Orissa High Court

M/S. S.A. Plywood Industry vs M/S. Tirupati Enterprises on 24 June, 2024

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.38193 of 2023

M/s. S.A. Plywood Industry
(P) Ltd., Kolkata ...... Petitioner

-Versus-

M/s. Tirupati Enterprises,
Cuttack ..... Opposite Party

For Petitioner : Mr M. Kanungo,
Sr. Advocate, Assisted
by Mr. S.R. Mohanty, Adv.

For Opposite Party : Mr. S.K. Sarangi,
Sr. Advocate, Assisted
by S.K. Sarangi, Adv.

CORAM: JUSTICE SANJAY KUMAR MISHRA
-------------------------------------------------------------------------------------------
Date of Hearing: 12.04.2024 Date of Judgment: 24.06.2024
-------------------------------------------------------------------------------------------

S.K. Mishra, J. This Writ Petition has been preferred

challenging the Order No.32 dated 13.11.2023 passed by

the learned Arbitrator in Arbitration Proceeding No. 23 of

2022, vide which the application filed by the Petitioner for

appointment of handwriting expert stood rejected.
2. The brief background facts, which led to filing

of the present Writ Petition is that on 22.09.2017, a

consigning and forwarding agreement (CFA) was executed

between the Petitioner Company and the Opposite Party

agreeing therein that the Opposite Party should act as

the Petitioner Company's consigning, storing and

forwarding Agent in the territory of Odisha in respect of

the goods i.e. plywood manufactured by the Petitioner

Company. By virtue of para-41 of the CFA, which

contains the arbitration clause, Dr. Justice A.K Mishra

was appointed as the sole Arbitrator to resolve the

dispute between the parties in pursuance of order dated

08.04.2022 passed by Hon'ble the Chief Justice of this

Court under section 11(6) of the Arbitration and

Conciliation Act, 1996, shortly, 'the Act, 1996', in ARBP

No.1 of 2022.

3. The Opposite Party filed the Statement of Claim

along with the documents as detailed in order No.5 dated

14.07.2022. The Petitioner also filed his statement of

defence and Counter Claim as recorded vide Order No.8

W.P.(C) No.38193 of 2023 Page 2 of 28
dated 02.09.2022 in Arbitration Proceeding No.23 of

2022. A Rejoinder Affidavit was also filed by the Opposite

Party in the said Arbitration Proceeding. Thereafter,

issues have been framed vide Order No.12 dated

04.11.2022. On 09.01.2023, both the Petitioner and the

Opposite Party filed list of admission/denial of document

statements along with list of witnesses. As both the

parties were going to adduce oral evidence, it was agreed

that the documents would be exhibited in course of

examination of witnesses and it transpires from Order

No.16 dated 02.02.2023 that both the parties agreed to

file the affidavit evidence-in-chief of their witnesses after

completion of cross examination of the witnesses of which

affidavit evidence was filed. Accordingly, the Opposite

Party's witnesses (C.W-1 to C.W-6) filed their affidavit

evidence-in-chief and they were cross-examined and

discharged.

4. It is the case of the Petitioner that on

02.09.2023, during the cross-examination of Mr. Atul

Kumar Halan (C.W.7) before the learned Arbitral

W.P.(C) No.38193 of 2023 Page 3 of 28
Tribunal, when the minutes of the meeting dated

20.02.2019, in which the price list of plywoods of

different grade and thickness are reflected, shown to C.W.

No.7 and he was asked as to whether it was signed by

him, he denied the same stating that the signature does

not belong to him.

5. It is further case of the Petitioner that the

document containing the price of the goods prescribed by

the Company from time to time is a most vital and

relevant point for adjudication as one of the factors on

which the issue, which has been framed in the Arbitral

Proceeding, is that whether the Petitioner (Respondent in

the Arbitration Proceeding) is entitled to get

Rs.2,24,42,925.80 from the Opposite Party (Claimant in

Arbitration Proceeding) towards the account calculation

of CFA. Clause 16 (ii) of CFA contemplates that CFA shall

be responsible for raising Invoices and Bills in the format

and at prices and in the manner prescribed from time to

time by the Company.

