Vinod Jayrambhai Patel v. Gujarat Industrial Co-op. Bank Ltd. , Surat
2019-01-21
BELA M.TRIVEDI
body2019
DigiLaw.ai
JUDGMENT : BELA M. TRIVEDI, J. Rule. Mr. J.B. Dastoor, learned Advocate waives service of Rule on behalf of respondent No.1. 2. The petitioner, by way of present petition, has challenged the order dated 19-8-2017 passed by the respondent No.3-Arbitrator, below Exh. 57 in Arbitration Petition No. 13 of 2010, and has further sought direction to permit the petitioner to cross-examine the witness of the respondent No.1-Bank. 3. As per the case of the petitioner, the respondent No. 1-Bank was initially registered under the Gujarat Co-operative Societies Act, 1961, and subsequently, under the Multi-state Co-operative Societies Act, 2002. The respondent No. 1 had filed an Arbitration Petition being No. 13 of 2010 against the borrower-the respondent No.2 for the recovery of the outstanding amount to the tune of Rs. 3.55 crores before the respondent No.3 appointed under Sec. 84(4) of the Multi-state Co-operative Societies Act, 2002. The petitioner being the Guarantor was also joined as the defendant No.2 in the said proceedings. The respondent No.1 on 1-7-2017 had submitted an affidavit in lieu of the examination-in-chief for its witness Sonal Priteshbhai Desai as per the provisions contained in Order XVIII, Rule 4 of C.P.C. The petitioner, therefore, submitted an application at Exh. 57 requesting the respondent No.3-Arbitrator to direct the witness to remain present for cross-examination. The respondent No.3 in view of the said application, passed the order dated 19-8-2017 directing that the petitioner may give in writing an interrogatory/questionnaire to the witness of the respondent No. 1 and the witness may submit the reply thereof in writing on the next date of hearing. 4. Learned Advocate Mr. Baiju Joshi for the petitioner submits that a very novel and strange procedure has been sought to be adopted by the respondent No.3-Arbitrator, who by the impugned order has not permitted the petitioner to cross-examine the witness and on the contrary directed to submit the questionnaire in the form of interrogation. According to him, such a procedure would be detrimental to the right of the petitioner to cross-examine the witness, and cause great miscarriage of justice. He has relied upon the decision of this Court in the case of N.G. Projects Ltd. v. Backbone Projects Ltd., reported in 2016 (4) GLR 3181 to buttress his submissions. 5. However, learned Advocate Mr. J.B. Dastoor relying upon the decision of the Constitution Bench in the case of M/s. S.B.P. & Co.
He has relied upon the decision of this Court in the case of N.G. Projects Ltd. v. Backbone Projects Ltd., reported in 2016 (4) GLR 3181 to buttress his submissions. 5. However, learned Advocate Mr. J.B. Dastoor relying upon the decision of the Constitution Bench in the case of M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd., reported in AIR 2006 SC 450 , submitted that once the matter reaches the Arbitral Tribunal, the High Court should not interfere with the orders passed by the said Tribunal during the course of arbitration proceedings. 6. In the instant case, it appears that the respondent No. 1-Bank which is registered under the Multi-state Co-operative Societies Act, has filed the proceedings before the respondent No.3 appointed as the Arbitrator under Sec. 84(4) of the said Act, and therefore, save as otherwise provided under the said Act, the provisions of Arbitration and Conciliation Act, 1996 would apply to the said proceedings in view of Sec. 84(5) thereof. So far as the facts of the present case are concerned, as stated earlier, the respondent No. 3 after permitting the respondent-Bank to file an affidavit in lieu of examination-in-chief for its witness, did not permit the petitioner to cross-examine the said witness but directed the petitioner to furnish the interrogatories/questionnaire. Such a course adopted by the respondent No. 3 is not only arbitrary and illegal, but would cause great injustice to the petitioner. 7. There cannot be any disagreement to the proposition of law laid down by the Supreme Court in the case of M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd. (supra) relied upon by the learned Advocate Mr. Dastoor for the respondent to the effect that once the matter reaches the Arbitral Tribunal, the High Court should not interfere with the orders passed by the Tribunal during the course of arbitration proceedings. However, it is equally settled legal position propounded by the Constitution Bench in the case of L. Chandra Kumar v. Union of India, reported in 1997 (3) SCC 261 , to the effect that jurisdiction conferred on the High Court under Arts. 226 and 227 of the Constitution is a part of basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation.
226 and 227 of the Constitution is a part of basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. Of course, a writ of certiorari under Art. 226 or the exercise of supervisory jurisdiction under Art. 227 is not available to correct mere errors of fact or of law, and is available only when the two requirements are satisfied, namely when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and when a grave injustice or gross failure of justice has occasioned, as held by the Supreme Court in case of Surya Dev Rai v. Ram Chander Rai, reported in 2003 (6) SCC 675 . 8. Applying the aforestated legal position to the facts of the present case, the Court is of the opinion that by not permitting the petitioner to cross-examine the witness of the respondent-Bank and by directing the petitioner to furnish the questionnaire in the form of interrogatory, the respondent No. 3 has shown utter disregard to the provisions of C.P.C., and caused grave injustice to the petitioner. 9. In that view of the matter, the impugned order deserves to be quashed and set aside, and is hereby set aside. The petitioner shall be at liberty to cross-examine the witness of the respondent No. 1-Bank, however, it is directed that the entire proceedings may be completed as expeditiously as possible. 10. The petition stands allowed accordingly. Rule is made absolute. Petition allowed.