Judgment:
1. By this review petition filed under Section 114 of the Civil Procedure Code, 1908, the petitioner seeks recall of the order dated 11th September 2015 passed by this Court in arbitration petition which was filed by the respondent herein under Sections 27(1) and 27(2) of the Arbitration and Conciliation Act, 1996, inter alia, praying for an order and direction against the review petitioner to provide access and inspection to the entire claim file of the respondent herein from the claim intimation letter till the claim discharge voucher on the records of the review petitioner along with all its proceedings therein and sought permission to have the photocopies certified by the review petitioner. The respondent herein had also applied for issuance of witness summons to three persons including the two of the Surveyors appointed by the review petitioner. The respondent herein was the original claimant whereas, the review petitioner was the original respondent in the arbitral proceedings.
2. At the threshold, learned counsel appearing for the respondent herein (original petitioner) raises an issue of maintainability of this review petition on the ground that there is no provision under the Arbitration and Conciliation Act, 1996 which permits filing of a review petition. Some of the relevant facts for the purpose of deciding this review petition are as under:-
3. The review petitioner had issued a policy in favour of the respondent herein. The dispute arose between the parties. By an order dated 17th November 2014 passed by the learned designate of the Chief Justice, a Senior Advocate of this Court came to be appointed as a Sole Arbitrator for deciding the dispute between the parties arising out of the said policy issued by the review petitioner. It was clarified that the issue as to 'whether there was an accord and satisfaction and discharge of the contract' shall be decided by the learned arbitrator and it would also be open to the review petitioner to lead evidence before the arbitrator to establish that there was a valid and binding discharge of the contract by way of accord and satisfaction.
4. On 5th January 2015, the learned arbitrator, upon hearing both the parties through their learned counsel and by consent of the parties, issued various directions. It was directed in the said Minutes of meeting that the next meeting of the tribunal would be held on 13th February 2015 for further directions regarding inspection of documents, admission and denial of documents, for settling the issues/points for determination and for giving further directions regarding filing affidavits of evidence, cross-examination etc. In the said Minutes of meeting, the learned arbitrator has also recorded the agreement of the parties that the service of pleadings, applications, notices and communication etc. shall be considered as sufficient, if effected upon the learned advocates on record representing the parties at their addresses mentioned in the said Minutes of meeting. At the relevant time, Ms.Sneha S.Diwedi, Advocate was representing the review petitioner and Mr.Shabbir T. Kapadia, Advocate was representing the respondent herein. Pursuant to the said directions issued by the learned arbitrator, the parties filed their pleadings along with the documents.
5. The next meeting was held by the learned arbitrator on 27th March 2015. The parties had exchanged the draft issues. The learned arbitrator recorded that the claimant's advocate had informed that the documents which the claimant would be relying upon had already been annexed to the statement of claim filed by the claimant/ respondent herein. The learned arbitrator directed the review petitioner to file its compilation of documents on or before 17th April 2015 and further directed that the admission and denial of the documents of both sides shall be completed on or before 13th April 2015. In paragraph 8 of the said Minutes of meeting, the learned arbitrator recorded the statement made by the claimant/respondent herein through their counsel that at that time they did not desire to lead any oral evidence in the matter and if they desire to lead any oral evidence, then they should inform the review petitioner's advocate about the same on or before 13th April 2015 and shall serve an affidavit of evidence of their witness/es on or before 17th April 2015. The learned arbitrator further recorded that since at that stage, the claimant/respondent herein did not desire to lead any oral evidence in the matter, the affidavit of evidence of the review petitioner's witness/es, if any, to be served and submitted on or before 17th April 2015. The learned arbitrator further directed that after recording the oral evidence, the parties would commence their arguments.
6. On 9th April 2015, the respondent herein submitted additional documents with the claim petition before the learned arbitrator.
7. The next meeting of the learned arbitrator was held on 30th April 2015. The learned arbitrator framed additional issue as to âwhether the claimant proves that it has executed the discharge/loss voucher on 22nd May 2013 without free consentâ? In view of the additional issue framed by the learned arbitrator, both the parties were granted liberty to submit further documents, if they so desired by 11th May 2015. The learned arbitrator granted one more opportunity to the parties to complete inspection of documents by 18th May 2015 and to complete admission and denial of documents by 25th May 2015.
