Lalit Madhan vs The Building Committee, Council ...
1994 Latest Caselaw 438 Del

ORDER

1. This order will dispose of the objections filed by the respondents against the award of sole Arbitrator, Mr. N.N. Goswamy (a former Judge of this Court) dated 7-9-1993. The claim arose out of certain alleged nonpayment's to the contractor, claimant for the work of construction of institutional building under agreement dated 7-9-1989. During the course of the work certain disputes arose between the parties which were referred, to the sole arbitration of the said Arbitrator by the order dated 12-6-1991 passed in Suit No. 1821/91 on the petition under Section 20 of the Arbitration Act. As the work was not completed within the stipulated time, the Architect of the employer-respondents recommended extension of time for completion of the work up to 30th Sept. 1991. Such extension was recommended in the light of various facts which have been detailed in the award. The respondents instead of extending the time, terminated the contract by issue of 15 days notice vide letter dated 8-4-1991, the validity whereof was challenged by the contractor. The employer-respondent filed a counter-claim as against the claim of the contractor. The only objections, which were pressed before me concern disallowing the summoning of one Mr. M. N. Joglekar, Building Advisor to the Building Committee as a witness after allowing the respondent to examine him as a witness. Counsel for the respondents states that the said Mr. Joglekar was very important witness because it was at his instance that the payments to the contractor were recommended by the Building Committee to be withheld since Mr. Joglekar was of the view that the contractor had already been over-paid. It is agreed that it was a decision of the committee and that the committee did not consist of only Mr. Joglekar. Even the respondents Architect was member of that committee and there were other members also in the committee. The respondents had duly produced their Architect as their witness. It may be noted that their list of witnesses consisted of the 7 witnesses and Mr. Joglekar's name was not included therein. The names of the persons included in the list of witnesses are as under:--

 
 

1. Mr. Mannu Bhatnagar, Architect
 

2. Mr. V.K., Singhla, Site Engineer
 

3. Mr. N.K. Aggarwal
 

4. Mr. T.P. Subraman,    Secretary and Executive Director
 

5. Mr. Sohan Lal, Section Officer (Admn.)
 

6. Mr. V.K. Poddar, Chairman, Building Committee
 

7. M.r V.P. Gupta.
 

The respondents after examining the Architect Mr. Mannu Bhatnagar and Mr. M.N. Aggarwal, Senior Director (Administration and Legal) of the respondents closed their evidence on 9-1-1993 when counsel for the respondents recorded a statement as under:--
 "I have not to examine any more witness and I close my case."
 

At the time of arguments, the respondents
made an application for additional evidence seeking to examine Mr. Joglekar as a witness in addition to those already examined. The order passed by the Arbitrator on that date, i.e., 8-5-1993 is as under:--

"During the course of the arguments, an application has been filed by the respondents for additional evidence. Ordinarily, I would have refused this application, but considering the circumstances of the case, I feel that it will be in the interest of justice if Mr. M. N. Joglekar, stated to be the Building Advisor of the Building Committee, is permitted to be examined to clarify certain points. Since no other date is suitable to Mr. Singhla, let Mr. Joglekar appear for being examined on 15th May, 1993 at 11.30 a.m. The institute will ensure that Mr. Joglekar is available on that date as it will not be possible for me to adjourn the matter for this purpose. The request for Mr. S.K. Suneja to be examined is rather vague and, it is got clear from the application as to the purpose for which Shri S.K. Suneja has to be examined. Consequently, it is not necessary to examine him. It is a pity that the counsel for the institute is again not present today. The arguments in these circumstances cannot proceed. The institute should make sure that its counsel would appear on every date."

On 15-5-1993, the Arbitrator passed the following order:--

"The argument's are in progress. As agreed to by the parties, the arguments will continue from day to day from 29th May, 1993 at 11.00 a.m. The institute has filed an application for summoning Mr. M.N. Joglekar, Building Advisor as a witness. By my last order, I had permitted the institute to examine Mr. Joglekar, but the institute had to bring him on its own responsibility. That order will stand even for the next dale. In case, the institute wants to file any further documents, it can do so with an application.

