Section 27
Court Assistance in Taking Evidence
Arbitration proceedings are designed to be self-contained and independent. However, there are instances where an arbitral tribunal requires the assistance of a civil court to collect evidence. Section 27 of the Arbitration and Conciliation Act, 1996, facilitates this by enabling an arbitral tribunal or a party, with the tribunal’s approval, to seek court assistance in taking evidence. This provision bridges the gap between arbitral autonomy and judicial support, ensuring that evidentiary processes are effectively enforced in arbitration. It allows the tribunal to request the court’s intervention in summoning witnesses, examining them on oath, or producing documents essential to the case.
Sub-section (1): Seeking Court Assistance
The arbitral tribunal or a party, with tribunal approval, may apply to the court for help in collecting evidence. This provision ensures that arbitration proceedings are not hindered by the non-availability of crucial evidence.
The Delhi High Court in BPT Infra Project Pvt. Ltd. v. Indraprastha ICE and Cold Storage Pvt. Ltd. 2024 SCC OnLine Del 4755, observed,
“There can be no manner of doubt that the arbitral tribunal cannot mechanically pass orders under Section 27(1) of the 1996 Act and that the order passed under the said provision must reflect a conscious view that the evidence of the persons whose presence the applicant seeks, is relevant or material to the case.”
Sub-section (2): Application Requirements
An application for court assistance under Section 27 must include essential details such as:
- Names and addresses of the parties and arbitrators.
- General nature of the claim and relief sought.
- Specific evidence required, including:
- Witness details and subject matter of their testimony.
- Description of documents to be produced or property to be inspected.
Sub-section (3): Court’s Role in Taking Evidence
The court, following its own rules on taking evidence, may order that the evidence be provided directly to the arbitral tribunal, ensuring minimal disruption to arbitration proceedings.
Sub-section (4): Issuance of Processes
When granting assistance, the court may issue processes such as witness summonses, similar to those in regular civil suits, ensuring legal enforceability.
Sub-section (5): Consequences of Non-Compliance
If a summoned person fails to attend, refuses to testify, or commits contempt during arbitral proceedings, the court may impose penalties equivalent to those in regular suits, reinforcing the tribunal’s authority.
In Dalmia Family Office Trust and Another v. Getamber Anand and Others 2024 SCC OnLine Del 7155, the Delhi High Court reaffirmed the judicial opinion in Sri. Krishan v. Anand, 2009 SCC OnLine Del 2472:
“The Delhi High Court held that any person failing to comply with the order of the Arbitral Tribunal under Section 17 would be deemed to be “making any other default” or “guilty of any contempt to the Arbitral Tribunal during the conduct of the proceedings” under Section 27(5) of Act. The remedy of the aggrieved party would then be to apply to the Arbitral Tribunal for making a representation to the court to mete out appropriate punishment. Once such a representation is received by the court from the Arbitral Tribunal, the court would be competent to deal with such party in default as if it is in contempt of an order of the court i.e. either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2-A of the Civil Procedure Code, 1908.”
Sub-section (6): “Processes”
The term “Processes” includes:
- Summonses and commissions for examining witnesses,
- Summonses for document production. These measures ensure comprehensive legal backing for arbitration proceedings.
Conclusion
Section 27 of the Arbitration and Conciliation Act, 1996, plays a crucial role in strengthening the arbitration process by allowing courts to assist in evidence collection. Indian courts have consistently upheld the essence of this provision while ensuring minimal judicial intervention. By enforcing a robust evidentiary framework, Section 27 ensures that arbitration in India remains an effective and efficient dispute resolution mechanism.
Disclaimer: This blog is for informational purposes only and does not constitute any legal advice. Readers should seek expert legal counsel before taking any action based on the content.