8. The respondent herein through their advocates made a statement that the respondent herein did not desire to lead any oral evidence of any witnesses. The review petitioner through their advocate made a statement that they would lead oral evidence and file affidavit of examination-in-chief on or before 1st June 2015.
9. On 20th May 2015, the respondent filed a statement of their admission and denial of the documents which were annexed by the respondent herein to their statement of claim and the rejoinder. In the said statement of admission and denial of the documents, the review petitioner herein denied several documents which were relied upon by the respondent herein in their statement of claim and the rejoinder.
10. On 13th July 2015, the respondent herein filed an application before the learned arbitrator stating that since the review petitioner had preferred to admit certain documents and deny various documents, the respondent herein requested for an opportunity to prove all the documents. It was mentioned in the said application that the denial of the documents by the review petitioner in the opinion of the claimant/respondent herein was unwarranted. The respondent herein sought leave to prove all the documents denied by the review petitioner.
11. The review petitioner opposed the said application filed by the respondent herein by filing a reply on 13th July 2015 on the ground that the respondent herein had already expressed in the arbitration meeting held on 27th March 2015 that they did not desire to lead any oral evidence. They were again granted liberty to lead oral evidence in the meeting held on 30th April 2015 but they again declined to lead any oral evidence. It is stated that since the respondent herein declined to lead any oral evidence, the review petitioner expressed their desire to lead evidence and accordingly, the learned arbitrator had directed the review petitioner to file affidavit of examination-in-chief on or before 1st June 2015. The review petitioner accordingly served affidavit in lieu of examination-in-chief of Mr.V.C. Bhatia upon the claimant's advocate on 16th June 2015. The application of the respondent herein was also opposed on the ground that the same was in breach of the agreed procedure as contemplated under Section 19(2) of the Arbitration and Conciliation Act, 1996 and the same would be in violation of natural justice and without following due process of law.
12. In the meeting held on 13th July 2015, the learned arbitrator recorded a statement of the review petitioner made through their learned counsel that though in the list of admission and denial, the review petitioner had originally denied the documents at serial nos.12 and 14, in the said meeting, it was stated that the review petitioner admitted the existence of the said documents but denied the correctness of the contents thereof. The learned arbitrator took the admitted documents on record and marked such documents as exhibits. The review petitioner also denied before the learned arbitrator one of the documents out of three additional documents which were filed by the respondent herein under a covering letter dated 9th April 2015. In respect of the remaining two documents, the review petitioner admitted the existence of the said documents but disputed the contents thereof. In the said meeting, the learned arbitrator marked various documents of the respondent as exhibits.
13. In the said meeting, the learned arbitrator in paragraph 8 of the Minutes of meeting recorded that at this stage, the claimant's advocate sought leave to file an application to prove all documents denied by the respondent and had filed a handwritten reply to the application. The review petitioner had filed reply to the said handwritten application. The learned arbitrator heard both the parties through their learned counsel in the said meeting. Learned arbitrator recorded that the respondent herein had realized today at the time of marking the documents as exhibits that the claimant would be required to prove the documents denied by the review petitioner. It is accordingly held that even though the parties may have agreed to the procedure under Section 19(2) of the Arbitration and Conciliation Act, 1996, the learned arbitrator felt that one more opportunity be given to the respondent herein to present their case and for that purpose, to prove the documents denied by the review petitioner. The learned arbitrator directed that the respondent herein may take such steps as may be advised and accordingly allowed the said application filed by the respondent herein. It was further directed that though the witness of the review petitioner was present in the meeting for his cross-examination, the same could not be proceeded with in view of the application filed by the respondent herein. The learned arbitrator accordingly directed the respondent to pay costs of Rs.5,000/- to the review petitioner and adjourned the meeting till 7th August 2015.
14. On 25th July 2015, the respondent herein through their advocate filed an application before the learned arbitrator for a direction and order for production of documents along with annexures mentioned in the said application and serve a copy thereof upon the learned advocate representing the review petitioner herein. It was mentioned in the said application that the learned advocate for the review petitioner had failed to give inspection of documents demanded by the respondent herein by their advocate's letter dated 15th July 2015. The respondent herein accordingly prayed for an order of inspection of documents as sought in the letter dated 15th July 2015 and prayed that the same be granted before the next date i.e. 7th August 2015. Along with the said letter dated 15th July 2015, the respondent herein also forwarded a cheque of Rs.5,000/- for the costs awarded to the review petitioner by the learned arbitrator.