The feels already paid to me by the parties has exhausted itself. The parties are, there fore, directed to pay further fee of Rs. 10,000/- each on the next date of appearance.

2. The arguments ultimately concluded on 17-8-1993. After the request for summoning Mr. M.N. Joglekar had been disallowed and the respondent was directed to produce him at its own responsibility. Mr. Gujaral submitted that the payments were withheld only at the instance of Mr. Joglekar, who was the Engineer Member of and Building Advisor to the Building Committee. It is submitted by counsel for petitioner that Mr. Joglekar's name was suggested as a witness only in the course of the arguments and by way of an afterthought. Inspite of that and inspite of the Arbitrator having recorded "Ordinarily I would have refused this application." It cannot be said that the Arbitrator was not a all convinced of Mr. Joglekar being a material and necessary witness. Otherwise he would have declined the request like he did in the case of Mr. S.K. Suneja, the other witness who was sought to be examined. Mr. Gujral pointed out that this witness had refuse to appear on his own on the request from the respondents. According to him, had he appeared, he could have clarified as to how the contactor had been overpaid and would have demolished the contractor's claim. In fact both the witnesses produced by the respondents were members of the Building Committee and were equally competent to depose. It is alleged by the petitioner that when the Architect did not oblige the respondents, they in the course of the arguments, moved the application for examining Mr. Joglekar.

3. Mr. Gujral has argued that having granted permission to examine Mr. Joglekar, Engineer and Building Advisor to the respondents, the arbitrator should not have declined the request to take out summons for Mr. Joglekar to appear before the Arbitrator. It was submitted that Mr. Joglekar alone could fully explain the stand point of the respondents. Mr. Gujral referred to Section 43 of the Indian Arbitration Act whereunder the Court is obliged to issue summons to persons whom the Arbitrator or the Umpire desires to examine as a witness. He has also relied upon the case of K.P. Poulose v. State of Kerala, reported as in support of his contention that having once granted permission to examine a witness, denial to take out summons for that witness amounted to violation of rules of natural justice and in fact it also amounted to denial of an opportunity to produce the witness.

4. In the tight of the above discussion and what was observed by the learned Arbitrator in his order of 8th May, 1993, the Arbitrator should not have declined the request of the respondents for obtaining summons from Court to the said witness. The Arbitrator could have imposed the added responsibility on the respondents to get the summons served on the said witness. But having allowed the witness to be examined, it was not proper for the Arbitrator to decline the request for obtaining summons from Court under Section 43 of the Indian Arbitration Act, particularly when the case of the respondents is that he is the only witness, who had examined the claim of the petitioner and had reported that the petitioner had already been overpaid and such recommendation of the witness was accepted in toto by the Building Committee.

5. As has already been observed above, it was not proper on the part of the Arbitrator to disallow the request for moving the Court for taking out summons to the witness who had already been allowed to be examined. For that reason, I am satisfied that it is a fit case for remand of the award of the Arbitrator with the direction that the Arbitrator should allow the respondents request to move the Court to summon Mr. M.N. Joglekar. The Arbitrator may in his discretion impose the condition that it will be respondents responsibility to get the summons served on the said witness. The Arbitrator may consider closing the case of the respondents if even in response to summons, the witness fails to appear. Since the testimony of Mr. Joglekar is alleged to have an effect on the entire findings of the arbitrator, it will be proper to remit the entire award for reconsideration of the Arbitrator in the light of Mr. Jolekar's testimony if he is produced. In the light of the above discussion, it is not necessary to deal with other submissions of the Petitioner.

6. The result of the above discussion is that the award of the Arbitrator is remitted to the Arbitrator with the direction to allow the request of the respondent to move the Court for summoning Mr. M. N. Joglekar. The learned Arbitrator may, if considered fit, impose the condition that the respondents shall get Mr. Joglekar served at its own responsibility. The learned Arbitrator should make and publish his award within two months from the date of receipt of a copy of this order. Suit as well as I.A. are disposed of in the above terms. There will be no order as to costs.

7. Order accordingly.