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A party with the approval of the arbitral tribunal may apply to the Court for assistance in taking evidence u/s 27 of the A&C Act: High Court of Delhi

Section 27 (1) of the Arbitration and Conciliation Act, 1996 enables an application to be made to the Court for assistance in taking evidence. However, the said application is required to be made either by the Arbitral Tribunal or any party, with the approval of the Arbitral Tribunal. If the petitioner does not have any approval of the Arbitral Tribunal to make this application, it is clearly beyond the scope of Section 27 of the A&C Act and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE VIBHU BAKHRU in the case of PSA NITROGEN LIMITED vs. COMPANY SECRETARY GAIL (INDIA) LTD. [O.M.P. (E) (COMM.) 4/2022] on 16.03.2022.

The facts of the case are that by the procedural order passed by the Arbitral Tribunal, the evidence of the petitioner was closed. The said order records the statement made on behalf of the respondent that it did not wish to examine any witness. Therefore, the respondent’s evidence was closed as well. The matter was taken up by the Arbitral Tribunal. The Arbitral Tribunal had noted that no affidavit of any other witness had been filed on behalf of the petitioner, despite several opportunities.

The petitioner has filed the present petition under Section 27 of the Arbitration and Conciliation Act, 1996, praying to pass an Order/Directions to set aside the Order and allow the Petitioner to conduct its evidence and pass necessary order/directions for summoning and taking evidence of Mr. Kotak subramanium as a witness or any other official in place of him.

The learned counsel appearing for the petitioner stated that the petitioner required to examine one further witness who is an officer of the respondent. However, no witness was present on behalf of the petitioner.

The Court held that in the present case, concededly, the petitioner does not have any approval of the Arbitral Tribunal to make this application. On the contrary, the petitioner seeks to challenge the order passed by the Arbitral Tribunal which is clearly beyond the scope of Section 27 of the A&C Act. Therefore, the present petition is misconceived and was accordingly, dismissed. It was observed that, “Section 27 (1) of the Arbitration and Conciliation Act, 1996 enables an application to be made to the Court for assistance in taking evidence. However, the said application is required to be made either by the Arbitral Tribunal or any party, with the approval of the Arbitral Tribunal. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.”

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Judgment reviewed by – Shristi Suman

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