The High Court
Case Details
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
Legal Reasoning
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: that a “18. In any case, the hierarchy in our legal legislative framework, mandates 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 it under Article 226 of in the can the High Court Constitution, 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 redressal of grievances, a writ petition should not be entertained statutory dispensation.” ignoring law the for (emphasis supplied) beyond to allow the It is therefore, prudent for a Judge to not judicial exercise discretion procedure interference 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 the arbitration agreement, even 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 therefore, agreement. We, parties 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 though, by if W.P.(C) No.38193 of 2023 Page 17 of 28 it High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the Arbitral Tribunal. Therefore, 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. Principle “ii. interference of minimum judicial 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 in arbitral proscribe the proceedings, which would undermine 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 interference judicial W.P.(C) No.38193 of 2023 Page 18 of 28 the arbitral procedures. This to determine in principle has also been international instruments, including the New York Convention and the Model Law.” incorporated 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. that (3) A plea the arbitral 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. tribunal (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 its proceedings. conducting tribunal in (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 relevance, materiality and weight of any evidence. admissibility, the 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 in the documents, goods or other property 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 arbitration under section 8; to refer the parties to (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 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. taken 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 the provision of Civil Conciliation Act and 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 is fully of the arbitration proceeding 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 in which the said from the manner introduced to the document arbitration proceeding. The mode of proof as prescribed under Indian Evidence Act is not to be strictly followed. is to be 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
Decision
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 by the learned Arbitral Tribunal and if at all, it being an interlocutory order, in view of the provisions the Act, 1996 and the settled position of law, as detailed above, W.P.(C) No.38193 of 2023 Page 27 of 28 the Writ Petition challenging the said order dated 13.11.2023 is not maintainable. Accordingly, the same stands dismissed. …….…..……………… S.K. MISHRA, J. Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 25-Jun-2024 18:32:15 High Court of Orissa, Cuttack The 24th June, 2024 /Prasant W.P.(C) No.38193 of 2023 Page 28 of 28