15. On 7th August 2015, the respondent herein filed an application stating that they wish to examine two Surveyors and the Branch Manager as their witnesses and that the witness summons be issued upon them with a direction to remain present along with full set of documents. On 7th August 2015, the review petitioner herein opposed the said application and requested the learned arbitrator to direct the respondent to proceed with the arbitral proceedings by cross-examining the witnesses of the review petitioner.
16. On 7th August 2015, after hearing both the parties through their respective advocates, the learned arbitrator passed an order and referred to his earlier order dated 13th July 2015 wherein a direction was issued in paragraph 12 of the said order that he felt that one more opportunity be given to the respondent herein to present their case and to prove the documents denied by the review petitioner and for that purpose, the respondent herein may take such steps, as may be advised. Learned arbitrator considered the documents i.e. claim file and Inward Register relevant for adjudicating the dispute between the parties.
17. In so far as the prayer for issuance of witness summons to two of the Surveyors is concerned, the learned arbitrator observed that several letters were addressed by the said two Surveyors which the respondent herein seeks to rely upon but which have been denied by the review petitioner and thus their evidence would be relevant in adjudicating the dispute between the parties. In so far as the witness summons sought to be issued to the branch of the review petitioner is concerned, the learned arbitrator was of the view that the respondent herein had not been able to show that as to how the said party is necessary for adjudicating the dispute between the parties. The respondent herein had not been able to show any correspondence exchanged between the respondent herein and the Nana Chowk Branch of the review petitioner.
18. In paragraphs 12 and 13 of the said order, the learned arbitrator held that he did not find any provision of law empowering the arbitrator to pass directions and orders for inspection/ production of documents or for issuing the witness summons. It is held that the objection of the review petitioner herein in that regard seems to be correct. It is further held that Section 27 of the Arbitration and Conciliation Act, 1996 would be applicable in the present case. Learned arbitrator held that as an arbitrator, since he did not have power to pass directions and order for production of the documents or for issuing the witness summons, he rejected both the applications filed by the respondent herein. In paragraph 14 of the said order, however, the learned arbitrator granted approval to the respondent herein to file necessary application to this Court as contemplated under Section 27 of the Act in respect of the claim file of the respondent herein, from the claim intimation letter till the discharge voucher on the records of the review petitioner and to issue witness summons upon the two Surveyors holding that the same would be consistent with his earlier order dated 13th July 2015. The leaned arbitrator did not grant approval in respect of the Inward Register in view of the statement made by the learned counsel representing the review petitioner that his client did not have any such Inward Register. Similarly, the learned arbitrator did not grant approval for issuance of witness summons upon the Churchgate Branch or Fort Branch of the review petitioner. By the said order dated 7th August 2015, the learned arbitrator disposed of the said two applications filed by the respondent herein granting approval in favour of the respondent herein under Section 27 of the Act and to seek assistance from this Court.
19. The respondent herein thereafter made an application on 12th August 2015 for speaking to the minutes of the said order dated 7th August 2015. The review petitioner opposed the said application for modification of the order on various grounds. In the affidavit-in-reply, the review petitioner submitted that it was participating in the proceedings 'under protest,' reserving right to take appropriate steps including the decisions dated 13th July 2015 and 7th August 2015 passed by the learned arbitrator.
20. The learned arbitrator considered the said application for modification of the earlier order dated 7th August 2015 and granted approval to the respondent herein to file necessary application to this Court as contemplated under Section 27 of the Act for issuance of the witness summons also upon the Branch Manager, Bank of India, Nana Chowk Branch, Mumbai- 400 007 and adjourned the matter to the next date for hearing by consent of the parties on 12th September 2015.
21. On 4th September 2015, the respondent herein filed the Arbitration Petition No. 1544 of 2015 in this Court under Section 27 of the Arbitration and Conciliation Act, 1996, inter alia, praying for an order and direction against the review petitioner for providing access and inspection of various documents and for issuance of witness summons upon three of the witnesses pursuant to the order passed by the learned arbitrator.
