Whether court can enforce attendance of foreign witnesses in arbitration proceeding?

Arbitration - Summons to Foreign Witness - Section 27 of Arbitration and Conciliation Act, 1996 - Petitioner filed present petition under Section 27 of Act for issuance of summons to witness who are residents of foreign countries - Held, Arbitrators no doubt ruled that witnesses, including foreign witnesses are relevant to petitioner's case - However, court is bereft of any power to issue process to such foreign witnesses - So far issuance of commission to examine witnesses is concerned, aside from any logistical difficulties which may arise, since, all these witnesses are living in different locales, it is also unclear as to how attendance of such witnesses to answer summons of Commissioner or depose before him, can be obtained - Petitioner has not indicated any Court, or authority, who is empowered to answer to requests made till now - Most importantly, grant of petitioner's request would mean that respondent is completely shut out from opportunity of cross-examining such witnesses, and would be confronted with evidence on behalf of petitioner, of two classes-one set, who are available for cross-examination, and another who are not - That is hardly conducive to equal justice and fair play - Petition has to fail so far as it concerns, request for issuing summons to foreign witnesses is concerned.

IN THE HIGH COURT OF DELHI

O.M.P. No. 364 of 2008

Decided On: 23.07.2008

Reliance Polycrete Ltd. Vs. National Agricultural Co-operative Marketing Federation of India (Nafed)

Hon'ble Judges/Coram:

S. Ravindra Bhat, J.

Print Page

Whether party can approach court for securing presence of witnesses if his request is not approved by arbitrator?

Section 27 of the Act permits the court assistance in taking evidence if the arbitral tribunal or a party with the approval of the arbitral tribunal applies to the court for assistance in taking evidence. In the present case, the petitioner has not obtained the approval of the arbitral tribunal before moving the court seeking its assistance for taking evidence by invocation of Section 27 of the Act. Therefore, the application as filed is not sustainable.

4. The Act is absolute silent about the procedure or the remedy which may be available to a party if the arbitral tribunal refuses to examine the witnesses of a party holding that they are not relevant for the proper disposal of the dispute inter se the parties pending adjudication before him. Therefore, the only remedy available to the petitioner is to file objections under Section 34 of the Act, if on pronouncement of an award, he is of the view that the arbitrator has not adjudicated upon the disputes under reference in accordance with law and procedure.

Delhi High Court

Sh. Satinder Narayan Singh vs Indian Labour Cooperative ... on 17 December, 2007

Equivalent citations: 2008 (1) ARBLR 355 Delhi

Bench: A Suresh

Print Page

Whether party to arbitration proceeding can take assistance of court for securing presence of witnesses?

Section 27 envisages an application to be made to the court for seeking assistance to take evidence. Such an application can be made either by the arbitral tribunal or a party with the approval of the arbitral tribunal. Thus, in case of an application by a party, the legislature itself envisaged an approval of the arbitral tribunal. This in turn puts an obligation on the arbitral tribunal to apply its mind and not to mechanically direct an application to be filed before the court.

It is in view of the aforesaid observations that the learned Counsel contends that it is not mandatory for the arbitrator to give reasons while granting its approval for a party to move an application to the court under Section 27 of the said Act.

13. I am in agreement with the submission of the learned senior counsel for the petitioner to the extent that detailed reasons may not be specified by the tribunal but at least application of mind must be available from the order passed by the tribunal.

IN THE HIGH COURT OF DELHI

CM (M) No. 733 of 2004 and CM No. 7154 of 2003

Decided On: 11.09.2006

Hindustan Petroleum Corporation Vs. Ashok Kumar Garg

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, J.

Citation:(2007) 1 Arb LR 368

Print Page

What is Duty of court and public prosecutor if witness fails to remain present before court?

 Once the learned Magistrate issued summons to Shri K.R.Rathod and in obedience to the said summons if he is not appearing before the court, it was the duty of the learned Magistrate to procure his presence. The courts, in the present case the Magistrate, cannot remain mute spectator. In an appropriate event, it is the duty of the learned Magistrate to intervene and step-in to administer the criminal justice effectively. Therefore, it was incumbent on the part of the learned Magistrate to see that the person against whom the summons is issued is before the court, and for that, it was for the Magistrate to take suitable steps. The learned Magistrate cannot absolve his duty on the ground that no application is moved by the prosecution for issuing bailable or non-bailable warrant. The learned prosecutor incharge of the file is also officer of the court and is part and parcel in the process of administration of criminal justice. However, ultimately, it is the learned Magistrate, who has to control the situation and deliver the justice to the victim. Therefore, in my view, the learned Magistrate has committed a serious wrong in not issuing appropriate directions to secure the presence of Shri K.R.Rathod, Police Sub-Inspector and ultimately extended benefit in favour of the accused persons.

Bombay High Court

Shankar Shivappa Patale vs Ishaq Bashamiya Bhajiwale & Ors on 18 February, 2015

Bench: V.M. Deshpande

Citation; 2015 ALLMR(cri)2204

Print Page