Orissa High Court
Jindal India Thermal Power Ltd vs Quartz Infra And Engineering Pvt on 6 April, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.04 of 2021
(Through hybrid mode)
Jindal India Thermal Power Ltd. .... Appellant
Mr. S.P. Mishra, Senior Advocate
Mr. C. Mukhopadhay, Sr. Advocate
Mr. S. Mohanty, Advocate
Mr. P. Mehta, Advocate
Ms. D. Vyas, Advocate
-versus-
Quartz Infra and Engineering Pvt. .... Respondent
Ltd.
Mr. A.K. Panigrahi, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
06.04.2022
Order No.
7. 1. Mr. Mishra, learned senior advocate appears on behalf
of appellant and submits, impugned is judgment dated 9th April,
2021 made by the Court below in rejecting his client's
challenge to award dated 21st February, 2017. He submits, he
has several points, of which he wants to urge first, the point on
the Tribunal having rejected his client's application under
section 27, Arbitration and Conciliation Act, 1996 for
summoning further witnesses.
2. He refers to undated order of the Tribunal dealing with
the application of his client to submit, majority view was that
// 2 //
the application was delayed and evidence regarding the purpose
for summoning the persons (level books), were already on
record and relevance thereof was not in issue at that juncture.
3. He submits, , contrary view was taken by order dated
23rd September, 2015. The dissenting co-arbitrator said that the
application deserved to be allowed, the rejection tantamount to
foreclosing respondent's evidence, which may cause serious
prejudice to respondent defence and defeat the ends of justice.
4. He then points out from impugned judgment that in
paragraphs 9 and 9(a) the Court below had dealt with the
rejection of the application by the Tribunal. He submits, the
Court said that his client had not challenged the order of the
Tribunal before any higher forum and accepted the same. At
stage of application under section 34 such question had been
raised, which, in said Court's view, is not legally sustainable as
the Tribunal had passed the order, on consideration of facts and
circumstances regarding relevance of evidence of the witnesses
to be examined. He submits, his client's case was foreclosed
and there has been prejudice caused to it.
5. The point raised goes to the root of the matter. It is to
be decided before any other point appellant may have/urge.
// 3 //
Respondent will be heard on this point, on adjourned date.
Court has noticed and respondent is to answer on the scope of
section 27 providing permission to a party to apply with approval of
the arbitral Tribunal, to the Court for assistance in taking evidence.
Whether the requirement to obtain the approval is a mandate for
adjudication on discretion to be exercised is a question to be
answered. Since the provision gives permission to a party to apply to
the Court for assistance in taking evidence, the object may be that
requirement of approval of the arbitral Tribunal is a requirement
preventing the party from applying directly to the Court, a
requirement of procedure.
6. Respondent will also be heard on the Court below having
dealt with the point on reliance of reasoning in impugned award on
finding that time was not essence of the contract, the award having
come much later than when the application was rejected.
Furthermore, no appeal is provided from an order under section 27
in the Act. Respondent is also to address Court on whether,
therefore, there could be acceptance of the order by appellant.
7. List on 13th April, 2022.
(Arindam Sinha)
Judge
Sks
