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Courts Assistance in taking evidence Part 2
Procedural check before requesting the court’s assistance
While sending summons by the court, contrary to Section 19, CPC will be applicable. The Court shall obviously be required to follow the method provided under CPC and hence all the summons will be issued in accordance with Order 5 of CPC.
It is also necessary for the parties to take approval of the Arbitral Tribunal before seeking assistance from the Court. The court has no power on its own, without the Arbitrator’s consent, to go ahead and record the evidence or send summons.
Generally, arbitrators do not deny such requests made by the party, especially if the reasons to seek court assistance are found appropriate.
Remedy available if the arbitral tribunal refuses to give approval to obtain court’s assistance
If the Tribunal in any case refuses to take court assistance and denies the party’s application, the party cannot do anything at that stage. The only remedy it has is to challenge the award (once it is issued) under Section 34.
Particulars to be specified in the application
This section provides for all the details that the application must contain. The details include:
- Names and addresses of the parties and the arbitrators,
- General nature of the claim and relief sought,
- The evidence to be obtained in particular, -
- i) the name and address of any person to be heard as witness or expert witness and a statement of the subject matter of the testimony required;
- ii) The description of any document to be produced or property to be inspected.
The purpose of specifying these details is to restrict the court’s adjudication to the above-mentioned reference only. There have been times where the Court considers such applications to be opportunities for adjudicating the entire case and goes on to rule on the merits of the case. It is to be understood that the reference is only assist in taking evidence and confine themselves to the examination and cross-examination of witnesses or issuing summons. This application is not an attempt to seek relief from the court with regards to the substance of the dispute.
Hence, this application should be carefully considered. Futile applications for court’s assistance should not be used to further derail the process of arbitration. A careful examination of the situation at hand and the necessity for court intervention should be cleverly understood by all the parties.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
- Courts Assistance in taking evidence Part 2
- Procedural check before requesting the court’s assistance
- Remedy available if the arbitral tribunal refuses to give approval to obtain court’s assistance
