The present petitions were filed under Article 227 of the Constitution of India impugn the order dated 7th October 2021 and email dated 12th October 2021 of the sole arbitrator, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE AMIT BANSAL, in the matter TELECOMMUNICATION CONSULTANTS INDIA LIMITED V. B. R. SUKALE CONSTRUCTION dealt with an issue mentioned above.
The counsel for the petitioner mentioned that after the order of 7 th October 2021 was passed by the arbitrator in both the arbitrations, a communication was sent by the counsel for the petitioner to the arbitrator stating that the petitioner is allowed to lead evidence in the matter. Later the said request on behalf of the petitioner was rejected by the arbitrator vide the impugned email dated 12th October 2021.
Meanwhile, the counsel for the petitioner submits that,
- As per Annexure P-12 of the petition being the ‘Affidavit of Admission Denial of Documents’ filed by the respondent herein, the documents filed on behalf of the petitioner have been denied.
- These are not fast track arbitrations as envisaged under Section 29B of the Arbitration Act that is required to be disposed of expeditiously and therefore, the arbitrator should have allowed the parties to lead oral evidence;
- There was no agreement between the parties concerning the dispensation of oral evidence.
The counsel appearing on behalf of the respondent on advance notice submits that:
- The arbitrator, who is not a legally trained person but a retired Chief Engineer of Bharat Sanchar Nigam Limited, has taken a considered decision.
- As per Sections 19 CM(M) 958/2021 and CM No.959/2021 of the Arbitration Act, failing any agreement existing between the parties, the arbitrator is free to consider the proceedings in the manner it considers appropriate;
- Sailor Associates SA Vs. Bharat Heavy Electrical Ltd, Case was mentioned.
- The hearings in the cases have already been held on 20th and 22nd October 2021 and the remaining final arguments are scheduled from 19th November 2021 onwards.
And many more points were mentioned by the counsellor.
However, in the present petitions, there is no agreement between the parties concerning the procedure for carrying out the arbitration proceedings. In the absence of any agreement between the parties, the sole arbitrator has the absolute authority to decide on whether to allow the evidence in a particular case or to proceed with the adjudication of the matter based on documents and other materials. They also mentioned that no fault can be found in the decision of the arbitrator in this regard.
The reliance of the counsel for the petitioner on the provisos to Section 24(1) of the Arbitration Act is misplaced, There is no merit in the submission of the counsel for the petitioner since, the present arbitrations are not fast track arbitrations as envisaged under Section 29B of the Arbitration Act, there was no requirement to dispense with oral evidence for early disposal of the dispute. Later the counsel for the respondent has rightly relied upon the judgment of this Court in the Surender Kumar Singhal case.
The court perused the facts and argument’s presented , it believed that- “Since no exceptional circumstances or exceptional rarity have been demonstrated/made out in the petitions or during the hearing and given the stage at which the arbitration proceedings are, there is no occasion to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India. 19. In view of the above, there is no merit in the present petitions. 20. The petitions and all pending applications are dismissed”.
Judgment Reviewed by: Mandira BS