W.P.(C) No.38193 of 2023 Page 4 of 28
6. In the circumstances, the admissibility of the

minutes of the meeting dated 20.02.2019 (the price list of

plywood of different grade and thickness) in evidence

depends upon the proof of handwriting and signature of

Atul Kumar Halan (C.W.7) in the said document.

Therefore, in order to meet the ends of justice and to

bring out the truth, the Petitioner filed an application

before the learned Arbitrator to appoint a handwriting

expert directing to enquire into the question of the

authenticity and genuineness of the signature and

handwriting of Atul Kumar Halan (C.W. No.7) made in the

minutes of the meeting dated 20.02.2019. But the

learned Arbitrator rejected the said application vide Order

No.32 dated 13.11.2023 in Arbitration Proceeding No.23

of 2022 thereby failed to exercise its power under section

26 of the Act, 1996. Being aggrieved by the same, the

Petitioner has preferred the present Writ Petition.

7. The grounds on which the Petitioner challenges

the rejection order passed by the learned Arbitrator are

that, the impugned order of the learned Arbitrator

W.P.(C) No.38193 of 2023 Page 5 of 28
rejecting the application for appointment of handwriting

expert has caused a gross miscarriage of justice and the

Petitioner has no other remedy than to invoke the

supervisory jurisdiction of this Court to keep the

subordinate court within its jurisdiction. The power of

High Court under Article 227 is wider than the power

conferred under Article 226 in the sense that the power of

superintendence is not subject to those technicalities of

procedure or traditional fetters which are to be found in

certiorari jurisdiction. A further ground has also been

agitated that the learned Arbitrator has failed to exercise

its power under section 26 of the Act, 1996 and

consequently, such action is also in gross violation of

section 18 of the Act, 1996, which mandates equal and

full opportunity to be given to a party to contest/present

his case.

8. Mr. Kanungo, learned Senior Counsel, to

buttress his contentions, relied on the judgments of the

Supreme Court in S.B.P & Co. Vs. Patel Engineering

Ltd. & Others, reported in (2005) 8 SCC 618, Umaji

W.P.(C) No.38193 of 2023 Page 6 of 28
Keshao Meshram Vs. Smt. Radhikabai, reported in

1986 SCR (1) 731, Bhaven Construction Vs. Executive

Engineer Sardar Sarovar Narmada Ltd. & Another,

reported in 2022 (1) SCC 75.

9. Mr. Kanungo further submitted that even

though the apex Court in S.B.P & Co. (Supra), held that

the writ petition is not maintainable to challenge in

between orders passed by the learned Arbitrator under

section 16 of the Act, 1996 and where the statute

provides for remedy under sections 34 and 37 of the Act,

1996 the case in hand is definitely a sui-generis one as

the Petitioner will be rendered remediless and has no

other remedy than the present invocation before this

Court. Further, looking into the present trend of limited

scope of interference by the higher Courts under sections

34 & 37 of the Act, 1996 will grossly affect the Petitioner

as his irrevocable right for a just and fair trial before the

learned Arbitrator is affected for want of opportunity to

present its case to its full satisfaction and accord. Hence,

W.P.(C) No.38193 of 2023 Page 7 of 28
the decision in S.B.P & Co. (Supra) is distinguishable in

the facts of the present case.

10. In Umaji Keshao Meshram (Supra), the apex

Court held that the power may be exercised in cases

occasioning grave injustice or failure of justice such as:

a) When the court or tribunal has assumed a

jurisdiction which it does not have,

b) When the court has failed to exercise a

jurisdiction which it does have, such failure

occasioning a failure of justice, and

c) When the jurisdiction though available is

being exercised in a manner which

tantamount to overstepping the limits of

jurisdiction.