22. On 4th September 2015, the learned advocate representing the respondent herein served the copy of the arbitration petition along with the annexures upon the review petitioner at their office address at Churchgate, Mumbai - 400 020 and informed that the matter would be mentioned on 8th September 2015 at 11.00 a.m. before this Court.
23. The learned advocate representing the respondent herein issued a fresh notice on 8th September 2015 recording that the notice along with papers and proceedings were already served upon the review petitioner on 4th September 2015 and further informing that this Court had allowed circulation of the said arbitration petition for 11th September 2015. The respondent herein along with the said notice also enclosed a copy of the notice dated 4th September 2015.
24. This Court passed an order allowing the said arbitration petition in terms of prayer clauses (a) and (b) and directed the review petitioner to furnish inspection of documents to the respondent herein within two weeks from the date of communication of the said order dated 11th September 2015. In so far as the issuance of the witness summons is concerned, the respondent herein was directed to disclose next date of hearing before the learned arbitrator to enable the office to issue witness summons with a direction to witnesses to remain present on the date mentioned in the witness summons and also on the subsequent dates as and when required. This Court also directed the review petitioner to furnish copies of the documents to the respondent herein at the time of furnishing inspection thereof on payment of requisite photocopying charges.
25. The respondent herein through their advocate's letter dated 11th September 2015 informed the learned arbitrator and also the learned advocate representing the review petitioner of the order passed by this Court on 11th September 2015 and requested the learned arbitrator to postpone the meeting proposed for 12th September 2015. On 15th September 2015, the respondent herein through their learned advocate called upon the review petitioner to furnish inspection of the claim file and also furnished a copy of the order dated 11th September 2015 passed by this Court. By the said order, the respondent herein called upon the review petitioner to fix the date for offering inspection of the claim file as per the order passed by this Court.
26. By their advocate's letter dated 30th September 2015, the respondent herein addressed to the review petitioner sent reminder for inspection of claim file and requested to fix time for inspection. A copy of the said letter also sent to the learned arbitrator as well as the learned advocate representing the review petitioner. On 30th September 2015, the review petitioner filed this review petition, inter alia, praying for recall of the order dated 11th September 2015 passed by this Court.
REASONS AND CONCLUSIONS:-
27. In so far as the submission of the learned counsel for the respondent that the review petition is not maintainable and submission of the learned counsel for the review petitioner that since the service of the notice and papers and proceedings was not effected on the learned advocate representing the review petitioner and an ex-parte order was obtained by the respondent herein, the review petition is maintainable is concerned, it was strenuously urged by the learned counsel for the review petitioner that under Section 19(2) of the Arbitration and Conciliation Act, 1996, both the parties had agreed that all the notices and papers and proceedings shall be served upon the learned advocates representing the parties whose names were mentioned in the Minutes of meeting dated 5th January 2015 held by the learned arbitrator. The submission of the learned counsel for the respondent, on the other hand, is that though the parties had agreed before the learned arbitrator that papers and proceedings as well as all the notices of the arbitral proceedings would be served on the advocates representing the parties before the learned arbitrator, the said agreement recorded by the learned arbitrator would not apply in case of the proceedings, if any, filed by any of the parties to the arbitration proceedings in Court. He submits that in any event, the respondent herein had already informed the learned advocate for the review petitioner as well as the learned arbitrator that the respondent herein would be filing a petition in this Court for issuance of witness summons and for other directions. He submits that the respondent herein thus was not bound to serve notice and papers and proceedings of the arbitration petition upon the learned advocate representing the review petitioner in the arbitral proceedings. He submits that two notices were served upon the review petitioner at their office address.
28. It is not in dispute that the parties had agreed in the arbitral proceedings that all pleadings and the notices shall be served upon the learned advocate representing each of the parties relating to the arbitral proceedings before the learned arbitrator. In my view, the said agreed procedure for service of the pleadings and the notices in the arbitral proceedings will not apply in case of the parties filing any arbitration petition or any other application in Court. Under Section 3 of the Arbitration and Conciliation Act, 1996, unless otherwise agreed by the parties, any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address. There was no agreement between the parties that if any proceedings were filed in Court by any of the parties to the arbitral proceedings, the same shall also be served upon the learned advocate representing the opposite party. It is not the case of the review petitioner that the notices were not received by the review petitioner at the office address of the review petitioner and that such offices were not at all concerned with the subject matter of the arbitral proceedings.
