Calcutta High Court Directs An Arbitral Tribunal To Record Chief Examination Of All Witnesses Before Cross-Examination

The Calcutta High Court has directed an arbitral tribunal to record the chief examination of all witnesses proposed by a claimant before beginning the cross-examination of any of them.

The court held that this was necessary to prevent a later witness from filling gaps in the evidence of an earlier witness and prejudicing the other side.

Justice Shampa Dutt (Paul), setting aside a procedural order passed by the sole arbitrator in a dispute between the Kolkata Municipal Corporation and Bengal Shelter Housing Development Ltd., observed:

“Witness action should therefore take place by taking on record the chief of all witnesses before their respective cross examination takes place to prevent miscarriage of justice.”

The court was hearing a challenge to an April 6, 2026 order passed during the arbitration. The dispute concerned the manner in which Bengal Shelter Housing Development Ltd. was presenting its evidence.

The company had initially filed an affidavit of evidence of one witness, which was later withdrawn with the arbitrator's permission to replace the witness.

A fresh affidavit was subsequently filed by another witness, containing documents that the Corporation claimed had not formed part of the earlier admission and denial exercise. The Corporation raised its objections before cross-examination began and sought removal of the additional documents. It also asked that all affidavits of evidence of the claimant's proposed witnesses be filed before the examination and cross-examination of the witnesses commenced.

The Corporation relied on Order XVIII Rule 4(1A) of the Code of Civil Procedure, which requires the affidavits of evidence of all witnesses proposed to be examined by a party to be filed simultaneously. It argued that this procedure was necessary to prevent a subsequent witness from filling gaps in the evidence of an earlier witness.

The arbitrator rejected the objections. It held that the amended provisions of Order XVIII Rule 4 apply to trials before commercial courts and cannot be mechanically imported into arbitration.

The arbitrator relied on Section 19 of the Arbitration and Conciliation Act, 1996, under which parties may agree on the procedure to be followed by the arbitral tribunal and, in the absence of such agreement, the tribunal may conduct proceedings in the manner it considers appropriate.

The High Court considered the Supreme Court's ruling in Srei Infrastructure Finance Ltd. v. Tuff Drilling Private Ltd., which held that an arbitral tribunal, though not bound by the Code of Civil Procedure, can draw sustenance from its provisions.

The High Court noted that the ruling had “cleared the path” for an arbitrator to go beyond the Code in the interests and ends of justice.

Applying that principle, the court found that the nature of the evidence in the case could prejudice one party if a witness was examined and cross-examined before the chief examination of the next witness.

It held that all the claimant's proposed witnesses should therefore have their chief evidence taken on record before their respective cross-examinations.

The court directed the arbitrator to require the claimant to file the chief evidence of all witnesses it intended to tender. It also directed the arbitrator to consider the Corporation's objection concerning the additional documents.

The court further noted that the parties were free to invoke Section 19(2) of the Arbitration and Conciliation Act and agree on the procedure to avoid further delay and facilitate early disposal. It accordingly allowed the Corporation's challenge and quashed and set aside the arbitrator's April 6, 2026 order.

For Petitioner (Kolkata Municipal Corporation): Senior Advocate Kishor Datta and Advocates Altamash Alim and Sumit Biswas.

For Respondent (Bengal Shelter Housing Development Ltd.): Senior Advocate Suman Kr. Dutt and Advocates Jayati Chowdhury, Rashmi Singhee and Priya Malakar.