17 January 2022 | Dilip v. Errol Moraes | Arbitration Petition (L) No. 722 of 2022 | High Court of Bombay | GS Kulkarni J | 2022 SCC OnLine Bom 129

Section 27 ACA enables the arbitral tribunal, or a party to the dispute with the approval of the arbitral tribunal, to apply to the court for assistance in taking evidence. A single judge of the Bombay High Court has ruled that the court must not perform an adjudicatory role while considering such a request. If the requirements of locus are satisfied, the court must necessarily exercise its jurisdiction.

The tribunal had allowed Dilip’s request to take the court’s assistance and rejected Errol’s objections by a detailed order. In the tribunal’s view, the evidence of the proposed witness was material.

Errol’s objection continued before the High Court, and he argued that even if the tribunal takes a prima facie view, the final decision lies with the court following Order XVI Rule 1 Code of Civil Procedure (“CPC”) [citing Delhi High Court’s Hindustan Petroleum (2006) 91 DRJ 591].

The court rejected the argument and ruled that:

1. Under Section 27 ACA, the court has not been attributed any adjudicatory role.
2. Section 27 ACA has to be read on the touchstone of Section 5 ACA (no judicial interference unless specified) and Section 19 ACA (tribunal not bound by CPC or Evidence Act).
3. The tribunal’s approach was extremely fair. It considered the rival contentions and though not bound by the strict procedures of CPC, applied Order XVI Rules (2) and (3) sub silentio.
4. The tribunal is the master of the proceedings and has the ultimate jurisdiction to decide the appropriate and relevant witnesses.
5. Hindustan Petroleum did not support the respondent’s case at all. Once the tribunal forms a prima facie opinion, the court cannot scrutinise it because Section 27 ACA proceedings are not appealed. Moreover, in the Delhi High Court case, the tribunal had not applied its mind to the request under a misconception that it had no role. Though the Delhi High Court noted that the procedure under Section 27 ACA would be of Order XVI CPC, it also said that a condition of prior approval of the arbitral tribunal is envisaged to avoid inundating the court with unnecessary requests.

Read the decision here.