The answer to your Q.1-Yes by signing the fresh vakalatnaama and to Q.2 Not advisable at this stage because Hon'ble High Court will not give you any relief.
Arbitration procedures
I am an NRI living abroad. I have a matter currently pending before an Arbitration Tribunal with a sole Arbitrator in Chennai, involving a high value property that I had leased to the other side. Due to my frequent absence from India, I engaged a senior advocate to handle the matter. He in turn delegated the matter to his junior who I believe is corrupt and may have compromised my case to the other side. Initially, I approached the High Court to appoint an Arbitrator from the court's panel of approved Arbitrators because I did not trust the other side's nominees and they did not accept my nominees. However, I later found that the junior who attended the hearing when the Arbitrator was appointed merely consented to the other side's nomination of the current Arbitrator. I feel that the Arbitrator is prejudicial against me. During my cross examination, he refused to grant me suitable dates and insisted that I come all the way from abroad even to the point of jeopardizing my work abroad. However, he has been very lenient with the other side. Also, my junior while cross examining the other side witness did not ask some questions regarding some important issues that the other side has admitted in their pleadings. When I asked him about this deficiency, he said that there is no need to ask since the other side has already admitted in their pleadings. But I feel that it is not a clear admission which could have been obtained through proper questioning or follow up questioning. I feel that the other side could evade the admission during arguments. At this point, the cross examination has completed. All cross examination questions and answers have been documented in written form. The Arbitrator has set dates for the submission of final arguments from both sides. I have 2 main questions for the the distinguished advocates on this panel: 1. Assuming that I change my advocate, is it necessary and possible to cross examine the other side witness again to get the other side to admit clearly what they have admitted in the pleadings? In their pleadings, the other side admitted to demolishing a corner building on my property but in the cross examination they denied demolishing the main building. I was hoping to get them to admit in the cross examination that they at least demolished the corner building which is still a violation of the lease agreement. What would be the procedure to do so? 2. Since I feel that the Arbitrator has been prejudicial against me, I fear that his final order may not be fair. Can I approach the High Court to change the Arbitrator? So far, he has only conducted cross examinations which have been recorded. A new Arbitrator could take a look at the pleadings, the evidence and the answers to the cross examinations and issue an impartial order.
Asked 5 years ago in Civil Law
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12 Answers
Dear Client,
Changing advocate is no reason to permit re cross examination. Still you can file application under Order 18 Rule 17 for recall and examine witness on valid ground and whatever facts are admitted in pleading need not to cross examined nor party can turn hostile once stated in pleadings. Demolition already admitted, so the the need to cross.
You can challenge his appointment on the ground of impartiality to conduct the case. He can either continue with the Arbitration proceeding or order for new arbitrator. You can also approach the court for appointment of new arbitrator.
New arbitrator will complete the arbitral proceedings by taking over the proceedings from its current stage.
You can approach the court for appointment of new arbitrator. Even after passing of the award, you can challenge such award before the court.
1. Yes, it is high time that you change your advocate and engage some one who take professional interest in your case and handle it effectively. Once some one is engaged a fresh advocate he can apply for recalling a witness to put questions which were missed out.
2. If there is palpable proof his biasness or incompetence in the matter, you can apply before the high court for removal of the present arbitrator. Since trial has started you should file such petition for removal of arbitrator at the earliest.
1. Change of counsel is not a ground to re conduct the cross examination. You can use other grounds for recall of witnesses cross examination again, as various imperative questions which should have been put were not asked which are very much essential for fair adjudication of the case.
2.You can file an application under section 12 of the arbitration act which is reproduced below:
12. Grounds for challenge.—
(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.
(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.
(3) An arbitrator may be challenged only if—
(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
(b) he does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
once specific admission is made in pleadings that they demolished part of building it is sufficient admission to protect your interests
2) not necessary to change your lawyer
3) if award has been passed against you then you can make application to set aside award . your counsel has agreed to appointment of arbitrator Hc would be reluctant to change arbitrator
No, the change of advocate is not in the usual course of things going to have a bearing on what is firmly in the past. Why would you be displeased as far as the other side’s volte face is concerned? A material contradiction in their pleadings and cross-examination should enure to your benefit.
