Manmohan Singh, J.@mdashBy this order I propose to decide the present petition filed u/s 27 of the Arbitration and Conciliation Act, 1996. The disputes between the parties were referred for adjudication to Mr. Justice Anil Dev Singh (Retd.) as an independent Arbitrator. After completion of pleadings, the respondent filed affidavit by way of evidence of its witness namely Mr. Sachin Kumar, working as Assistant General Manager with the respondent.
2. The examination-in-chief of the said witness was recorded before the learned Arbitrator on 12th December, 2011.
3. The said witness Mr. Sachin Kumar was cross examined on 20th January, 2012, 29th February, 2012 and 19th April, 2012. While the said witness was under cross-examination, the respondent moved an application before the learned Arbitrator seeking leave for change of its witness as the said witness resigned from the employment of the respondent on 18th January, 2012 and he was not available for further deposition or cross-examination before the learned Arbitral Tribunal. Infact, the respondent sought leave to replace the said witness by another witness namely Mr. Prakash Veer, the Executive Vice President of the respondent company.
4. Reply to the said application of the respondent was filed by the petitioner before learned Arbitral Tribunal.
5. The said application was heard on 1st September, 2012 by the learned Arbitral Tribunal and after consideration, the petitioner was permitted to file an application u/s 27 of the Arbitration and Conciliation Act, 1996 before this Court to secure the presence of Mr. Sachin Kumar for his further cross-examination.
6. Therefore, the present application has been filed by the petitioner seeking direction of this Court to produce Mr. Sachin Kumar to appear before the learned Arbitral Tribunal for completing his cross examination. It is stated that if the prayer of this application is not allowed, the grave and irreparable injury will be caused to the petitioner.
7. The respondent has opposed the prayer made in the present application. Learned counsel for the respondent submits that the order dated 1st September, 2012 passed by the learned sole Arbitrator allowing the petitioner to approach this Court u/s 27 of the Arbitration and Conciliation Act, 1996 is erroneous. He further submits that by order dated 19th November, 2012, the sole Arbitrator has already allowed the application of the respondent and affidavit of Mr. Parkash Veer has been taken on record as respondent''s witness. His contention is that if the said witness Mr. Sachin Kumar is allowed to be produced before the learned Arbitral Tribunal on the application of the petitioner, the respondent would be entitled to cross-examine the said witness as the petitioner is calling him as a witness.
8. The fact of the matter is that the learned sole Arbitrator has permitted the petitioner to file the present application u/s 27 of the Arbitration and Conciliation Act, 1996 to secure the presence of Mr. Sachin Kumar for his further cross-examination as the respondent is not in a position to secure his presence for further cross-examination. Therefore, the respondent cannot be allowed to cross-examine his own witness whose presence is being secured by the petitioner after approval of the learned Arbitral Tribunal. In the order dated 1st September, 2012, the learned sole Arbitrator has specifically recorded as under:
I have given my anxious consideration to the submissions of learned Counsel for the parties. Mr. Sachin Kumar, CW-1 tendered his affidavit by way of examination-in-chief on December 12, 2011. He was also cross-examined part in the aforesaid date. His further cross-examination was recorded on January 20, 2012, February 29, 2012 and April 19, 2012. Thereafter, he neither appeared for recording his further cross-examination nor came to sign his cross-examination recorded on April 19, 2012. The cross-examination of Mr. Sachin Kumar cannot be permitted to remain incomplete even though it may be inconvenient for him to face the cross-examination.
9. As far as new witness of the respondent is concerned, no doubt, the respondent has filed an affidavit of Mr. Parkash Veer, the respondent would be entitled to produce him in examination-in-chief and the petitioner would be entitled to cross-examine him in accordance with law. As far as contention of the respondent, that the order dated 1st September, 2012 passed by the learned sole Arbitrator whereby the petitioner was allowed to file the application is erroneous, is concerned, this court is not agreeable with the said argument of the respondent.
10. After having considered the submissions of the learned counsel for the parties and the order dated 1st September, 2012, the present petition is allowed. The petitioner is permitted to take the assistance of Registry to get the notice in order to secure the presence of Mr. Sachin Kumar for his further cross-examination after completing all requirements on such dates as fixed by the learned Arbitral Tribunal. One set of notice be given dasti to the petitioner for the service. The petition is accordingly disposed of. No costs.