29. Be that as it may, since both the learned counsel appearing for the parties have addressed this Court also on merits of the matter, whether service of the notices and papers and proceedings ought to have been effected upon the learned advocate representing the review petitioner in view of the agreed procedure under Section 19(2) of the Arbitration Act arrived at before the learned arbitrator is of no significance. For the same reason, it is also not necessary for this Court to go into the issue of maintainability of the review petition.
30. In so far as the submission of the learned counsel for the review petitioner that in view of the respondent herein already having made a statement before the learned arbitrator that they did not propose to lead any oral evidence, the learned arbitrator could not have permitted the respondent to lead oral evidence or seek inspection of documents or could not have permitted the respondent herein to seek assistance of this Court in taking evidence is concerned, a perusal of the order passed by the learned arbitrator clearly indicates that though the respondent herein had initially made a statement that they did not propose to lead any oral evidence at that stage, in view of the review petitioner filing the statement of admission and denial which was subsequently revised, the learned arbitrator felt it proper to give an opportunity to the respondent herein to seek assistance of this Court under Section 27 of the Arbitration and Conciliation Act, 1996. The learned arbitrator passed an order on 13th July 2015 after hearing the learned counsel for both the parties and held that in his opinion, it would be appropriate in the interest of justice to allow the respondent herein to give them one more final opportunity to prove their documents denied by the review petitioner. The cross-examination of the witnesses of the review petitioner had not yet commenced and no effective progress had been made in the arbitration after filing of the statement of admission and denial by the review petitioner. The learned arbitrator had also directed the respondent herein to pay costs of Rs.5,000/- which was forwarded by the respondent herein to the review petitioner.
31. A perusal of the order dated 7th August 2015 passed by the learned arbitrator clearly indicates that in the said order, the learned arbitrator referred to his earlier order dated 13th July 2015 and after hearing both the learned counsel for the parties held that the claim file and Inward Register would be relevant for the purposes of adjudicating the dispute between the parties. The claim file pertains to the claim made by the respondent herein with the review petitioner-Insurance Company. However, since the review petitioner through the learned counsel made a statement that they did not have such Inward Register, the learned arbitrator did not grant permission in respect of the said documents. In so far as the issuance of the witness summons to two Surveyors and the Branch of the review petitioner is concerned, the learned arbitrator has observed that there were several letters addressed by the said two Surveyors which the respondent herein seeks to rely upon but which have been denied/not admitted by the review petitioner in adjudicating the dispute between the parties.
32. It is held by the learned arbitrator that since he however did not have any power to pass such directions and orders for inspection/ production of documents or for issuing witness summons, he was granting approval to the respondent herein to file necessary application to this Court as contemplated under Section 27 of the Act in consistent with the earlier order dated 13th July 2015. A perusal of the order dated 2nd September 2015 passed by the learned arbitrator which was passed on the application made by the review petitioner for speaking to the minutes/modification of the order dated 7th August 2015 indicates that by the said order, this Court modified the earlier order dated 7th August 2015 and granted approval to the respondent herein to file necessary application to this Court under Section 27 of the Act for issuance of the witness summons also to the Branch Manager, Bank of India, Nana Chowk Branch, Mumbai - 400 007.
33. Learned counsel for the review petitioner urged before this Court that though the said order passed by the learned arbitrator granting permission to the respondent herein to seek assistance of this Court under Section 27 of the Arbitration Act can be challenged by the review petitioner along with the final award under Section 34 of the Arbitration Act, if the same is adverse to the review petitioner, but at the same time, merely because the learned arbitrator has granted such permission, this Court cannot pass an order of administrative nature without going into the issue whether such order could be at all passed by the learned arbitrator. To buttress his argument the learned counsel for the review petitioner gave an illustration before this Court that if the learned arbitrator would have permitted the respondent herein to take assistance of this Court for issuance of witness summons upon the President of India, whether this Court can issue such witness summons without going into the issue whether such permission given to the review petitioner was valid or not.
