Research › Search › Judgment

Delhi High Court · body

2023 DIGILAW 1268 (DEL)

Aditya Medicart v. Tata 1mg

2023-02-28

CHANDRA DHARI SINGH

body2023
ORDER Chandra Dhari Singh, J. (Oral)--The instant application under Section 27 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") has been filed on behalf of the Applicant seeking the following reliefs: "a) To call record, file and CD of case no. CS COMM NO. 492/2020 decided by Hon'ble court of Sh. Gurvinder Pal Singh DJ (Commercial Court)-02, Patiala House Court, New Delhi and present the same under court staff presence before the Sole arbitrator Sh. Charan Singh Verma, on 25.02.2023 in Arbitration petition 1130 of 2021. b) To produce and present, record, file and CD of case no. CS COMM NO. 492/2020 decided by Hon'ble court of Sh. Gurvinder Pal Singh DJ (Commercial Court)-02, Patiala House Court, New Delhi and present the same under court staff presence before the Sole arbitrator Sh. Charan Singh Verma, on 25.02.2023 in Arbitration petition 1130 of 2021. c) Pass such other order(s) and or direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. Learned counsel for the Applicant submitted that the Claimant in ARB. P. 1130/2021 has filed the present application under Section 27 of the Act seeking the Court's assistance in taking evidence by calling one CD filed by the Respondent No.1 in CS (COMM) 492/2020 before Gurvinder Pal Singh, DJ (Commercial Court)-02, Patiala House Court, New Delhi. 3. It is further submitted that on 13.01.2023 the Sole Arbitrator had directed the Claimant/Applicant to present the original CD. It is therefore submitted that the applicant requires the said file along with CD which was consigned to record room. In view of the aforesaid, it is prayed that this Court be pleased to allow the instant application. 4. Heard learned counsel for the Applicant and perused the record. 5. Section 27 of the Act reads as under: "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. 4. Heard learned counsel for the Applicant and perused the record. 5. Section 27 of the Act reads as under: "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 be 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 any document to be produced or property to be inspected. (3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal. (4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it. (5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court. (6) In this section the expression "Processes" includes summonses and commissions for the examination of witnesses and summonses to produce documents. 6. From a bare perusal of the provision, it is evident that the arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence. Section 27 of the Act thus provides that the Court's assistance in taking evidence may be sought if the arbitral tribunal, or a party with the approval of the arbitral tribunal, applies to the Court for assistance in taking evidence. Therefore, the condition precedent for seeking the assistance of the Court under the aforementioned provision is the approval of the arbitral tribunal. 7. Therefore, the condition precedent for seeking the assistance of the Court under the aforementioned provision is the approval of the arbitral tribunal. 7. In the present case, the Applicant has been unable to furnish the approval of the arbitral tribunal for moving the court seeking its assistance for taking evidence by invocation of the said provision. Upon being queried whether the approval of the arbitral tribunal has been obtained, the learned counsel for the Applicant answered in the negative. 8. In view of the aforesaid, the instant petition is in the teeth of law, unsustainable, and hence, the requests raised therein cannot be adjudicated upon. 9. Accordingly, the instant petition stands dismissed as being defective and for being filed in flagrant violation of the statutory provision. 10. Pending applications, if any, also stand disposed of. 11. The order be uploaded on the website forthwith.