11. Relying on the said Judgment, Mr. Kanungo

submitted that in the present case, as the Court has

failed to exercise the power to appoint a handwriting

expert under section 26 of Arbitration and Conciliation

W.P.(C) No.38193 of 2023 Page 8 of 28
Act, 1996, such a failure has occasioned a failure of

justice.

12. In Bhaven Construction (Supra), the apex

Court held that it is prudent for a judge not to exercise

discretion to allow judicial interference beyond the

procedure established under the enactment. This power

needs to be exercised in exceptional rarity, wherein one

party is left remediless under the statute or a clear bad

faith shown by one of the parties. This high standard set

by the Court is in terms of the legislative intention to

make the arbitration fair and efficient. For better

appreciation, the para-18 of the said judgment is

extracted below:

"18. In any case, the hierarchy in our legal
framework, mandates that a legislative
enactment cannot curtail a constitutional right.
In Nivedita Sharma v. COAI [Nivedita
Sharma v. COAI, (2011) 14 SCC 337 : (2012) 4
SCC (Civ) 947] , this Court referred to several
judgments and held : (SCC p. 343, para 11)

"11. We have considered the respective
arguments/submissions. There cannot
be any dispute that the power of the
High Courts to issue directions, orders
or writs including writs in the nature of
habeas corpus, certiorari, mandamus,
quo warranto and prohibition under

W.P.(C) No.38193 of 2023 Page 9 of 28
Article 226 of the Constitution is a basic
feature of the Constitution and cannot
be curtailed by parliamentary legislation
-- L. Chandra Kumar v. Union of
India [L. Chandra Kumar v. Union of
India, (1997) 3 SCC 261 : 1997 SCC
(L&S) 577] . However, it is one thing to
say that in exercise of the power vested
in it under Article 226 of the
Constitution, the High Court can
entertain a writ petition against any
order passed by or action taken by the
State and/or its agency/instrumentality
or any public authority or order passed
by a quasi-judicial body/authority, and
it is an altogether different thing to say
that each and every petition filed under
Article 226 of the Constitution must be
entertained by the High Court as a
matter of course ignoring the fact that
the aggrieved person has an effective
alternative remedy. Rather, it is settled
law that when a statutory forum is
created by law for redressal of
grievances, a writ petition should not be
entertained ignoring the statutory
dispensation."
(emphasis supplied)

It is therefore, prudent for a Judge to not
exercise discretion to allow judicial
interference beyond the procedure
established under the enactment. This
power needs to be exercised in exceptional
rarity, wherein one party is left remediless
under the statute or a clear "bad faith"
shown by one of the parties. This high
standard set by this Court is in terms of the
legislative intention to make the arbitration
fair and efficient."
(Emphasis supplied)

W.P.(C) No.38193 of 2023 Page 10 of 28
13. Relying on the said Judgment, Mr. Kanungo

further argued, though it is evident that intervention

under Article 226/227 by the constitutional Courts in

Arbitration Proceedings cannot be invoked in a routine

manner, it can only be invoked in exceptional

circumstances where the party is remediless and bad

faith shown by one of the parties. Hence, the case of the

Petitioner clearly falls under the exceptional

circumstances and the same deserves interference of this

Court in the interest of fair administration of Justice and

also under the Doctrine of Complete Justice.

14. It is pertinent to mention here that though the

Writ Petition was presented on 20th November, 2023 and

was listed on 23rd November, 2023 under the heading

"Fresh Admission", the Opposite Party appeared suo

motu through its counsel to oppose the prayer made in

the Writ Petition so also application for interlocutory

order, vide which a prayer has been made to stay the

further proceeding in Arbitration Proceeding No.23 of

2022 till final disposal of the Writ Petition. Instead of

W.P.(C) No.38193 of 2023 Page 11 of 28
filing the Counter Affidavit, learned Senior Counsel for

the Opposite Party opposed the maintainability of the

Writ Petition and also file a Written Notes of Submission

and citations to substantiate his submission.

