The Superintending Engineer, National Highways, Salem v. Vcl. Somasundaram
1992-03-31
ABDUL HADI, VENKATASWAMI
body1992
DigiLaw.ai
Judgment :- Abdul Hadi, J. A short legal point is alone involved in those two appeals arising out of arbitration proceedings. The point is, whether an arbitrator has power to send for the documents required by any of the parties before him. The appellant’s contention is that an arbitrator has no such power and the party requiring any document to be sent for could only move the court for necessary directions. But the contention of the respondent is that an arbitrator himself has such a power. 2. The facts which are necessary for the disposal of those two appeals may now be stated: The dispute is between the contractor, the respondent in both the appeals, and the Superintending Engineer, National Highways, Salem, who is the appellant in both the appeals. Since the contractor could not carry on the work, the appellant terminated the contract. According to the contractor, he could not carry on the work because the appellant who had to supply hot mix plant pavers, etc., did not supply them. The dispute was referred to the named arbitrator, who passed an award rejecting the claim of the contractor that the Government (Appellant) should supply the same and holding that the stand of the Government was correct. Hence, O.P.No.160 of 1978 was filed by the contractor to set aside the award dated 17. 1978 and also O.P.No.228 of 1980 to prevent the Government from enforcing the bank guarantee given by him till the disposal of the O.P.No.228 of 1980. By a common order dated 210. 1984 both O.P.Nos.160 of 1978 and 228 of 1980 were allowed in that in O.P.No.160 of 1978 the award was set aside and remitted back to the arbitrator for fresh disposal according to law, in the light of the observations made in that order and in the light of additional documents produced by both parties. 3. As against order in O.P.No.160 of 1978, A.A.O.No.340 of 1985 has been preferred and as against the order in O.P.No.228 of 1980, A.A.O.No.341 of 1985 has been filed by the appel-lant. The ground on which the abovesaid common order was passed by the court below is that since the required documents were not sent for by the arbitrator, there is a mistake apparent on the face of the record causing prejudice to the contractor which amount to a legal misconduct by the arbitrator. 4.
The ground on which the abovesaid common order was passed by the court below is that since the required documents were not sent for by the arbitrator, there is a mistake apparent on the face of the record causing prejudice to the contractor which amount to a legal misconduct by the arbitrator. 4. Learned counsel for the appellant contends that the arbitrator has no such power to send for any relevant document required by any of the parties and if at all the party requiring the document could only move the civil court for getting necessary directions and that the arbitrator himself could not send for the document. But, on the other hand, learned counsel for the respondent/contractor drew our attention to three decisions, which we find, support his contention that the arbitrator has such power to send for the documents. 5. The first decision is: Y.Ranganathan v. P.L.N.Gupta, A.l.R. 1985 Mad. 348, where a Division Bench of this Court held that any direction by the court to produce documents, while the proceedings before the arbitrator is pending, is not maintainable. The relevant passage in the said decision appearing in paragraph 10 is as follows: “The present prayer for a direction to produce the documents, in our view, is not contemplated by the second schedule to Sec.41 of the Arbitration Act, nor can Sec.31(3) and (4) of the Act be interpreted to include such type of prayers. The Arbitrator is seized of that matter and he has also made certain observations and given some directions on the applications filed by the appellants, which we have extracted in paragraph supra. To allow such petitions to be filed before court for directions to produce documents will open the floodgates of litigation and the court will be mulcted with many number of petitions of this nature leaving the Arbitrator helpless. Arbitration proceedings are intended to give speedy remedy without burdening the court with cases in which the parties opt for arbitration. If such types of applications, which are not contemplated by the Arbitration Act either under Sec.31 or under Sec.41 or under the Second Schedule thereof, are allowed to be filed, the purpose of the Arbitration Act itself will be frustrated.” Therefore, it is clear that the court has no such power, but the arbitrator himself has such a power. 6.
If such types of applications, which are not contemplated by the Arbitration Act either under Sec.31 or under Sec.41 or under the Second Schedule thereof, are allowed to be filed, the purpose of the Arbitration Act itself will be frustrated.” Therefore, it is clear that the court has no such power, but the arbitrator himself has such a power. 6. In the second decision, viz., M/s.Bombay Ammonia Pvt Ltd. v. Union of India, A.l.R. 1987 Del. 148, it was found that the arbitrator therein made no efforts to procure vital documents and the award was made by him without considering the vital documents and in such circumstances, the Delhi High Court held that the award was liable to be set aside. This decision also shows that the arbitrator has power to procure necessary document for deciding the dispute before him. 7. In the third decision cited by the learned counsel for the respondent, viz., K.P.Poulose v. State of Kerala, A.l.R. 1975 S.C. 1259, the award of the arbitrator therein was set aside by the Supreme Court, since the arbitrator ignored certain very material documents relevant to the controversy between the parties. In that context, the Supreme Court observed as follows: “In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents....” This observation also shows that the arbitrator has the abovesaid power to send for the relevant documens. No other point was argued before in. 8. Therefore, the decisions taken by the Court below cannot be said to be in any way erroneous. The appeals are dismissed with costs.