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Judgment
The Court: The instant application has been filed under Section 27 of the Arbitration & Conciliation Act, 1996. The petitioner is the claimant in an
ongoing arbitration proceedings. The Arbitration proceedings commenced pursuant to a statement of claim filed in November 2012 and is presently
being conducted by a Tribunal of three Arbitrators in Delhi. In the instant application the petitioner has prayed for summons to be issued upon a
witness of the respondent no. 2 and to direct him to present himself for cross-examination through video conferencing. The witness, Mr. L N Bobkov
is presently residing in St. Petersburg, Russia.
There are four parties in the arbitration proceedings. The respondent in the present application is appearing on behalf of the first respondent before the
learned Tribunal and Mr. Bobkov is a witness of the second respondent before the Tribunal. Both the respondents are Russian entities; the first
respondent being the Federal Agency of the Russian Government for said property management.
Mr. Jishnu Chowdhury, Counsel appearing for the petitioner submits that urgent orders are called for since final rejoinder arguments of the claimant
(petitioner before this Court), it has been fixed on 23rd, 24th and 25th May, 2018 and the petitioner will not have an opportunity for any further
evidence once arguments are concluded. Counsel hands over an order dated 12.01.2018 passed by the Tribunal where the petitioner was given leave
to move an application under Section 27 of the Act, for issuing summons and ensuring the appearance of Mr. Bobkov. It appears from the order
passed by the Tribunal that Mr. Bobkov had filed an affidavit of evidence on behalf of the respondent no. 2 before the learned Tribunal and had
agreed to appear for cross-examination at the commencement of proceedings. The order further records that at the relevant point of time, both the
claimant as well as the first respondent had been granted an opportunity of cross-examining Mr. Bobkov by the Tribunal by orders dated 30.8.2017
and 4.9.2017. Subsequently at the time of cross-examination of the witness for the respondent no. 2, Mr. Bobkov was given the option to either appear
before the Tribunal in person or for recording his cross examination by way of video conferencing. It, transpired, however, that Mr. Bobkov became
seriously unwell in November 2017 and became reluctant to give evidence in the arbitration.
Counsel appearing for the petitioner relies on communications dated 12.05.2017 from the Advocates of the petitioners and a notice dated 24.10.2017
issued by the Tribunal on Mr. Bobkov for ensuring his appearance as a witness. In the said notice, it was pointed out by the Tribunal that by an
application dated 21.06.2013, the respondent no. 2 had stated that Mr. Bobkov would appear as its witness in the arbitral proceedings and that both the
claimant and the respondent no. 1 had sought for an opportunity of cross-examining him as a witness. By the said notice, the witness was given an
option to either appear in person or to have his evidence recorded by way of video conferencing from Moscow itself. The aforesaid notice was
responded to by an undated communication by one Alexander Oligovich, who described himself as an authorised representative of Mr. Bobkov and
stated in the said letter that Mr. Bobkov would consider it “an honour to speak on earlier affidavitâ€. It is pointed out in the said letter however that,
Mr. Bobkov subsequently contracted “oncological disease†and was, therefore, unable to participate in the arbitral proceedings on the dates fixed
in the beginning of November 2017. By a further notice issued by the Tribunal to the witness, and after noting the serious health concerns of the
witness, the Tribunal gave Mr. Bobkov the opportunity of having his evidence recorded on commission by way of video conferencing from St.
Petersburg where Mr. Bobkov resides. It appears from the said notice that this mode of taking evidence had also been agreed to by the parties. The
witness was also given the liberty of choosing the next date of hearing before the Tribunal.
Pursuant to the aforesaid notice, the petitioner sent its local counsel to personally serve the summons to the Office of Mr. Bobkov, which the witness
refused to receive on the ground that the messenger was not authorised to deliver the summons. The aforesaid fact is recorded in e-mail dated 4th
December, 2017 sent by the petitioner’s lawyers to the Tribunal. A third notice was sent by the Tribunal to Mr. Bobkov requesting him to inform
the Tribunal as to the date when he would find it convenient to have his evidence recorded. Mr. Bobkov was also informed that the next dates had
been fixed on 10th and 11th January 2018.
Mr. Chowdhury relies upon Section 27 of the 1996 Act by which an application can be made to a Court for assistance in taking evidence and also that
persons failing to attend before the Tribunal or refusing to give their evidence shall be subjected to disadvantages, penalties and punishments by order
of the Court. He also relies on Order V Rule 26A of the Code of Civil Procedure, 1908 dealing with the manner by which summons may be sent to
Officers who are residents of a foreign country. According to Counsel, it is imperative that Mr. Bobkov’s evidence is taken and used in arguments
in the arbitration proceedings. He submits that the evidence is crucial since Mr. Bobkov was a signatory to the Memorandum of Understanding and
had filed his affidavit of evidence as a witness for the respondent no. 2. He also relies on Section 27 (3) of the 1996 Act by which a competent Court
can execute the request made by a party with the approval of the tribunal and order that the evidence may be provided directly to the Arbitral
Tribunal.