15. Mr. Sarangi, learned Senior Counsel,

supporting the impugned order, submitted that the Writ

Petition is not maintainable. He further submitted that

the original of the alleged document was not produced

before the learned Tribunal and the application was also

filed after cross-examining the witness on five deferent

dates i.e. on 15.07.2023, 05.08.2023, 14.08.2023,

02.09.2023 and 04.11.2023, during which the C.W.7 was

asked 208 questions. Out of which, the Petitioner relied

on question Nos.169, 170 & 174 and the relevant

question was asked on 02.09.2023. The Respondent had

also categorically denied in its statement of defence and

stated that the document has been fabricated/

manipulated.

16. A stand has been taken by the Opposite Party

that there is a provision of Appeal under section 37 of the

W.P.(C) No.38193 of 2023 Page 12 of 28
Act, 1996 and similarly, an application if not considered

under section 16 of the Act, 1996 that is to be challenged

only after passing of the award under section 34 of the

Act. Further, section 5 also makes it clear that there will

be least interference of the Courts in an arbitration

proceeding. Since the Arbitrator is appointed by the

parties, the Court should not interfere. The learned

Arbitrator, while not entertaining the application, has

rightly observed that the scope of reference under section

28 of the Act shall be enlarged if such application is

entertained, which is not the subject matter of reference.

It is the stand of the Opposite Party that, since the

Opposite Party (Claimant in the Arbitral Proceeding) has

denied the existence of the document from the very

threshold, the filing of the petition at a latter stage is not

entertainable, more so in an arbitration proceeding,

which is time bound.

17. Mr. Sarangi, learned Senior Counsel further

argued that, Article 5 of the Model Law emphasizes on

arbitral Tribunal to being at the first instance to

W.P.(C) No.38193 of 2023 Page 13 of 28
determine all issues relating to matters of law or

construction, as well as issue of jurisdiction and scope of

authority which exclusively determines the manner and

form of judicial intervention in the arbitration process.

Section 5 of the Act, 1996 is based on Article 5 of the

Modern Law. However, section 5 also incorporates a non-

obstante clause setting out the scope of judicial

intervention. In comparison between the two provisions,

Section 5 begins with an non-obstante clause unlike

Article 5 and it also limits the scope of judicial

intervention to the extent so provided in part-1. Section

5 has been enacted in the Act, 1996 to minimize the

supervisory role of Courts in the arbitral process to bare

minimum and only to the extent so provided under the

part 1 of the Act, 1996. Thus, every provision of the Act,

1996 ought to be construed in view of section 5 to give

true effect to the legislative intention of minimal judicial

intervention.

18. To substantiate his submissions, Mr. Sarangi,

learned Senior Counsel for the Opposite Party, relied on

W.P.(C) No.38193 of 2023 Page 14 of 28
the judgments of the Supreme Court in Manorama Naik

vs. State of Orissa, reported in 2022 live law SC 297,

S.B.P & Co. Vs. M/s. Patel Engineering Ltd. &

another, reported in AIR 2006 SC 450, N.N Global

Mercantile Pvt. Ltd, Vs. Indo Unique Flame Ltd.,

reported in (2023) 7 SCC 1 and Chandavarkar Sita

Ratna Rao Vs. Ashalata S. Guram, reported in (1986) 4

SCC 447.

19. In Manorama Naik (Supra) it was held that,

there are several ways of proving the signature and

documents under sections 45, 47 & 73 of the Indian

Evidence Act. Besides, the learned Arbitrator has found

that the mode of proof, as prescribed in Indian Evidence

Act, will not be strictly followed in the matter of

arbitration and provision of CPC are also not applicable.