34. This Court in the case of Harinarayan G.Bajaj Vs. Sharedeal Financial Consultants Pvt. Ltd., reported in 2003(2) Mh.L.J. 598 has held that the order rejecting the application under Section 27 of the Act is a decision and/or order and it would, therefore, be open to the parties, if finally aggrieved by an award, to challenge the award in which the order has merged under Section 34(2) of the Act if in law a challenge would be available under that Section. In that matter, the learned arbitrator had rejected the application of the party for seeking assistance of this Court under Section 27 of the Act which order was impugned in the arbitration petition. In this case, the learned arbitrator had granted permission to the respondent herein to seek assistance of this Court. In my view, this Court cannot go into the validity of the said order passed by the learned arbitrator in the proceedings filed by the party under Section 27 who was granted such permission by the learned arbitrator for seeking assistance of this Court. If the award is adverse against the review petitioner, the review petitioner can challenge the award along with the said order passed by the learned arbitrator granting permission to the respondent herein to seek assistance of this Court under Section 27 of the Act, if in law a challenge would be available otherwise under Section 34(2) of the Arbitration Act.
35. This Court in the case of Rasiklal Ratilal Vs. Fancy Corporation Ltd. and Anr., reported in 2007 (109) Bom. L.R. 880 has considered the powers of the Court under Section 27 of the Arbitration and Conciliation Act, 1996. It is held that the Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal and while making an order under Sub-section (3) of Section 27 of the Act, issue the same processes to witnesses as it may issue in suits tried before it. This Court also considered the powers of the Court under Order XVI Rule 6 and also Order XIII Rules 1 and 9 of the Civil Procedure Code, 1908 while passing such order by the Court under Section 27 of the Arbitration Act.
36. This Court has also held that considering the scheme of the Arbitration Act, it is not possible for the Court to interfere with the proceedings which are pending before the arbitral tribunal. The Arbitrator is a master of his own proceeding. The Court normally should not direct or re-schedule the proceeding of the learned arbitrator. It is also held that considering the scheme of Section 27 of the Arbitration Act, there is no procedure available whereby the Court should give hearing to the witness or a party against whom the Court wants to issue directions to produce record or to issue summons for witness. Such hearing is not at all contemplated under this provision and/or even in any other provision of Code of Civil Procedure, 1908. Once the Court comes to a conclusion that these documents are required for adjudication of the issues in the peculiar facts and circumstances of the case, it can issue direction or pass such an order to produce the original documents before the learned arbitrator directly. It is held that the Court's assistance in taking evidence as contemplated is restricted only to this extent of giving direction to the parties to produce the documents or issue summons to witnesses. In the said judgment, however, this Court directed the bank for production and deposit of the original documents with the learned arbitrator.
37. The Division Bench of this Court, in the case of Janakalyan Sahakari Bank Ltd. Vs. M/s. Rasiklal Ratilal and Anr. decided on 12th July 2007 in Appeal (L) No.557 of 2007 which was filed by the bank arising out of the judgment reported in 2007 (109) Bom. L.R. 880, partly modified the order passed by the learned Single Judge referred to aforesaid to the limited extent that the bank shall produce the original documents before the learned arbitrator as directed along with the certified true copies thereof with a direction to the learned arbitrator to return the original documents to the bank. In so far as the law laid down by this Court in the said judgment in the case of Rasiklal Ratilal Vs. Fancy Corporation Ltd. and Anr. (supra) is concerned, the same is upheld by the Division Bench.
38. This Court in the case of United Spirits Ltd., Bangalore Vs. Delta Distilleries Ltd., Mumbai and Anr., reported in 2012 (6) Mh.L.J. 522 has considered the powers of the Court under Section 27 of the Arbitration and Conciliation Act, 1996. This Court has also considered the powers of the Court under Section 43 of the Arbitration Act, 1940 which provisions are analogous to the provisions of Section 27 of the Arbitration and Conciliation Act, 1996. This Court has held that Section 27 of the Act specifically provides for enabling the arbitral tribunal to get evidence in the matter with the assistance of the Court which otherwise is not entitled in view of inapplicability of the provisions of Code of Civil Procedure, 1908. It is held that when a party or a witness who has been directed to give evidence or to produce documents before the arbitral proceedings has refused to do so, either the arbitral tribunal itself or a party with the approval of the arbitral tribunal is entitled to apply to the Court for assistance in taking evidence. Subsection (3) of Section 27 of the Act empowers the Court, according to its rules on taking evidence to execute the request by ordering that the evidence would be provided directly to the arbitral tribunal. It is held that the very purpose of the said provisions is to give assistance to the arbitral tribunal to place on record the evidence which the arbitral tribunal finds necessary for complete and effective adjudication of the dispute between the parties. It is held that since the arbitral tribunal is not in a position to compel a party or a witness to give evidence before it or to produce a document before it, Section 27 of the Act has been brought on the Statute, so that it provides aid to the arbitral tribunal in producing evidence if it finds necessary. It is held that a party which has been directed by the learned arbitrator to do something, cannot be permitted to run away from the direction issued by the learned arbitrator, if the Court finds that for effective and complete adjudication in the arbitral proceedings, it is necessary to do so. By the said order and judgment, this Court directed the parties as well as third party to produce certain documents before the learned arbitrator.