Coming to your other question, I would like to point you to the Arbitration and Conciliation Act. The relevant provisions are contained in sections 12 and 13 of the said Act. You can challenge an arbitrator only if--
“(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
(b) he does not possess the qualifications agreed to by the parties.”
For example: If you come to realize that the arbitrator has failed to make a statutorily mandatory dislcloure—let’s say as to his participation in other arbitration proceedings involving one of the parties—it can safely be said that circumstances exist that give rise to the type of doubts referred to above.
The arbitrator has to be challenged within fifteen days of the appointment of the arbitrator or from the date the party seeking to so challenge the arbitrator first became aware of the circumstances or doubts referred to above.
The challenge has to be made before the arbitral tribunal, which in this case means the sole arbitrator himself.
The arbitrator can withdraw from the proceedings or proceed to adjudicate upon the challenge. In case the challenge is rejected, he can proceed to adjudicate over the main dispute and make an award.
In the eventuality that an award is made against you, it will be open to you to take as one of the grounds of challenge in proceedings under Section 34 of the Act the partisanship or ineligibility of the arbitrator. I have done this on behalf of a client in a Section 34 proceedings. In the said case, it was I who found out that the arbitrator had failed to make certain mandatory disclosures during the course of my pre-litigation research.
I hope that answers your question. Thank you for your query and have a nice day!
1. No on change of advocate you wont be awarded opportunity again to cross examine since the cross examination is now concluded. Sir since they have admitted in pleadings itself then that is concurrent proof of if in case cross examination such question was denied it could have caused prejudiced to you so if any statement is accepted in the pleadings then it can be present in the arguments.
2. Since at this point of the time i dont think when pleadings are over only arguments are left changing arbitrator would be a good idea. In case the arbitrator is biased and strict proof of same are there, the award made by such arbitrator can be challenged and can be set aside by the court,
1. The admitted facts need not be emphasised ion the cross examination because that is a record before the court and they cannot deny that.
Changing your lawyer is your choice but this cannot be a reason because he is right in his opinion that the admitted facts need not be examined once again.
2. Your guesses and suspicions may not be entertained by high court. If you have any specific allegation agaisnt the arbitrator then you may approach court with substantial evidence for your allegations.
Thank you all for the valuable answers. I have a follow up question: When I leased my valuable property to the other side, we submitted the lease deed for registration to the local sub registrar having jurisdiction over the property. We also paid the required stamp duty to the local sub registrar in the form of stamp papers used to prepare the lease deed. But the sub registrar kept the lease deed in a pending status to clarify some issue before completing the registration. Subsequently, a dispute arose between me and the other side and I terminated the lease. I also did not follow up with the Sub Registrar to complete the registration. The other side is now stating that the entire lease deed is void and invalid and none of the provisions of the lease deed are enforceable because the lease deed is still in a pending status with the sub registrar. Are the provisions of the lease deed unenforceable because the registration is still pending? When I obtained a certified copy of the pending document from the Registrar to submit as evidence in this arbitration proceeding, I was advised by the Registrar that the lease deed has the same protection as a fully registered document because the documented was not rejected and the correct stamp duty was paid. Are there any prior judgments that address this issue?
Asked 5 years ago
You can obtain certified copy of pending document from sub registrar office
2) you have been correctly advised by sub registrar
Yes if there.is a clause in lease deed that it shall come in force on registration when a day for enforcing lease deed is written then irrespective of registration it is valid.
No doubt the lease deed is yet to get the status of registered document, however since you have already paid the stamp duty and fulfilled the requirement that has to be complied for registration formalities, mere keeping it pending by the registrar for some petty reasons cannot be said that you have not taken steps for registering the lease deed.
You can very well proceed with the certified copy of the lease deed in the arbitration proceedings.