The order passed in Manorama Naik (Supra) is extracted

below for ready reference:

"The impugned order dated 27.06.2016
has quashed the order taking cognizance passed
by the Sub-Divisional Judicial Magistrate, Puri in
G.R. Case No.854/2010 under Sections 467 and
471 of the Indian Penal Code, on the ground that

W.P.(C) No.38193 of 2023 Page 15 of 28
the opinion of the handwriting expert on the
disputed signatures was non-conclusive.
It is pointed out that the opinion of
the handwriting expert was filed for the
first time before the High Court and was not
available with the Trial Court at the time
when cognizance was taken. That apart,
the signatures and handwriting of the
person can also be proved under Sections
45, 47 and 73 of the Indian Evidence Act,
1872. Therefore, opinion of the handwriting
expert is not the only way or mode of
providing the signature and handwriting of
a person.
In view of the aforesaid position, the
impugned order is set aside and Crl. M.C.
No.37/2013 would be treated as dismissed.
However, we make it clear that we have not
commented on the merits of the matter. It will be
open to the accused to raise all questions and
contentions before the Trial Court in accordance
with law."
(Emphasis Supplied)

20. In S.B.P & Co. (Supra) it was held that, once

the arbitration has commenced in the Arbitral Tribunal,

parties have to wait until the award is pronounced. A

right to appeal is also available to them under section 37

of the Act, 1996 at an earlier stage. Further, it was held

that once the matter reaches the Arbitral Tribunal or the

sole Arbitrator, the High Court would not interfere with

the orders passed by the Arbitrator or Arbitral Tribunal

and the parties could approach the Court only in terms of

W.P.(C) No.38193 of 2023 Page 16 of 28
section 37 or section 34 of the Act. Paragraph Nos.45 &

46 of the said judgment are extracted below:

"45. It is seen that some High Courts have
proceeded on the basis that any order
passed by an Arbitral Tribunal during
arbitration, would be capable of being
challenged under Article 226 or 227 of the
Constitution. We see no warrant for such an
approach. Section 37 makes certain orders of
the Arbitral Tribunal appealable. Under Section
34, the aggrieved party has an avenue for
ventilating its grievances against the award
including any in-between orders that might
have been passed by the Arbitral Tribunal
acting under Section 16 of the Act. The party
aggrieved by any order of the Arbitral Tribunal,
unless has a right of appeal under Section 37 of
the Act, has to wait until the award is passed by
the Tribunal. This appears to be the scheme of
the Act. The Arbitral Tribunal is, after all, a
creature of a contract between the parties, the
arbitration agreement, even though, if the
occasion arises, the Chief Justice may constitute
it based on the contract between the parties. But
that would not alter the status of the Arbitral
Tribunal. It will still be a forum chosen by the
parties by agreement. We, therefore,
disapprove of the stand adopted by some of
the High Courts that any order passed by
the Arbitral Tribunal is capable of being
corrected by the High Court under Article
226 or 227 of the Constitution. Such an
intervention by the High Courts is not
permissible.
46. The object of minimising judicial intervention
while the matter is in the process of being
arbitrated upon, will certainly be defeated if the

W.P.(C) No.38193 of 2023 Page 17 of 28
High Court could be approached under Article
227 or under Article 226 of the Constitution
against every order made by the Arbitral
Tribunal. Therefore, it is necessary to
indicate that once the arbitration has
commenced in the Arbitral Tribunal, parties
have to wait until the award is pronounced
unless, of course, a right of appeal is
available to them under Section 37 of the
Act even at an earlier stage."

(Emphasis supplied)

21. In N.N Global Mercantile Pvt. Ltd. (Supra)

the seven judge constitution bench of the apex Court vide

paragraph No.76, reiterated the principle of minimum

judicial interference. The said paragraph is extracted

below for ready reference.

"ii. Principle of minimum judicial
interference

76. The principle of judicial non-interference in
arbitral proceedings is fundamental to both
domestic as well as international commercial
arbitration. The principle entails that the arbitral
proceedings are carried out pursuant to the
agreement of the parties or under the direction of
the tribunal without unnecessary interference by
the national courts.61 This principle serves to
proscribe judicial interference in arbitral
proceedings, which would undermine the
objective of the parties in agreeing to arbitrate
their disputes, their desire for less formal and
more flexible procedures, and their desire for
neutral and expert arbitral procedures.62 The
principle of judicial non-interference in arbitral
proceedings respects the autonomy of the parties

W.P.(C) No.38193 of 2023 Page 18 of 28
to determine the arbitral procedures. This
principle has also been incorporated in
international instruments, including the New
York Convention and the Model Law."

