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TMI Blog2013 (3) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... ise the facts in arbitration petition No. 300 of 2012 which were referred by both the parties. 2. The petitioner has advanced submissions only on three issues though various grounds are raised in the petitions and thus, facts and submissions relating to those three issues canvassed by the petitioner are set out hereinafter. 3. The petitioner was carrying on business in the name and style of M/s. Kuber Builders and also in the name and style including Kuber Planters Ltd. Under a letter of allotment dated 23rd December 1997 issued by CIDCO, the petitioner acquired the lease hold interest in respect of land being piece and parcel of land admeasuring approximately 2382.12 sq. mtrs bearing No. 18/4, Sector 10, Vashi, District Thane, Maharashtra on the terms and conditions contained therein. On 10th July 2000, the petitioner and the respondent entered into an agreement by which, the services of the petitioner for development and completing the incomplete building for commercial and residential use on profit sharing basis on the terms and conditions set out in the said agreement was engaged. On 16th August 2000, the Competent Authority under the Maharashtra Protection of Interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all deeds and documents to do all acts and things necessary. The learned arbitrator ordered and directed the petitioner to pay an amount of Rs. 11,58,500/- by way of costs within three months from the date of award and in case of failure to pay, directed to pay the said amount with interest @ 10% per annum from the date of expiry of three months from the date of award. The learned arbitrator rejected the counter claim filed by the petitioner. Similar award was declared in other three matters also which are subject matter of arbitration petition Nos. 301 to 303 of 2012. 6. Mr. Anturkar, the learned counsel appearing on behalf of the petitioners made three submissions for consideration of this Court as under: (i) the learned arbitrator did not give full opportunity to the petitioner to represent his case; (ii) the learned arbitrator violated the mandatory procedure under Section 24 of the Act; and (iii) the learned arbitrator acted with biased and prejudiced mind against the petitioner and the award is thus, vitiated on this ground. 7. I shall first deal with the first two issues raised by the petitioner alleging lack of full opportunity and violation of provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belatedly, the arbitrator ought to have allowed it as the arbitrator is bound to render full opportunity to the parties under Section 18 of the Act. The learned arbitrator, however rejected that application. It is submitted that arbitrator would have been more liberal than a Civil Court in giving full opportunity. 10. Mr. Anturkar, the learned counsel appearing for the petitioner submits that on 2nd May 2006, when the petitioner made an application under Section 26 of the Act, the learned arbitrator rejected the said application and refused to appoint any Expert at that stage and held that in the facts and circumstances of the case at that stage, he did not find any reasons to exercise powers under Section 26 of the Act. If at any stage of the proceedings in the course of arguments or thereafter, if it was felt necessary to exercise the power in respect of any specific issue, which may require to be determined under Section 26 of the Act, appropriate orders would be passed at that stage in that regard. The learned counsel submits that when at the subsequent stage, the petitioner applied for an opportunity to lead evidence or to refer the disputed documents for opinion of handwri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration meeting hall, the learned arbitrator had already adjourned the meeting. It is submitted that in view of the serious allegations of fraud, forgery and fabrication by the petitioner, the learned arbitrator considering the controversy invoked, ought to have given an opportunity to find out the truth by imposing some cost on the petitioner, as the dispute raised by the petitioner would go to the root of the matter. 14. The learned counsel then submits that if one of the party applies for opportunity to lead his evidence which is part of hearing under Section 24, the learned arbitrator ought to have given an opportunity of hearing which includes oral evidence. It is submitted that if a party applies for oral evidence at any stage, the learned arbitrator has no discretion to reject such application. 15. Mr. Shrihari Aney, the learned senior counsel appearing on behalf of the respondent responded on these issues raised by the petitioner. The learned senior counsel submits that Section 19(3) (4) of the Arbitration and Conciliation Act cannot be read in isolation but has to be read with Section 18 and proviso to Section 24 of the said Act. It is submitted that the ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Section 33(1)(a) of the Arbitration Act 1996 referees to a reasonable opportunity whereas Article 18 of the Model Law on which it is based refers to a full opportunity. This reflects the DAC's intention that the right to present the case should not be without limit. 