Whether venue of arbitration will be changed if evidence is recorded somewhere else?

Be that as it may, a question that also arises for consideration of this Court is whether recording of evidence of any witness at the place or venue outside the agreed venue would amount to change of venue under any part of Section 20 of the Arbitration Act or not. It is not in dispute that on 14th June 2016, this Court passed order in Arbitration Petition (L) No. 7 of 2016 based on the consent minutes of order tendered by the parties. In paragraph 3 of the consent minutes of order, it was provided that the said agreements shall be governed by the laws of India. The seat and venue of the arbitration shall be Mumbai. The Courts at Mumbai shall have exclusive jurisdiction in relation to the arbitration. Based on Clause 3 of the consent minutes of the order dated 14th June 2016, it is strongly contended by the respondents that the recording of evidence in Singapore on Commission even if appointed by this Court would amount to change of venue of the arbitral proceedings which would be contrary to the venue agreed by both the parties in the consent minutes of order dated 14th June 2016.In my view, Mr. Kapadia, learned senior counsel for the petitioners is right in his submission that as and when such evidence would be tendered by the petitioners of their witness whose evidence is recorded on commission, if allowed by this Court, before the learned arbitrator in Mumbai, at that stage, the evidence would be tendered in Mumbai and may be considered by the learned arbitrator. 

In my view, there would be thus no change of agreed venue even if evidence of witness is recorded on commission not in Mumbai but in Singapore. A commission if appointed, for recording evidence of witness of the petitioners would be an agent of the Court for the purpose of recording of evidence in Singapore which process would not change the agreed venue. If the argument of the learned senior counsel for the respondents that recording of evidence on commission in Singapore would amount to change the venue without consent of the parties is accepted, the arbitral tribunal will not be able to meet at any place though considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. Acceptance of such argument would be in clear violation of Section 20 (3) of the Arbitration and Conciliation Act, 1996.

IN THE HIGH COURT OF BOMBAY

Arbitration Petition No. 332 of 2018

Decided On: 08.06.2018

Stemcor (S.E.A.) Pte Limited Vs. Mideast Integrated Steels Limited and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

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Basic concepts of CPC 4 -definitions

Commission

Commission refers to an authority which is appointed to exercise a power or direction issued by court,when for instance a witness is unable to attend court on account of his illness or other similar reasons, the court can order such a witness to be examined on commission.

Under S 75 of CPC, commission can be issued by court for several purposes, as for instance to examine witnesses, to make a local investigation, to adjust accounts, to make a partition and so on.

Letter of request/Rogatory letter

A letter of request or rogatory letter is a letter issued by a court of one country to a court in a foreign country requesting for some judicial assistance from Judiciary of that country. Such assistance may be in the form of request to serve a summons or to take evidence of specified person.

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Precaution to be taken by court while appointing second court commissioner

 The restriction of issuing commission one after

another has to be understood under the public policy

having speedy disposal, time management, cheaper

administration of justice and the like.     So the legal


position can be summarised in the following lines:

(i)   There is no provision for setting aside the deposition

recorded by the Commissioner or the report submitted

thereof under Rule 1 to 8 of Order XXIV CPC which are

dealing with issuance of commission for examination of

witnesses.

(ii) There is no provision anywhere in Rule 1 to 8 of

Order XXIV, prohibiting issuance of a second commission

when it is found to be necessary, especially when the

report is incomplete      or   the witness examined was

recalled, or a new witness list is submitted and allowed.

(iii) There is no provision for setting aside the report

submitted by the commissions issued for making local

investigation under Rule 9 to 10(3) of Order XXVI CPC.

On the other hand, Rule 10(2) enables the court to have

a second commission to conduct further enquiry.          The

question of setting aside the earlier one does not arise

and it is not at all necessary to set aside the earlier one

 under Rule 9 to 10(3) of Order XXVI CPC.


(iv) The legal position is very same in the matter of

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property wherein the provisions of Rule 10 of Order XXVI

CPC made applicable as if they apply in relation to a

commission appointed under Rule 9 of Order XXVI CPC.

(v) The very same legal position is also made applicable

in the matter of commission to examine accounts

governed by Rule 11 to        12(2) of Order XXVI CPC

wherein also the scope of a "further enquiry" provided.

(vi)    The question of setting aside or varying or

confirming the report of a commission would arise only in

the case of a commission appointed for the purpose of

effecting partition under Rule 13 to 14(3) of Order XXVI

CPC. It mandates that when the commission report is

confirmed or varied, the court is bound to pass a decree

in accordance with the same and when it is set aside, to

issue another commission for that purpose. So setting

aside of earlier commission report is a condition


precedent in the matter of commission appointed for the

purpose of making partition.

(vii)     The issuance of successive commission either

under Rules 1 to 8, or under Rules 10 to 13 of Order

XXVI, without having dissatisfaction either the report or

proceeding of the commissioner earlier appointed, is

deprecated.

(viii). The dissatisfaction if any entertained by the court

in the proceedings of commissioner or the report thereof

under rules 10 to 13 of Order XXVI CPC, is only an initial

assessment in nature, shall not be read as substitute for

set aside     the report or wiping off the same from the

record or evidence.

(ix) Going by the phraseology used in various rules viz.,

1 to 13 of Order XXVI even a second commission is

permissible      though it may result in conflicting report.

There is no scope for exercising the jurisdiction under

Section 151 CPC in respect to the matters covered by

rule 1 to 15 of Order XXVI CPC.



(xi) Rule 8 of Order XXVI CPC became redundant by the

incorporation of Rule 4A in Order XXVI CPC.

   

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

   PRESENT:

     MR.JUSTICE P.R.RAMACHANDRA MENON
                                  &
     MR. JUSTICE P.SOMARAJAN

     15TH DAY OF DECEMBER 2016

                      RSA.No. 733 of 2004 

            FRANCIS ASSISSI, Vs   SR.BREESIYA
     

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Whether court can appoint fresh commission for partition of suit property after completion of final decree proceeding?

 In the teeth of the aforesaid background wherein the final decree has been confirmed right upto the Apex Court and where the orders passed on the earlier applications invoking section 47 of the Code of Civil Procedure by the respondent No. 1 and said Mrs. Anita Khetan had become final, the question which begs an answer is whether the subsequent applications filed invoking section 47 of the Code of Civil Procedure by the respondent Nos. 1 and 2 were maintainable. The answer has to be an emphatic 'no'. The trial Court in entertaining the said applications has totally glossed over the earlier round of litigation between the parties, which insofar as final decree proceedings are concerned, ended with the special leave petition filed by the respondent No. 1 being dismissed and insofar as application invoking section 47 of the Code of Civil Procedure had finally culminated in view of no further challenges to the orders passed in the earlier applications filed by the respondent No. 1 and said Mrs. Anita Khetani. What the trial Court has done by the impugned order is to reopen the final decree proceedings by ordering a fresh Commission for partitioning of the property in question. The same, in my view, cannot be countenanced in the background of the facts as narrated above.

IN THE HIGH COURT OF BOMBAY

W. P. No. 987 of 2011

Decided On: 13.07.2011

 Premlata s/o. Ramlal Shahu and another
Vs.
Chandrakant s/o. Gayaprasad Shahu and another

Coram:
R.M. Savant, J.

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