22. In Chandavarkar Sita Ratna Rao (Supra), the

apex Court, vide para-67, held that a non- obstante

clause is appended in a provision to give such provision

overriding effect over other provisions of the law. For

better appreciation, para-67 is extracted below.

"67. A clause beginning with the expression
"notwithstanding anything contained in this Act
or in some particular provision in the Act or in
some particular Act or in any law for the time
being in force, or in any contract" is more often
than not appended to a section in the beginning
with a view to give the enacting part of the
section in case of conflict an overriding effect
over the provision of the Act or the contract
mentioned in the non obstante clause. It is
equivalent to saying that in spite of the provision
of the Act or any other Act mentioned in the non
obstante clause or any contract or document
mentioned the enactment following it will have
its full operation or that the provisions embraced
in the non obstante clause would not be an
impediment for an operation of the enactment.
See in this connection the observations of this
Court in South India Corpn. (P) Ltd. v. Secretary,
Board of Revenue, Trivandrum [AIR 1964 SC
207, 215 : (1964) 4 SCR 280]."

23. In view of the submissions made by the learned

Senior Counsel for the parties so also the judgments cited

in support of their respective contentions, before dealing

W.P.(C) No.38193 of 2023 Page 19 of 28
with the issue involved in the present lis, it would be apt

to extract below the provision under sections 16, 18, 19,

26 & 37 of the Act, 1996 for ready reference.

"16. Competence of arbitral tribunal to rule
on its jurisdiction.--(1) The arbitral tribunal
may rule on its own jurisdiction, including
ruling on any objections with respect to the
existence or validity of the arbitration agreement,
and for that purpose,--
(a) an arbitration clause which forms part
of a contract shall be treated as an agreement
independent of the other terms of the contract;
and
(b) a decision by the arbitral tribunal that
the contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not
have jurisdiction shall be raised not later than
the submission of the statement of defence;
however, a party shall not be precluded from
raising such a plea merely because that he has
appointed, or participated in the appointment of,
an arbitrator.
(3) A plea that the arbitral tribunal is
exceeding the scope of its authority shall be
raised as soon as the matter alleged to be
beyond the scope of its authority is raised during
the arbitral proceedings.
(4) The arbitral tribunal may, in either of the
cases referred to in sub-section (2) or sub-section
(3), admit a later plea if it considers the delay
justified.
(5) The arbitral tribunal shall decide on a plea
referred to in sub-section (2) or sub-section (3)
and, where the arbitral tribunal takes a decision
rejecting the plea, continue with the arbitral
proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral
award may make an application for setting
aside such an arbitral award in accordance
with section 34.

W.P.(C) No.38193 of 2023 Page 20 of 28
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.

19. Determination of rules of procedure.--(1)
The arbitral tribunal shall not be bound by
the Code of Civil Procedure, 1908 (5 of 1908) or
the Indian Evidence Act, 1872 (1 of 1872).
(2) Subject to this Part, the parties are
free to agree on the procedure to be followed by
the arbitral tribunal in conducting its
proceedings.
(3) Failing any agreement referred to in
sub-section (2), the arbitral tribunal may, subject
to this Part, conduct the proceedings in the
manner it considers appropriate.
(4) The power of the arbitral tribunal
under sub-section (3) includes the power to
determine the admissibility, relevance,
materiality and weight of any evidence.

