in the schedule. A perusal of the said declaration in the form of affidavit in 'Appendix I', as per the first Schedule, Order VI, Rule 15-A and Order XI, Rule 3 shows that it is simply to verify the pleadings and nothing more. The same does not amount to any evidence or leading of any evidence. Secondly, since the very matter is pending before the Commercial Court, the matter has to be proceeded as per the provisions of the 2015