Case Note & Summary
The petition was filed under section 27 of the Arbitration and Conciliation Act, 1996 by the two petitioners, who were the original respondents in the arbitration proceedings, seeking issuance of a commission to Singapore to record the evidence of Mr. Gerard Craggs. The respondents were the original claimants in the arbitration. Disputes arose from various agreements entered into around 2004. By consent minutes dated 14 June 2016, the parties agreed to refer all disputes to a sole arbitrator, Mr. Fredun E. De Vitre, with seat and venue at Mumbai and exclusive jurisdiction of Mumbai courts. In the arbitration, the respondents had earlier sought and obtained leave from the arbitrator to approach the court for issuance of a commission to examine their foreign witness, Mr. Mathew Stock. The petitioners sought to examine two witnesses, including Mr. Gerard Craggs, who was the managing director of the first petitioner and a resident of Singapore. The petitioners initially requested recording of evidence by video conferencing, which the respondents refused. The arbitrator initially directed that Mr. Craggs’s cross-examination be conducted in Singapore at the petitioners’ cost, but later recalled that order and directed him to appear in Mumbai. The respondents then applied to close evidence and disregard the affidavit of Mr. Craggs. The arbitrator rejected that application on 23 February 2018 and granted the petitioners leave to approach the court under section 27. The petitioners then filed this petition. The petitioners argued that similar relief was granted to respondents earlier, that the respondents could not oppose the petition, and that issuing a commission to Singapore did not amount to a change of the venue of arbitration. The court heard the matter on 2 May 2018 and pronounced judgment on 8 June 2018. The judgment text is incomplete and does not contain the final decision or reasoning.
Issue of Consideration
Whether the court should allow a petition under section 27 of the Arbitration and Conciliation Act, 1996 for issuance of a commission to Singapore to record evidence of a witness who is resident abroad and unable to travel to Mumbai, where the seat and venue of the arbitration is Mumbai.
Law Points
- Relief under section 27 of the Arbitration and Conciliation Act
- 1996
- Issuance of commission to record evidence abroad
- Assistance of court in taking evidence
- Recording evidence by video conferencing under section 19
- Leave of arbitral tribunal for court assistance
- Change of venue of arbitration
Case Details
2018 LawText (BOM) (06) 66
Arbitration Petition No. 332 of 2018
For petitioners: Rohit Kapadia, Senior Advocate, with Chirag Kamdar, Mohit Advani, Pranjal Mehta, instructed by Cyril Amarchand Mangaldas; For respondents: G.R. Joshi, Senior Advocate, with Chirag Mody, Anusha Jacob, Yash Momaya, instructed by DSK Legal
1. Stemcor (S.E.A.) Pte Limited, 2. Moorgate Industries India Pvt.Ltd.
1. Mideast Integrated Steels Limited, 2. MESCO Hotels Limited, 3. MESCO Kalinga Steels Limited, 4. MESCO Logistics Limited
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Nature of Litigation
Arbitration petition under Section 27 of the Arbitration and Conciliation Act, 1996 seeking issuance of a commission to Singapore to record the evidence of a witness.
Remedy Sought
The petitioners sought issuance of a commission to Singapore to record the evidence of Mr. Gerard Craggs, who was resident in Singapore and unable to travel to Mumbai for cross-examination in the arbitration proceedings.
Filing Reason
The witness, Mr. Gerard Craggs, was unable to travel to Mumbai for cross-examination; the respondents refused video conferencing; and the arbitral tribunal granted leave to the petitioners to approach the court under Section 27 for assistance.
Previous Decisions
The arbitral tribunal had earlier allowed the respondents to approach the court for issuance of a commission to examine their foreign witness, Mr. Mathew Stock. On 23 February 2018, the tribunal rejected the respondents' application to close evidence and granted the petitioners leave to apply to court under Section 27.
Issues
Whether the court should issue a commission to Singapore to record the evidence of Mr. Gerard Craggs under Section 27 of the Arbitration and Conciliation Act, 1996.
Submissions/Arguments
The petitioners contended that similar leave was granted to the respondents for their foreign witness, Mr. Mathew Stock, and therefore the respondents could not oppose the petitioners' application.
The petitioners argued that issuance of a commission to Singapore would not amount to a change of the venue of the arbitration, which had been agreed to be Mumbai.
The petitioners submitted that the entire cost of the commission would be borne by them.
Judgment Excerpts
Clause 3 of the said agreed consent terms provided as under :- 3. The said Agreements are/shall be governed by the laws of India. The seat and venue of the arbitration shall be Mumbai. The courts at Mumbai shall have exclusive jurisdiction in relation to the arbitration.
The learned arbitrator passed an order thereby rejecting the application dated 22nd January,2018 filed by the respondents inter alia praying for closure of evidence and granting leave to the petitioners to approach this court for assistance under section 27 of the Arbitration Act for the issuance of the commission to record the evidence of Mr.Gerard Craggs.
The issuance of a commission to Singapore cannot amount to the change of the venue of the arbitratio...
Procedural History
In 2004, the parties entered into multiple agreements. Disputes arose, and the respondents initiated arbitration. On 14 June 2016, by consent minutes in Commercial Arbitration Petition (L) No.7 of 2016, the parties agreed to refer disputes to sole arbitrator Mr. Fredun E. De Vitre, with seat and venue at Mumbai and exclusive court jurisdiction in Mumbai. The respondents filed their statement of claim; the petitioners filed written statement and counterclaim. The respondents examined four witnesses, including Mr. Mathew Stock. The petitioners proposed to examine Mr. Aditeshwar Dayal Seth and Mr. Gerard Craggs. On 20 March 2017, the respondents sought leave to file an affidavit of a new witness and to apply for witness summons under Section 27 for Mr. Stock. On 4 April 2017, the arbitrator declined approval for the Stock summons but granted liberty to reapply if necessary. On 19 April 2017, the respondents again sought approval to summon Stock. On 5 May 2017, they amended the application to seek commission/letter of request to examine Stock. On 8 July 2017, the arbitrator provided Stock an opportunity to depose in Mumbai and alternatively granted approval to approach the court for commission under Section 27. On 21 November 2017, the petitioners requested video conferencing for Craggs; the respondents refused. On 24 November 2017, the petitioners applied to the arbitrator under Section 19 for video conferencing. On 24 December 2017, the arbitrator directed that Craggs's cross-examination could be conducted in Singapore if he were unavailable in Mumbai. On 3 January 2018, the respondents sought revocation of that order, which the arbitrator allowed on 13 January 2018, directing Craggs to appear in Mumbai. On 22 January 2018, the respondents applied to close evidence; on 23 January 2018, the petitioners sought recall of the 13 January order and alternatively leave to apply to court under Section 27. On 23 February 2018, the arbitrator rejected the respondents' closure application and granted petitioners leave to approach the court under Section 27. The present petition was filed thereafter. The matter was heard on 2 May 2018 and judgment pronounced on 8 June 2018.
Acts & Sections
- Arbitration and Conciliation Act, 1996: 27, 19