16. The learned senior counsel submits that the right to represent his case by a party does not mean that a party has an unfettered right to make submissions or present evidence as and when he wishes. It is submitted that the expression, 'full opportunity' is subject to other provisions of the Act particularly Section 19, 24 and other provisions of Part V thereof. It is submitted that the expression 'full opportunity to present the case' has to be read also in context of treatment to the parties with equality as contemplated in the first part of Section 18 of the said Act. The learned senior counsel then submits that after closing of petitioner's evidence on 25th April 2006, the petitioner made application under Section 26 of the Act, application under Section 27 of the Act to this Court and also petition under Section 14 of the Act in order to jeopardize the entire arbitration proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration Petition No. 367 of 2007 under Section 14 of the Act also alleging bias against the learned arbitrator. By an order dated 8th October 2007, this Court dismissed the said arbitration petition (367/07). Being aggrieved by the said order, the petitioner filed Special Leave Petition. The Honourable Supreme Court dismissed the said SLP filed by the petitioner and directed the learned arbitrator to decide the issue under Section 16 raised by the petitioner. 19. The learned senior counsel submits that in view of Section 19 read with Section 24 of the Act, it is not permissible for the parties to produce evidence after closure of their evidence and when submissions of the parties are substantially completed. 20. It is submitted that if the learned arbitrator would have permitted production of additional and new evidence at that stage, that would have been in violation of the procedure under Section 19 read with Section 24 and would have been in violation of principle of natural justice with the respondents. The learned counsel submits that the agreements referred to and relied upon by the respondents in arbitration proceedings were also relied upon by the petitioner in various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. Hearings and written proceedings: (1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials: Provided that the arbitral tribunal shall hold oral hearings, at an appropriate state of the proceedings, on a request by a party, unless the parties ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d arbitrator, the petitioner had sought adjournment on more than 23 sittings. The petitioner argued on 11 days of hearing before the learned arbitrator to make his final arguments. After 27th October 2005, the learned arbitrator had granted liberty to the petitioner to approach this Court for the purpose of obtaining witness summons on various witnesses including Mr. Mathur, the handwriting expert. Though the petitioner filed four arbitration applications under Section 27 of the Act in this Court praying for issuance of witness summons including on Mr. Mathur, the petitioner did not pursue the said petitions and filed affidavit of evidence only in respect of two witnesses before the learned arbitrator. The respondents had cross-examined both the witnesses examined by the petitioner. The petitioner had also filed affidavit of evidence of Mr. J.S. Tiger and though he was present before the learned arbitrator, the petitioner made a statement that he did not wish to lead evidence of Mr. J.S. Tiger. The learned arbitrator therefore adjourned the matter for examination of Mr. Anil Mathur, the handwriting expert as per the request of the petitioner's Advocate. On 16th March 2006, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard indicates that the petitioner himself had relied upon the same agreements which the respondents were relying upon in various proceedings filed by the petitioner himself such as (a) Affidavit dated 27th November 2000 in Misc. Application No. 69 of 2000 in MPID Special Case No. 7 of 2000, (b) Criminal Appeal No. 74 of 2001, (c) Writ Petition No. 3661 of 2001, (d) Affidavit dated 26th July 2001 M.A. No. 129 of 2001 in Special Case No. 7 of 2000, (e) Affidavit dated 6th November 2001 filed in Writ Petition Nos. 3661 of 2001 and 3662 of 2001 before the learned Special Judge in MPID Special Case No. 7 of 2000, Criminal Appeal No. 76 of 2001 and Arbitration Application No. 252 of 2002. The petitioner also did not dispute the genuineness of the agreement in the proceedings before the learned Special Judge in MPID Spl. Case No. 7 of 2000. It is not in dispute that pursuant to order dated 16th January 2001 passed in criminal proceedings, the original agreements were handed over to the Investigating Officer by the respondents when the petitioner was personally present. These facts are admitted by the petitioner through his witness in his cross-examination. The petitioner's witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal agreement issued by the Special Court. The learned arbitrator also rendered a finding of fact that there was nothing on record to show that there was no agreement between the parties which contained the arbitration clause. The learned arbitrator recorded a statement made by the petitioner through his Advocate Mr. Trivedi that the petitioner did not dispute the correctness of the certified copy furnished by the respondents to the learned arbitrator. The learned arbitrator perused the records and rendered a finding that petitioner had clearly stated that he had signed four agreements in Delhi in presence of various witnesses, petitioner however did not enter the witness box. 29. On the issue of examining the document by an Expert or by examining a handwriting expert, the learned arbitrator has narrated the events as how the matter was proceeded by the parties on this issue. Though the petitioner, at one stage had proposed to examine Mr. Mathur, the handwriting expert and was given an opportunity to examine the said handwriting expert, the petitioner made a statement that the said witness was not willing to offer himself as witness and the petitioner therefore, closed his e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned arbitrator passed an order dated 24th July 2007 on the said applications dated 5th March 2007 and 6th March 2007 and held that the issue of witness summons was already decided by the arbitral tribunal earlier. The petitioner challenged the said order by filing arbitration petition (367/07) under Section 14 of the Act in this Court. In the said petition, petitioner had raised a ground that the learned arbitrator, by not taking report of Mr. V.C. Mishra and by rejecting application under Section 27, violated the principles of natural justice and was biased. The petitioner did not disclose its waiver of not calling Mr. V.C. Mishra as his witness. The said petition was dismissed by this Court by passing detail order and Judgment on 8th October 2007. 