Madras High Court
M/S.Mahaseman Trust vs M/S.Kiara Microcredit Pvt. Ltd on 23 September, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 22.02.2022
DELIVERED ON 28.02.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.R.P.(MD)No.1881 of 2021
and
C.M.P.(MD)No.10125 of 2021
M/s.Mahaseman Trust,
Rep. by its Trustee,
Mr.Prabhu Vairavan Pragasam. ...Applicant/Claimant/Petitioner
Vs.
M/s.Kiara Microcredit Pvt. Ltd. ...Respondent/Respondent/Plaintiff
PRAYER: Civil Revision Petition under Article 227 of the Constitution of
India, to call for the records of the sole arbitrator in I.A.No.1 of 2021 in
Arbitration Case No.9 of 2020 dated 23.09.2021, set aside the same.
For Petitioner :Mr.K.Subramanian,
Senior Advocate, for
Mr.K.Hariharan
For Respondent :Mr.G.Vairava Subramanian
ORDER
This Civil Revision Petition has been filed to set aside the order, dated
23.09.2021 in I.A.No.1 of 2021 in Arbitration Case No.9 of 2020.
https://www.mhc.tn.gov.in/judis
2.The parties are referred to as per the rank mentioned before the Court
below.
3.A memo has been filed on behalf of the Claimant before the Sole
Arbitrator in I.A.No.1 of 2021 in Arbitration Case No.9 of 2020, to close the
cross-examination of C.W.1 and continue the Arbitral proceedings further.
The said memo was rejected on 23.09.2021. Against the said rejection order,
the applicant is before this Court.
4.Heard on either side. Perused the material documents available on
records.
5.This Civil Revision Petition is filed on the ground that there is no
adequate efficacious alternative remedy available in law to canvass the
correctness of the impugned order passed by the sole arbitrator in Arbitration
Case No.9 of 2020, dated 23.09.2021 except to approach this Court under
Article 227 of Constitution of India. As per rulings of the Hon'ble Supreme
Court of India, this Civil Revision Petition filed under Article 227 of the
Constitution of India is maintainable.
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6.The Applicant/Claimant/Petitioner has filed this Civil Revision
Petition to set aside the order, dated 23.09.2021 in I.A.No.1 of 2021 in
Arbitration Case No.9 of 2020, passed by the sole Arbitrator.
7.As per agreement between the parties, dated 15.03.2018, in O.P.No.
331 of 2020, a sole arbitrator was appointed by this Court on 02.09.2020.
Both the parties are agreed to lead oral evidences.
8.C.W.1 was examined in chief and cross in part. At this stage, the
revision petitioner has filed a memo on 05.09.2021 to close the cross
examination of C.W.1.
9.The petitioner has stated in the memo that the learned Arbitrator has
a duty to protect the witness from being harassed or bullied during cross
examination. The learned Arbitrator may ensure that the witness is treated
fairly and courteously, in as much as a perusal of line of cross examination
would disclose that the learned counsel for the respondent is exceeding the
bounds of fairness.
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10.The petitioner has not raised any objection when C.W.1 was cross
examined by the respondent. If, C.W.1 has any objection he can raise at the
time of cross examination when there was any irrelevant question.
11.The ingredients of Section 19(4) of the Arbitration and
Conciliation Act, 1996, is extracted hereunder:
“19(4).Determination of rules of procedure:
The power of the arbitral tribunal under
sub-section (3) includes the power to determine
the adminissibility, relevance, materiality and
weight of any evidence. ”
Only the Arbitration has power to determine admissibility, relevancy
and weight of any evidence.
12.The ingredients of Section 18 of the Arbitration and Conciliation
Act, 1996, is extracted hereunder:
“18.Equal treatment of parties:
The parties shall be treated with equality
and each party shall be given a full opportunity to
present his case.”
Each party shall be given a full opportunity to present the case.
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13.The learned counsel appearing for the applicant relied upon the
Judgment reported in 2020 SCC Online Delhi 228, Sukhbir Sing Vs.