Mr. Chowdhury relies on NEPA LTD. VERSUS AKKERMAN INTERNATIONAL AND ANOTHER reported in (2005) 12 SCC 319 on the point
that service on a respondent residing in a foreign country can only be done through the Consulate Embassy of that country through the Ministry of
External Affairs and that the service has to be in accordance with Order V Rule 26A of the CPC. He also relies on an order passed by this Court
whereby service was effected upon a judgement debtor who was lodged in a jail in California, USA in accordance with the procedure under Order V
Rule 26A of the CPC.
Mr. Ratnanko Banerji, Senior Counsel appearing for the respondent no. 1 opposes the application primarily on the ground that the petitioners want to
delay arbitration proceedings by filing the instant application. He points at several documents to show that Mr. Bobkov has serious health issue and is
actually not in a suitable physical condition to participate in the arbitration proceedings. He mentions that there is an interim order against the
petitioners who have been directed to furnish a bank guarantee and thereby the present application has been filed to prolong the arbitration
proceedings. The main objection taken by Counsel, is that a party cannot compel another party to produce its witness when hearing is presently going
on exparte against the second respondent before the Tribunal.
Mr. Banerji submits that the order passed by the Tribunal on 12th January, 2018 permitting the petitioner to file the instant application was only due to
the fact that the learned Tribunal was reluctant to go back on its earlier orders passed in August and September, 2017 by which Mr. Bobkov had been
permitted to be cross-examined by the parties. He relies on a Treaty between the Republic of India and the Russian Federation on Legal Assistance
and Legal Relations concerning civil and commercial matters, which provides inter-alia, that a summons served upon a witness or on an expert,
resident abroad, may not contain any penalties connected with the failure of the summoned person to appear. He submits that by reason of the
aforesaid provision, a witness who is a resident of a foreign country cannot be compelled to appear in proceedings in India and further that the failure
of such witness to appear cannot result in any punitive measures against the witness. According to him, there is no legal provision which can assist the
petitioners in pursuance of the prayers made in the instant application. Counsel, however, submits that recording the evidence of Mr. Bobkov will not
prejudice his client (respondent no.2 before this Court and before the Arbitral Tribunal) and that he would be willing to cross-examine Mr. Bobkov. He
submits that Mr. Bobkov’s presence is being called for at a time when the arbitral proceedings have reached its final stage.
I have considered the submissions of counsel appearing for the parties. It appears from the notices issued by the Tribunal to Mr. Bobkov that the
Tribunal went out of its way to ensure utmost ease and convenience to Mr. Bobkov while taking his evidence. It is true that the witness became
serious unwell in 2017 much after the commencement of the arbitration; but the fact that several opportunities were given to Mr. Bobkov to have his
statements recorded on commission by way of video conferencing in St. Petersburg, and that all arrangements for such were agreed to be provided by
the petitioner, cannot also be ignored. The Tribunal showed remarkable flexibility in giving Mr. Bobkov the option of scheduling the dates for giving
evidence after the surgery, which he was supposed to undergo. In response to the concern showed by the Tribunal, the conduct of Mr. Bobkov is
somewhat unreasonable. He not only sent an undated communication through his authorised representative that he will not be able to participate in the
hearing held in November, 2017 for medical reasons, but also refused to receive the summons sent by the Tribunal in December, 2017.
The fact that Mr. Bobkov is an interested party or is vitally linked with the arbitrary proceedings is not disputed. He has filed his affidavit of evidence
on behalf of the respondent no. 2 and had also communicated his unequivocal intention to be cross-examined in the arbitration proceedings by both the
parties. This Court, therefore, sees no reason why Mr. Bobkov can have any further ground to avoid giving his evidence after December, 2017,
particularly when the Tribunal went out of its way to accommodate Mr. Bobkov in every possible way. The Court is indeed empowered to pass orders
in an application made under sub-section (2) of Section 27 of the 1996 Act to the effect that the evidence of a witness may be provided directly to the
Arbitral Tribunal.
It is also correct that Order V Rule 26A is the only procedure available for issue of summons to defendants residing in a foreign territory and that such
summons can be sent through the concerned Ministry of the Government of India dealing with foreign affairs. The decisions of the Hon’ble
Supreme Court and this Court reinforce the aforesaid.
 The petitioner in the instant application has not asked for any punitive measures against Mr. Bobkov for failure to attend or participate in the
hearing. The only relief asked for is that effective summons be issued upon Mr. Bobkov to present himself for cross-examination through video
conference. I see no difficulty in allowing such prayer and directing that summons be issued to the said witness through the Russian Embassy or the
Russian Consulate through the Ministry of External Affairs and in accordance with the mode of service spelt out under Order V Rule 26A of the
CPC. The only caveat to this is that the petitioners (the claimant before the Arbitral Tribunal) should not ask for any adjournment on the ground of
either such service not being effected on the witness or the witness refusing to give his evidence in pursuance of such summons. The Arbitral Tribunal
is at liberty to continue with its schedule as decided in the combined record of proceeding dated 24th February, 2018. Since the next date of hearing
has been fixed on 23rd, 24th and 25th May, 2018, it would not serve any purpose to call for affidavits in the instant application as the proposed dates
would fall within the Summer Vacation of this Court.
After the order is communicated, counsel appearing for the respondent no.1 prays for an opportunity to cross-examine the witness, Mr. Bobkov, in the
event the witness gives his evidence in the arbitration proceedings. Such prayer is allowed. AP 91 of 2018 is disposed of in terms of the prayer (a) of
the petition.