Final Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. MUKESH KUMAR GUPTA, DISTRICT
JUDGE (COMMERCIAL COURT)-07, CENTRAL DISTRICT.
TIS HAZARI COURTS, NEW DELHI.
OMP E (COMM) 14/2025 IN CASE FILE REF NO. DIAC/7772/02-24
Keshav Lal Dua & Anr. ….Applicant
Versus
Divyashakti Associates Pvt. Ltd. ....Respondent
Date on which order was reserved : 13.05.2025
Date on which order was passed : 13.05.20225
Present : Sh. Shagun Mehta and Sh. Sunil Dubey, Ld. Counsels for
Applicant.
None for respondent.
ORDER
1. By way of the present order, I shall conscientiously decide an
application, filed u/S.27 of the Arbitration & Conciliation Act, 1996 on
behalf of the Applicant for seeking assistance of the court for
summoning of witness for evidence.
2. Stating briefly, the proceedings in CASE FILE REF
NO.DIAC/7772/02-24 are pending before the Hon’ble Arbitral Tribunal
of Sh. Kotla Harshvardhan in DIAC at Delhi High Court and the same is
OMP E(Comm)No. 14/2025 Keshav Lal Dua & Anr. Vs. Divyashakti Associates Pvt. Ltd. Page 1/4
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now pending for 29.04.2025, 01.05.2025 and 03.05.2025 for recording of
evidence from applicant’s side.
3. The matter pertains to a dispute arising out from “Construction
Agreement” made at Delhi on 23.02.2021 between the applicant and the
respondent whereby the applicant is obliged to get approval of building
plan from the competent authority through their Architect and the
respondent on that term has agreed to demolish the existing house
property bearing no.D-113 situated at Kamla Nagar, Delhi-110007 and
construct a new building with material on the said property of land
according to the architectural drawing, structural drawing and working
drawings to be provided by the Architects appointed by the applicant.
4. It is submitted that the applicant had moved an application before
the said Arbitral Tribunal seeking examination of evidence of witness
required to be summoned namely Mr. Narender Kapoor from Mars
Associates to prove the valuation report dated 09.12.2021 prepared by
him as per the construction work done at the site of construction and
hence, the said report was filed by the applicant along with his defence
and counter claim before the Arbitral Tribunal.
5. It is further submitted that the applicant has tried to contact the
said witness several times including through a notice dated 24.03.2025
sent via whatsapp and e-mail informing him to appear and depose before
the Arbitral Tribunal, to which the witness has failed to respond to the
applicant.
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6. Accordingly, the applicant filed an application before the learned
Arbitrator seeking permission to approach this court for seeking
assistance for summoning the above named witness. The application for
seeking necessary approval was allowed by the learned Arbitrator on
29.03.2025. Copy of the said order has been placed on record.
7. I have heard the submissions of learned counsel for the applicant
and gone through the record of the case.
8. The law with respect to the court assistance in taking evidence
before the Arbitral Tribunal is incorporated u/S.27 of the Arbitration &
Conciliation Act, 1996 (hereinafter the Act) and provides that the arbitral
tribunal, or a party with the approval of the arbitral tribunal, may apply to
the court for assistance in taking evidence. In BPT Infra Project Pvt.
Ltd. Vs. Indraprastha Ice and Cold Storage Pvt. Ltd.
MANU/DE/4592/2024, it has been held by the Hon’ble Delhi High
Court that there can be no manner of doubt that the arbitral tribunal
cannot mechanically pass orders under Section 27(1) of the 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.
9. A perusal of the order, dated 29.03.2025, of the Arbitral Tribunal
shows that the Arbitral Tribunal has reviewed the applications and the
respondent’s (claimant therein) replies and held that the application
u/s.27 of the Act has been filed to ascertain the true cost of construction
and for that purpose, Mr. Narendra Kapoor’s testimony would be relevant
and necessary for adjudicating the disputes pending before the Arbitral
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Tribunal. Additionally, it was acknowledged by the Ld. Arbitrator that
the expert assistance may be required to evaluate the cost of construction
as the Ld. Arbitrator lacks the required expertise.
10. Having considered the submissions made, the present application
for summoning of Mr. Narender Kapoor from Mars Associates to prove
the valuation report dated 09.12.2021 is allowed, as prayed. The above
named said witness may be summoned as per law along with relevant
record on appropriate steps to be taken by the applicant in accordance
with law. On such steps being taken, the aforesaid witness shall appear
before the Ld. Arbitrator Sh. Kotla Harshvardhan.
11. Needless to say that nothing expressed herein shall tantamount to
an expression of opinion on the merits of the case .
12. Ordered accordingly.
13. Records of this case be consigned to record room after due
completion.
Pronounced in open court.
On 13.05.2025 (Mukesh Kumar Gupta )
District Judge (Comm. Court)-07
Central/Tis Hazari Courts
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