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2024 Supreme(Online)(Del) 31885
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. Hari Shankar, J
BPT INFRA PROJECT PVT. LTD. – Appellant
Versus
INDRAPRASTHA ICE AND COLD STORAGE PVT. LTD. – Respondent
O.M.P. (E) (COMM.) 20/2024
For the Appellants/Petitioners: Mr. Akshu Jain, Ms. Stuti Jain, Ms. Vishwa Bharti
For the Respondents: Mr. Naman Joshi, Mr. Aryan Verma
The court holds that under Section 27 of the Arbitration and Conciliation Act, the tribunal must consciously consider the relevance of witnesses' testimony, prohibiting mere mechanical approvals.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 27 - Assistance of court for summoning witnesses - Petitioner seeking evidence from two official witnesses related to an arbitration matter regarding contract execution - Tribunal directed petitioner to approach the court for witness summoning. (Paras 1, 28, 31)
(B) Relevance of Evidence - Tribunal must apply mind to relevance of evidence sought to be produced - Mere mechanical approvals not permissible - Judicial discretion emphasized under Section 27(1) of the Arbitration Act. (Paras 10, 20, 26)
Facts of the case:
The petitioner was awarded a construction contract, which was alleged to have been improperly terminated by the respondent, leading to claims of expected lost profits in arbitration.
Findings of Court:
The Arbitral Tribunal found the witnesses' testimony relevant for the case and acknowledged the petitioner's justification for summoning them.
Issues: The main issue addressed was whether the Tribunal had properly applied mind to the evidentiary relevance of the witnesses’ testimony sought by the petitioner.
Ratio Decidendi: The court emphasized that the arbitral tribunal’s approval of witness summoning must reflect conscious application of mind regarding the evidence's relevance, beyond mechanical consent.
Result: Petition allowed.
| Table of Content |
|---|
| 1. details on the contractual dispute and summoning witnesses. (Para 2 , 3) |
| 2. emphasis on non-mechanical application of mind by the tribunal. (Para 12 , 20 , 21) |
| 3. court enables witness summoning and allows the petition. (Para 27 , 31) |
JUDGMENT (ORAL)
% 10.07.2024
1. The present petition under Section 27 , [$~26] of the Arbitration and Conciliation Act, 1996 seeks the assistance of the Court to summon two official witnesses namely Mr. D.P. Singh, Flat no. 262, Plot no. 6,Samrat Ashoka Enclave, CGHS, Sector-18A, Dwarka, Delhi and Mr. S.C. Jain, or any other authorised person from M/s Architect Bureau, the respondent’s Consultant, at 13A, Palam Marg, Vasant Vihar, New Delhi-110057.
2. Given the limited nature of the application, one need not delve deep into the controversy before the learned Arbitral Tribunal. Suffice it to state that the petitioner had been awarded the construction contract by the respondent for setting-up of a CA (Control Atmosphere Storage) Plant of the respondent at Kullu, Himachal Pradesh.
3. The cost of the contract was enhanced, while it was being performed, from ₹ 10 crores to ₹ 20 crores. The petitioner contended that this was done mala fide so as to ensure that the petitioner could not carry out the contract and that, for untenable reasons, the contract was terminated. The petitioner, therefore, claims, in the arbitral proceedings, expected loss of profits.
4. It is not for this Court, in these proceedings, to comment on the merit of the petitioner’s claim which is subject matter of proceedings before the learned Arbitral Tribunal.
5. During the course of proceedings, the petitioner filed an application under Section 27 of the 1996 Act, from the order passed in which the present petition emanates. The application reads thus:
2. That the Claimant needs assistance of the Hon'ble Court to summonthefollowingwitness (es)from thesaidlist ofwitness:
(i) Sh. D.P. Singh, R/o Flat no.262, Plot no. 6, Samrat AshokaEnclave,CGHS,Sector-18A,Dwarka,Delhi
(ii) Sh. S.C. Jain or any other authorised person from M/s Architect Bureau, Consultant of Respondent, 13A, Palam Marg,Vasant Vihar,NewDelhi-110057
3. That M/s Architect Bureau was the architect consultant engaged by the Respondent. The said witness is required to depose regarding the changes made/directed by the respondent from to time in the project in question including the change in the lay-out plan. Further, he is also required to prove the documents being Annexure C-19, Annexure C-20 and Annexure C-21 as he is the author of thesaiddocument.
4. That Sh. D.P. Singh was the Chief Consultant deployed by the Respondent. The said witness is required to depose regarding the direction issued by the Respondent and changes directed to be made from time to time. Further, he is also required to prove the documents being Annexure C-18 i.e. the e-mail dated 10.03.2022 writtenbyhim.
Therefore, in light of the facts and circumstances explain above, the Hon'ble Tribunal is requested to allow the present application to seek assistance of the Hon'ble Court to summon the said witness(es).
NewDelhi Stuti JainandAkshu Jain
Dated: 01.03.2024 Counsel fortheclaimant”
6. Clearly, therefore, the application sets out the reasons why the petitioner desired the summoning of Mr. D.P. Singh and Mr. S.C. Jain as witnesses.
7. The learned Arbitral Tribunal passed the following order, on the petitioner’s application, on 15 May 2024:
No arbitral proceedings could take place on 24.04.2024, since the Ld. Counsel for the Claimant had requested for adjournment on the groundthat hewas busy intheHon'bleSupreme Court.
Today CW-3 Shri Sant Lal has been further cross examined by the Counsel for the Respondent and his cross examination has been concluded.
It is observed that an application was filed by the Claimant under Section 27 of the Arbitration & Conciliation Act, 1996 (As amended upto date) for seeking the assistance of the Hon'ble Court for summoning the witnesses namely Shri D.P. Singh and Shri S