Hindustan Petroleum Corporation P. Ltd., and the relevant portions are
extracted hereunder:
....
“42.It appears that the Model Law was
thereafter revised to reflect the above comments. In
the Explanatory Note by the UNCITRAL Secretariat on
the 1985 Model Law on International Commercial
Arbitration, Article 24 is characterised as an
illustration of the general principle of euality and full
opportunity. Paragraph 32 of the Explanatory Note
states as follows:-
“a. Fundamental procedural rights of a party.
32.Article is embodies the principles
that the parties shall be treated with
equality and given a full opportunity of
presenting their case. A number of
provisions illustrate those principles.
For example, article 24(1) provides
that, unless the parties have agreed that
no oral hearings be held for the
presentation of evidence or for oral
argument, the arbitral tribunal shall
hold such hearings at an appropriate
stage of the proceedings, if so requested
by a party. It should be noted that
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article 24(1) deals only with the general
entitlement of a party to oral hearings
(as an alternative to proceedings
conducted on the basis of documents
and other materials) and not with the
procedural aspects, such as the length,
number of timing of hearings.
46.Having so held, a word of caution is
necessary. The right granted in Section 24 does not
require an Arbitral Tribunal to countenance unending
cross-examination or oral arguments. It is always open
to the arbitrator to determine the length and scope of
oral hearings, which would necessarily depend upon
the facts and circumstances of each case. If a party
seeks oral evidence, for example, the Tribunal may be
able, after hearing the parties, to determine the points
on which evidence is to be led. Similarly, arbitrators
can set appropriate time limits for oral arguments. The
arbitrators can require an application to be filed by
the concerned party, setting out the necessary material
to enable the Tribunal to determine these matters.
Further, the second proviso to Section 24(1) expressly
provides for hearings on a day-to-day basis without
unnecessary adjournments.”
14.As per power given to Arbitration under Section 19(4) only
Arbitration can decide the matter not parties to determine the length and
validity of cross examination.
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15.Further, this Court cannot interfere the powers of Arbitration under
Article 226 & 227 of Constitution of India, when there is no exceptional
rarity as per Judgment in C.A.Nos.1098-1099 of 2021 dated 01.05.2021 in
Navayuga Engineering Company Vs. Bangalore Metro Rail Corporation
Limited. The relevant portion is as follows:
“4.Despite this Court repeatedly referring to
Section 5 of the Arbitration Act in particular and the
Arbitration Act in general and despite this Court
having laid down in Deep Industries Ltd. Vs. ONGC &
Anr. (2020) 15 SCC 706 that the High Court under
Article 226 and 227 should be extremely circumspect
in interfering with orders passed under the Arbitration
Act, such interference being only in cases of
exceptional rarity or cases which are stated to be
patently lacking in inherent jurisdiction, we find that
High Courts are interfering with deposit orders that
have been made. This is not a case of exceptional
rarity or of any patent lack of inherent jurisdiction. ”
16.In the instant case, the revision petitioner has not shown any
exceptional circumstances to invoke the remedy under Article 227 of the
Constitution of India.
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17.The Arbitration has every right to interfere the cross examination
when irrelevant to the process. If any irrelevant question in cross examination
the petitioner has every right to object the question then and there.
18.The revision petitioner cannot seek direction to close the cross
examination of C.W.1. On perusal of proceedings in the order of arbitration
in I.A.No.1 of 2021, the revision petitioner seeks adjournments in several
time.
19.Therefore, the Arbitrator has rightly rejected the Memo.
20.Finally, this Civil Revision Petition is dismissed by confirming the
order, dated 23.09.2021 in I.A.No.1 of 2021 in Arbitration Case No.9 of
2020, passed by the Sole Arbitrator. No Costs. Consequently, connected
miscellaneous petition is closed.
Index :Yes/No 28.02.2022
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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To
The Arbitrator,
Arbitral Tribunal,
Madras High Court.
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S.ANANTHI, J.
ksa
Order made in
C.R.P.(MD)No.1881 of 2021
28.02.2022
https://www.mhc.tn.gov.in/judis
