A single judge bench of the Odisha High Court comprising of Justice Arindam Sinha while adjudicating an arbitration case reiterated that Section 34 application will not ordinarily require anything beyond the record that was before the arbitrator and that cross-examination of persons swearing in to the affidavits should not be allowed unless absolutely necessary.
Facts:
The petitioners submitted that there should be judicial review over order dated 8th July, 2022, made by the Court in hearing their challenge under Section 34 of the Arbitration and Conciliation Act, 1996. He submits, there was a nil award. Principal ground for rejecting the claim was that the invoices were not produced. He sought to produce them as additional evidence, by application made under Section 151 in Code of Civil Procedure. The application was rejected by impugned order.
Legal Question:
Whether, at all additional evidence can be adduced in the challenge to the award mounted under section 34?
Observations of the Court:
Placing reliance on M/S Emkay Global Financial Services Limited vs. Girdhar Sondhi (2018) 9 SCC 49, the court held that Section 34 application will not ordinarily require anything beyond the record that was before the arbitrator and that cross-examination of persons swearing in to the affidavits should not be allowed unless absolutely necessary.
Said Court went on to find that in the petition under section 151, no reasonable explanation had been cited by petitioner as to why the invoices had not been submitted during the arbitral proceeding and no convincing or cogent reason had been assigned by petitioner to show that the documents are relevant for just decision of the case. The bench inferred that the petitioner’s explanation regarding inability to produce the documents in the reference was not noticed by the Court previously.
In this case opposite party has contended that the arbitrator held the invoices to be of no relevance. On the other hand, the Court below by impugned order appears to have relied on the award to show that non-production of the invoices was one of the reasons for the final award and that petitioner ought to have had produced them. In view of aforesaid it cannot be said that in spite of opportunity given or direction made in the reference, petitioner chose not to produce the invoices. The clause in the purchase order following the passage relied upon in the ‘Letter of Intent’ says that quantity of defoamer and manner of its supply had to be taken into consideration, to ascertain which rate was to be paid by opposite party. Court refrained from making any further comment. The case thus appeared to be an exceptional case warranting interference by judicial review of the challenge proceeding.
Decision:
Impugned order was set aside and quashed. The writ petition was disposed of.
Case: M/S Bhadra Products vs M/S Indian Farmers Fertilizer Cooperative Limited
Citation: W.P.(C) No. 18536 of 2022
Coram: Justice Arindam Sinha
Pronounced on: 13.10.2022
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