26. Expert appointed by arbitral tribunal.--
(1) Unless otherwise agreed by the parties, the
arbitral tribunal may--
(a) appoint one or more experts to report
to it on specific issues to be determined by the
arbitral tribunal, and
(b) require a party to give the expert any
relevant information or to produce, or to provide
access to, any relevant documents, goods or
other property for his inspection.
(2) Unless otherwise agreed by the parties, if a
party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after
delivery of his written or oral report, participate
in an oral hearing where the parties have the
opportunity to put questions to him and to
present expert witnesses in order to testify on
the points at issue.
(3) Unless otherwise agreed by the parties, the
expert shall, on the request of a party, make
available to that party for examination all
documents, goods or other property in the
possession of the expert with which he was
provided in order to prepare his report.

W.P.(C) No.38193 of 2023 Page 21 of 28
37. Appealable orders.--(1) An appeal shall lie
from the following orders (and from no others) to
the Court authorised by law to hear appeals
from original decrees of the Court passing the
order, namely:--
[(a) refusing to refer the parties to
arbitration under section 8;
(b) granting or refusing to grant any
measure under section 9;
(c) setting aside or refusing to set aside
an arbitral award under section 34.]
(2) Appeal shall also lie to a court from an
order of the arbitral tribunal--
(a) accepting the plea referred to in sub-
section (2) or sub-section (3) of section 16; or
(b) granting or refusing to grant an
interim measure under section 17.
(3) No second appeal shall lie from an order
passed in appeal under this section, but nothing
in this section shall affect or take away any right
to appeal to the Supreme Court."
(Emphasis Supplied)

24. Vide paragraph Nos.7, 8 & 9 of the impugned

order No.32 dated 13.11.2023, passed in Arbitration

Proceeding No.23 of 2022, the learned Tribunal observed

and ordered as follows:

"7. Having heard learned counsel for both the
parties, the facts which assume importance for
the consideration of this prayer is that after
settlement of issues on 04.11.2022, both parties
had filed list of admission and denial of
documents by 09.01.2023. Vide order dt.
02.02.2023 it was agreed by both the parties
that "as per procedure to be followed, the
claimant and the respondents are to file the
affidavit evidence in chief of their witness after
completion of cross-examination of witnesses of
which affidavit evidence was filed." This was in
furtherance to sec 19(2) of the Arbitration and

W.P.(C) No.38193 of 2023 Page 22 of 28
Conciliation Act, 1996. Thereafter six witnesses
of claimant were examined and cross-examined.
On 15.07.2023 C.W.7, the witness in question,
was examined in chief and cross-examination
could not be completed. He was cross-examined
on 5.8.2023, 14.08.2023, 02.09.2023 and
4.11.2023 by which date he was asked 208
questions. The respondent has taken two
adjournments i.e. 30.09.2023 and 12.10.2023.
The later was granted on imposition of cost. On
12.10.2023 the period for making award for a
further period of six months with effect from
17.10.2023 under section 29A (3) of Ar. Act was
extended. The question no.169 was asked on
02.09.2023. The above fact demonstrates that
the action of respondent has already prolonged
this proceeding.

8. In the decision reported in 2022 live Law Sc
297, MANORAM NAIK VERSUS THE STATE OF
ODISHA & ANR., the Hon'ble Supreme Court has
reiterated that opinion of the handwriting expert
is not the only way or mode of proving the
signature and handwriting of a person and the
signatures and handwriting of the person can
also be proved under Sections 45, 47 and 73.

9. On giving careful reading to the provisions of
law under which the application is filed, I am of
the considered opinion that the petition was filed
under section 19(4) of the Arbitration and
Conciliation Act and the provision of Civil
Procedure Code and Indian Evidence Act.
Pertinently in course of submission today
learned counsel for the respondent invokes
the jurisdiction under section 26 of the
Arbitration and Conciliation Act. The object
of the arbitration proceeding is fully
crystallized under section 19 of the
Arbitration and Conciliation Act which
speaks that tribunal shall not be bound by
the CPC and Indian Evidence Act. As stated
above on 02.02.2023 the procedure to be
followed was considered on consent of both
the parties in view of section 19 sub-clause
3. The respondent did not whisper anything