39. The Supreme Court in the case of Delta Distilleries Ltd. Vs. United Spirits Ltd. and Anr., reported in 2014 (1) SCC 113 arising out of the order and judgment passed by this Court in the case of United Spirits Ltd., Bangalore Vs. Delta Distilleries Ltd., Mumbai and Anr. (supra) has held that the term 'any personâ™ appearing under Section 27(2)(c) is wide enough to cover not merely the witnesses, but also the parties to the proceeding. The Supreme Court has upheld the order and judgment of this Court in the case of United Spirits Ltd., Bangalore Vs. Delta Distilleries Ltd., Mumbai and Anr. (supra).
40. In my view, the arbitral tribunal cannot issue a witness summons itself or cannot enforce its own order of producing certain documents or cannot force a party or a third party to lead evidence or to produce documents. The arbitral tribunal or a party to the proceedings with the approval of the arbitral tribunal may apply to the Court for assistance in taking evidence. In my view, at this stage, this Court cannot go into the validity and correctness of the order passed by the learned arbitrator granting permission to the respondent herein for seeking assistance of this Court in taking evidence under Section 27 of the Arbitration Act. It is for the arbitrator to decide as to whether particular documents or presence of a particular witness would be necessary for the proper adjudication of the dispute between the parties or not, if any such application is made by the parties to the arbitral proceedings. In these proceedings under Section 27 of the Arbitration Act, this Court cannot decide whether production of such documents or presence of such witness was warranted or not.
41. The purpose of Section 27 of the Arbitration Act, in my view, is to provide assistance to the arbitral tribunal or to a party in taking evidence with a view to expedite the arbitral proceedings. Merely because the arbitral tribunal has no power to issue a witness summons or to compel the attendance of the witnesses, the parties should not suffer. The legislature has inserted the Section 27 of the Arbitration Act to avoid this inconvenience to the parties to the arbitral proceedings and has thus empowered the arbitral tribunal as well as the parties to take assistance of the Court. The Court is empowered to issue direction to a party or even third party to produce documents or witnesses by summoning the party or even third party if the arbitral tribunal has granted permission and is of the opinion that production of such documents or evidence of such party including third party would be necessary for proper and effective adjudication of the dispute before it.
42. In so far as the illustration given by the learned counsel for the review petitioner that even if the learned arbitrator would have granted permission to the respondent herein to examine the President of India, whether this Court could have directed the office to issue witness summons upon the President of India is concerned, in my view, that is not the situation in this case. The illustration given by the learned counsel for the review petitioner, in my view, is totally irrelevant for the purpose of deciding this review petition. A perusal of the order passed by the arbitral tribunal indicates that the learned arbitrator has directed the review petitioner to produce certain documents and has permitted the respondent herein for issuance of the witness summons upon two of the Surveyors and the Branch, which according to the learned arbitrator, would be relevant for the purpose of adjudication of the dispute between the parties.
43. In my view, there is thus no merit in any of the submissions made by the learned counsel for the review petitioner. Though the issue of maintainability of the review petition is raised by the respondent herein, this Court has decided the matter on its own merits and thus, it is not necessary to deal with the said issue of maintainability.
44. I therefore pass the following order:-
(a) The review petition is dismissed. No order as to costs;
(b) The office is directed to comply with the order passed by this Court on 11th September 2015 expeditiously;
(c) The respondent is directed to convey the next date of hearing before the learned arbitrator to the Prothonotary and Senior Master to enable the office to issue summons. Oral application of the learned counsel for the review petitioner for stay of the operation of the order is rejected.