Aids Healthcare Foundation ??? ... vs National Aids Control ...
2009 Latest Caselaw 3439 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+             OMP 496/2009 & OMP No.497/2009

%                             Date of decision:28th August, 2009


AIDS HEALTHCARE FOUNDATION
- INDIA CARES                                            ....Petitioner
                          Through: Mr. Avijit Bhattacharjee, Advocate

                                    Versus



NATIONAL AIDS CONTROL ORGANIZATION
& ANR.                             .... Respondents
                          Through: Mr. A.S. Chandiok, ASG with Mr. Sanjay
                          Katyal, Mr. Ritesh and Mr. Tanveer, Advocates


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may        Yes
      be allowed to see the judgment?

2.    To be referred to the reporter or not?             Yes

3.    Whether the judgment should be reported                  Yes
      in the Digest?


RAJIV SAHAI ENDLAW,J.

+ IA No.10930/2009 in OMP No.497/2009 (U/s.151 CPC for exemption) * Exemption allowed subject to just exceptions.

OMP No.496/2009 & OMP No.497/2009

1. The parties are in arbitration before an arbitral tribunal. The

petitioner in both the petitions approached the tribunal for an order

directing the respondent to disclose and file before the arbitral

tribunal. Documents in support of the pleas taken by the respondent

before the arbitral tribunal. The arbitral tribunal vide order dated

7th July, 2009 came to a conclusion that no case was made out for the

petitioner to claim such disclosure and no direction as sought by the

petitioner ought to be issued against the respondent. The tribunal in

this regard also noted the contention of the respondent that besides

the documents already filed by the respondent, the respondent was

not in custody of any other documents. The tribunal held that any

endeavor to call for any material document/files (unspecified) from

the custody of the respondent would be a leap in the dark and an

exercise in futility; and then, if ultimately it transpires that some

relevant and material has been unfairly held up by the respondent,

claimant can legitimately pray for an adverse inference against the

formal. The tribunal in this regard also noticed the plea of the

respondent about the confidentiality of some of the records sought to

be summoned.

2. The tribunal however while turning down the request of the

petitioner, considered the alternative request of the petitioner before

the tribunal to permit the petitioner to approach the court under

Section 27 of the Act and to seek redressal. Thus the application of

the petitioner was rejected with liberty to the petitioner to approach

the court under Section 27 of the Act.

3 The petitioner has now filed OMP No.497/2009 seeking a

direction to the respondent to produce the same records/documents

before the arbitral tribunal, the request for direction with respect

whereto made before the arbitral tribunal was rejected vide order

aforesaid.

4 OMP No.496/2009 has been preferred under Section 9 for stay

of recording respondent's evidence before the arbitral tribunal

pending the disposal of OMP No.497/2009.

5. Section 27 of the Act permits a party to the arbitration to "with

the approval of the arbitral tribunal" apply to the court for assistance

in taking evidence.

6. In the present case there is no approval of the arbitral tribunal

for seeking assistance of this court for taking the evidence sought.

Though the tribunal has considered the alternative prayer of the

petitioner for approaching the court under Section 27 of the Act but

as pointed out by the ASG, that is also not an approval but is

qualified with the words " if so advised". Once the tribunal itself has

vide order aforesaid held that the said documents cannot be directed

to be produced, the tribunal has not approved the prayer of the

petitioner for summoning of the said documents and in the face of

the same this application under Section 27 is not maintainable. The

ASG has also drawn attention to Section 27 (3) and rightly urged

that the court assistance is only in executing the request for

recording of the evidence and the court has no power to on its own

to direct evidence to be produced, without the approval of the

tribunal, even if a request in that regard is made by a party.

7. The counsel for the petitioner has urged that in fact the

application ought to have been made before the court only and did

not lie before the arbitral tribunal. However in view of the what has

been observed above that argument is not tenable in law.

8. As far as the petition under Section 9 is concerned, since the

petition under Section 27 is found to be not maintainable, the

question of any interim measures awaiting the decision in the other

petition does not arise. Even otherwise it may be noticed that the

Supreme Court in Bhatia International Vs. Bulk Trading S.A.

AIR 2002 SC 1432 has held that the power under Section 9 of the Act

cannot be exercised for stay of the arbitration proceedings.

9. No merits are found in either of the petitions. The same are

dismissed. The arbitral tribunal while assessing the costs of the

arbitration proceedings shall also take note of the costs of the

present petition incurred by the respondent.

RAJIV SAHAI ENDLAW (JUDGE) August 28th, 2009 J