THE ARBITRAL TRIBUNAL HAS THE POWER TO SUMMON A WITNESS UNDER SECTION 27 OF THE A&C ACT, 1996

During the course of arbitration proceedings, the Arbitral tribunal or the parties with the approval of the Arbitral tribunal may seek the court’s assistance in taking evidence.

Section 27 stipulates thus:

Court assistance in taking evidence.—

(1) The Arbitral tribunal, or a party with the approval of the Arbitral tribunal, may apply to the Court for assistance in taking evidence.

(2) The application shall specify—

(a) the names and addresses of the parties and the arbitrators;

(b) the general nature of the claim and the relief sought;

(c) 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.

(3) The Court may, within its competence and according to its rules on taking evidence, execute the

request by ordering that the evidence be provided directly to the arbitral tribunal.

(4) The Court may, while making an order under sub-section (3), issue the same processes to

witnesses as it may issue in suits tried before it.

(5) Persons failing to attend in accordance with such process, or making any other default, or refusing

to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral

proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court

on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before

the Court.

(6) In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents. 

The wording of the above section envisages that only the courts are empowered to summon a witness not the Arbitral Tribunal but this lacuna has been well settled and observed over time that section 27 of the A&C Act is an enabling section that empowers the Arbitral tribunal the powers to summon a witness for proper and affecting adjudication of disputes.

In Delta Distilleries Ltd. v. United Spirits Ltd., (2014) 1 SCC 113, The Hon’ble Supreme Court while deciding whether the Arbitral Tribunal can proceed to pass an Award when the the parties to the proceedings failed to appear as per section 25 (c) of the A&C, Act, 1996, it observed that the “Arbitral tribunal may continue the proceedings, and make the Arbitral award on the evidence before it. This evidence can be sought either from any third person or from a party to the proceeding itself……It is undoubtedly clear that if a party fails to appear before the Arbitral Tribunal, the Tribunal can proceed ex-parte, as provided under Section 25(c). At the same time, it cannot be ignored that the Tribunal is required to make an award on the merits of the claim placed before it. For that purpose, if any evidence becomes necessary, the Tribunal ought to have the power to get the evidence, and it is for this purpose only that this enabling section has been provided.”

The High Court of Delhi in  Hindustan Petroleum Corpn. Ltd. v. Ashok Kumar Garg, 2006 SCC OnLine Del 1056 observed that the Tribunal duty is not to merely act as a rubber stamp for approval for the parties to approach the court under section 27 of the A7C Act, the tribunal is the master of the case and  must scrutinize at least prima facie that there is relevancy of the witness sought to be produced.

The High court of Bombay in Dilip v. Errol Moraes, 2022 SCC OnLine Bom 129 observed that “The Arbitral tribunal, being the master of the proceedings before it, has the ultimate jurisdiction to come to a conclusion, in the course of the adjudication, to form an opinion as to who are the appropriate and relevant witness to be examined by the parties.”

Another judgement of the same high court in National Insurance Company Limited v. S.A. Enterprises, 2015 SCC OnLine Bom 5063 opined that “the purpose of Section 27 of the Arbitration Act, in my view, is to provide assistance to the Arbitral tribunal or to a party in taking evidence with a view to expedite the Arbitral proceedings. Merely because the Arbitral tribunal has no power to issue a witness summons or to compel the attendance of the witnesses, the parties should not suffer. The legislature has inserted the Section 27 of the Arbitration Act to avoid this inconvenience to the parties to the Arbitral proceedings and has thus empowered the Arbitral tribunal as well as the parties to take assistance of the Court. The Court is empowered to issue direction to a party or even third party to produce documents or witnesses by summoning the party or even third party if the Arbitral tribunal has granted permission and is of the opinion that production of such documents or evidence of such party including third party would be necessary for proper and effective adjudication of the dispute before it.”

When a foreign witness is required to be summoned in an arbitration proceedings in India, The Bombay HC in Stemcor (S.E.A) (P) Ltd vs. Midesat Intergrated Steels Ltd 2018 SCC Online Bom 1190 held that  the court in India does not have the power or extra-territorial jurisdiction to issue a witness summons to a person who is not a resident of India but the court has ample power to issue a “Letter of Request” to the concerned commission for examining a foreign witness by exercising powers under section 77 & & 75 along with order XXVI rule 5 of the CPC, 1908 with the aid of section 27(6) of the A&C Act, 1996.

Thus, the Arbitral tribunal being the master of the roster has the complete power to summon a necessary witness for proper adjudication of the disputes