Civil Revision No. 4216 of 2011. Case: M/s. Punjab State Industrial Development Corporation Vs Mr. Sunil K. Kansal. High Court of Punjab (India)
| Case Number | Civil Revision No. 4216 of 2011 |
| Counsel | For Appellant: Mr. B.S. Walia, Adv. and For Respondents: Mr. Mukand Gupta, Mr. Arun Palli, Sr. Adv. with Mr. Tushar Sharma, as Amicus Curiae, Mr. U.S. Hooda, Adv. General, Haryana with Mr. S.S. Patter, Sr. D.A.G., Haryana, for the State, Mr. H.S. Sidhu, Addl. A.G., Punjab and Mr. Sanjay Kaushal for the Respondent U.T., Chandigarh |
| Judges | Hemant Gupta and Rajiv Narain Raina, JJ. |
| Issue | Arbitration And Conciliation Act, 1996 - Sections 11, 19, 2, 23, 24, 27, 28, 31, 34, 34(2), 34(2)(a), 34(2)(b), 34(b), 35, 75, 81, 82; Code of Civil Procedure, 1908 - Rules 1, 14, 15, 2, 3, 41, 5(2), 9, 5, 6, 13, 14, 19, 40, XVI, XXIV; Code of Civil Procedure, 1908 - Section 107; Indian Evidence Act, 1872 - Sections 1, 3 |
| Citation | 2013 (1) ArbLR 327 (P&H), 2012 (168) PLR 805 |
| Judgement Date | October 11, 2012 |
| Court | High Court of Punjab (India) |
Judgment:
Hemant Gupta, J.
1. Challenge in the present revision is to an order passed by learned Additional District Judge on 14.3.2011 (Annexure P-2), whereby in an application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short "the Act"), the learned Court has framed the issues and fixed the case for evidence of the objector relying upon the judgment of learned Single judge of this court reported as Amrik Singh and another v. Vardhan Properties Investment Ltd., (2007-1)145 P.L..R. 294. The challenge to the said order is in view of the judgment of Hon'ble Supreme Court reported as Fiza Developers & Inter-Trade P. Ltd. v. AMCI (I) Pvt. Ltd., (2009)17 S.C.C. 796, wherein it has been held that an application under Section 34 of the Act cannot be tried as a regular civil suit and the procedure adopted by the learned Court in framing the issues is not correct. It is argued that calling upon the objector to lead evidence negates the very object of the Act for expeditious conclusion of the disputes with minimal interference by the Courts.
2. When the matter came up for hearing before the learned Single Judge of this Court on 7.5.2012, learned Single Judge expressed reservation with the judgment relied upon by the learned trial Court. In view of the judgment of Hon'ble the Supreme Court in Fiza Developers' case (supra), the following question was framed for the decision by the Larger Bench:-
Whether issues as contemplated under Order 14 Rule 1 CPC should be framed in application under Section 34 of the Arbitration and Reconciliation Act, 1996, keeping in view of Punjab, Haryana and Union Territory, Chandigarh Arbitration and Conciliation Rules, 2003?
3. The matter came up for hearing before this Bench on 17.9.2012. After hearing the arguments at some length, it transpired that all the learned counsel appearing before this Bench are in fact canvassing the proposition that the Principal Civil Court of Original Jurisdiction is not obliged to frame issues. Therefore, to examine the counter view, if any, Mr. Arun Palli, learned Senior Counsel was requested to assist this Court as Amicus Curiae.
4. We have heard the arguments addressed by learned counsel for the parties as well arguments advanced by Advocate General, Haryana, Mr. Sidhu, learned Addl. A.G., Punjab, Mr. Kaushal, learned Advocate for Chandigarh Administration. The learned Amicus Curiae has assisted this Court in commendable manner.
5. On the basis of the arguments advanced, we find that to answer the question of law framed by learned Single Judge, the following aspects need to be taken into consideration:-
1. The extent of applicability of the Code of Civil Procedure and/or Indian Evidence Act to the Arbitral Tribunal and to the Principal Civil Court of Original Jurisdiction;
2. Whether the Punjab, Haryana and Union Territory, Chandigarh Arbitration and Conciliation Rules, 2003 are inconsistent with Section 19 of the Act which contemplates that the provisions of the Code of Civil Procedure shall not be applicable to the proceedings before the Arbitral Tribunal?
6. To examine the contentions raised, certain statutory provisions from the Arbitration and Conciliation Act, 1996; the Code of Civil Procedure, 1908 (for short "the Code") and the Indian Evidence Act 1872, need to be extracted:-
Arbitration and Conciliation Act, 1996
2, (1) In this Part, unless the contest otherwise requires:-
(a) to (d) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx
(e) "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes;
xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx
19. Determination of rules of procedure.- (1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872(1 of 1872).
(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
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23. Statements of claim and defence.- (1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.
(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.
24. Hearings and written proceedings.- (1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents an other materials;
Provided that the arbitral tribunal shall hold hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property.
(3) All statements, documents or other information supplied to, or applications made to, the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
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27. Court assistance in taking evidence.- (1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.
(2) The application shall specify -
(a) the names and addresses of the parties and the arbitrators.
(b) the general nature of the claim and the relief sought;
(c) the evidence to the obtained, in particular,-
(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject matter of the testimony required;
(ii) the description of an document to be produced or property to be inspected.
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34. Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if-
(a) the party making the application furnishes proof that -
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party...
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