W.P.(C) No.38193 of 2023 Page 23 of 28
about examination of any document by the
expert by then and also till completion of
208 questions to C.W.7. The relevancy or
admissibility of documents is quite different
from the manner in which the said
document is to be introduced to the
arbitration proceeding. The mode of proof
as prescribed under Indian Evidence Act is
not to be strictly followed.
Having regards to above facts and
circumstances, as well as law centering around
the prayer I am of the considered opinion that
the petition is devoid of merit and hereby stands
rejected."
(Emphasis Supplied)

25. It is pertinent to mention here that during

hearing, a query being made by this Court, Mr. Kanungo,

learned Senior Counsel submitted that the said Minutes

of Meeting has been marked as exhibit from the side of

the present Petitioner through its witness. In addition to

the same, when the said document was confronted to

C.W. No.7, he denied the same to have been signed by

him. Hence, an application was rightly filed before the

arbitrator for sending the said document to the

handwriting expert and the rejection order passed by the

learned Arbitrator needs interference.

26. Section 19(2) of the Act, 1996 permits the

parties to agree on the procedure to be followed by the

W.P.(C) No.38193 of 2023 Page 24 of 28
learned Arbitrator. In the present case, in terms of

section 19(2) of the Act, 1996, on consent of the parties,

the learned Tribunal vide order dated 02.02.2023

recorded the procedure to be followed in the said

proceeding. After considering the aforesaid aspect, the

learned Arbitrator has rejected the petition and in the

meantime cross-examination of witnesses have been

completed and the matter has been posted for oral

argument.

27. From the pleadings made in the Writ Petition

so also documents on record and the impugned order

passed by the Arbitral Tribunal, it is amply clear that the

present Petitioner, who is the Respondent before the

Arbitral Tribunal, did not produce the original minutes of

meeting dated 20th February, 2019 for the purpose of

confrontation to Claimant Witness No.7, even though the

genuineness of the said documents was disputed by the

present Opposite Party (Claimant before the Arbitral

Tribunal) from the very beginning. While making Counter

Claim against the present Opposite Party, though vide

W.P.(C) No.38193 of 2023 Page 25 of 28
sub-para (q) in para -5, the said document was referred

to and disputing the said averment made in the Counter

Claim the Opposite Party filed its Rejoinder stating the

said document to be manipulated and fabricated, no step

was taken by the Petitioner (Respondent/Counter

Claimant) promptly to produce the original of the said

document and prove the same in accordance with law.

Rather, much after cross-examining C.W.7 exhaustively

on five occasions and putting around 208 questions to

the said witness during his cross-examination, such an

application was filed for sending the said document to the

handwriting expert relying on the answer to question

Nos.169, 170 and 174. The said questions and answers

tendered by the C.W. No.7, which have been quoted in

para-12 of the Writ Petition, are extracted below for ready

reference.

"169. Q. Shown you the minutes of meeting at
page -55 to 57 of the counter claim, is it signed
by you"

Ans. No. The signature available at page - 55
above does not belong to me.

W.P.(C) No.38193 of 2023 Page 26 of 28
170. Q. Can you tell who has written this
minutes of the meeting at page 55 to 57?

Ans. No. I cannot.

174. Q. I am showing your signature in the CFA
agreement and the signature at page 55 and 57
of the counter claim, is it not identical?
Ans. It does not seem so as far as my knowledge
goes."

28. From the conduct of the Petitioner

(Respondent/Counter Claimant), as detailed above, so

also reasons noted by the Arbitral Tribunal vide the

impugned order and the settled position of law, the

impugned order dated 13.11.2023 passed in Arbitration

Proceeding No.23 of 2022 being an interlocutory and

reasoned order, this Court is of the view that the Writ

Petition is not maintainable and the Petitioner, if feels

aggrieved by such an order, has to wait till an Award is

passed by the learned Arbitrator in terms of Section 31(1)

of the Act, 1996. This Court is also of the view that there

is no infirmity or illegality in the impugned order passed