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The Calcutta High Court on Monday held that despite the bar over judicial intervention in an Arbitral Proceeding, the High Court can exercise power of judicial review under Article 227, if a miscarriage of justice has been done.

A Single Bench of the High Court comprising Justice Sabyasachi Bhattacharyya held,

“Not only was the impugned decision of the tribunal to refuse an opportunity to apply for handwriting expert appointment without jurisdiction, the same, particularly at the inchoate stage prior to deciding even the procedure to be followed in conducting the arbitral proceeding, resulted in a gross miscarriage of justice, fit to be interfered under Article 227 of the Constitution of India.” 

In the present petition, petitioner Satyendra Nath Ray assailed the decision of the Arbitral Tribunal which devoid him of an opportunity to move his application for appointment of handwriting expert stating that such directions are beyond the purview of the Arbitral Tribunal.

The court opined in favour of the petitioner stating that such ground taken by the Arbitral Tribunal is categorically negated by Section 26 of the Arbitration and Conciliation Act, 1996 (the Act), which specifically confers the power on the arbitral tribunal to  appoint expert(s) to report to it on specific issues to be determined by the tribunal.

The court held,

“The Tribunal shut out the petitioner at a nascent stage of the arbitral proceeding, even before determination of the procedure to be followed in the arbitral proceeding, from applying for appointment of a handwriting expert on the flimsy ground that such an order was beyond the purview of the Tribunal.”

During an Arbitral Proceedings a disputes was raised regarding the veracity of certain documents and signatures relied on by the parties in the proceedings. Following which the petitioner moved an application before the Arbitral Tribunal for appointment of handwriting expert. The Arbitral Tribunal refused the same on the ground of not having jurisdiction even before determination of the procedure to be followed in the arbitral proceeding.

Aggrieved by the decision of the Arbitral Tribunal, the petitioner sought relief from the High Court.

However, the opposite party raised an objection regarding maintainability of the instant application under Article 227 of the Constitution of India in view of the specific bar envisaged in Section 5, read with Sections 34 and 37 of the Arbitration and Conciliation Act, 1996 Act.

Advocates Mr. Aniruddha Chatterjee, Mr. Rajarshi Dutta, Mr. V.V.V. Sastry & Mr. Nischay Mall appeared for the Petitioner(s).

Advocates Mr. Jishnu Chowdhury, Mr. Abhijit Chowdhury, Mr. Aritra Basu appeared for Respondent(s).

Case title: Satyendra Natu Ray Vs. VCK share & stock broking Pvt Ltd.