32. In my view, there is no substance in the contention of Mr. Anturkar, the learned counsel appearing for the petitioner that learned arbitrator ought to have taken into consideration Mr. Mishra's report, or that the same was alleged to be on record by virtue of Order 26 Rule 10 of the Code of Civil Procedure and was part and parcel of record and proceedings. It is not in dispute that the learned arbitrator did not appoint Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mishra's report was thereafter confirmed by the Sessions Court and also by this Court. 35. The expression 'full opportunity to present his case' used in Section 18 of the Act, would, in my view, mean full opportunity to be given to both the parties before the learned arbitrator. Both the parties were already allowed to lead its evidence by the learned arbitrator. Both had led oral as well as documentary evidence. After the petitioner closed his evidence, respondents had commenced and almost completed their arguments before the learned arbitrator. The respondents had no opportunity to lead any further evidence as the evidence of both the parties was closed. The learned arbitrator, therefore, was right, in my view, in rejecting the application belatedly made by the petitioner for permitting the petitioner to apply for issuance of writ of summons to this Court to Mr. Mishra or to refer the document for examination of a handwriting expert. In my view, under the guise of full opportunity, a party cannot be permitted to delay and/or frustrate the arbitration proceedings by one or the other means. 36. The record indicates that the petitioner was in habit of delaying arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prevent any injustice to the respondents, in my view, the learned arbitrator was justified in rejecting the said application made at belated stage. In my view, Section 19(3) and (4) has to be read with Section 18 and with proviso to Section 24 of the Act on the aspect of procedure, hearing and compliance of natural justice by an arbitrator. 37. Question then arises for consideration of this Court is whether by rejecting application made by the petitioner seeking permission to apply in this Court for issuance of writ of summons or for referring the disputed document to handwriting expert at belated stage, would be at all in violation of principles of natural justice and no prejudice would have been caused to the petitioner by rejecting his application to lead oral evidence. The petitioner wanted to apply for permission to file proceedings in this Court for issuance of witness summons or to refer the disputed document to handwriting expert at belated stage for the purpose of proving his allegation that the documents relied upon by the respondents were forged and fabricated documents. Though an opportunity was given by the learned arbitrator earlier, petitioner did not examine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. 39. On conjoint reading of the provisions of Section 18, 19 and 24 of the Act, it is clear that scheme of the Act in so far as powers of the arbitrator is concerned, the provisions of Code of Civil Procedure which empowers the Court to follow the procedure provided therein are slightly different. In my view, even a Civil Court, in these facts, would not have granted an opportunity to lead oral evidence once evidence was closed by both the parties and arguments of the plaintiff were substantially completed. 40. The next submission of Mr. Anturkar, learned counsel appearing for the petitioner is that various observations have been made by the learned arbitrator against the conduct of the petitioner and also on merits, which observations would indicate that the learned arbitrator was totally biased and his mind was totally prejudiced against the petitioner, in view of the petitioner's filing petition under Section 14 of the Act in this Court and for other reasons. The learned counsel submits that after rejecting the application of the petitioner to examine Mr. Mishra, learned arbitrator passed an award in which, he has stated with prejudiced mind that such request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has not substantiated the said allegation though the matter was adjourned by this Court at the request of the petitioner to seek amendment to the petition and liberty was granted to amend the petition, petitioner did not amend the petition. The learned arbitrator had shown all indulgence to both the parties and more indulgence to the petitioner by granting various adjournments and granted full opportunity. During the course of hearing before the learned arbitrator, the petitioner, through his Advocate, had withdrawn the allegations of bias. Allegations of bias made by the petitioner in their petition under Section 14 of the Act came to be rejected by this Court. The Supreme Court did not interfere with the said order and merely directed the learned arbitrator to decide application under Section 16 made by the petitioner. Petitioner did not make any application within time prescribed under Section 13(2) of the Act. The petitioner made belated application under Section 12 by which the petitioner repeated his allegations made in petition filed under Section 14 which were already rejected by this Court. The learned arbitrator, therefore was right in rejecting the application made by ..... 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