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Adducing Evidence Before The Arbitral Tribunal – Analysis Of The Procedural Requirements – Civil Law


“Witnesses are the eyes and ears of
justice”.
~ Bentham

Introduction

Under Commercial matters, considering the heavy reliance upon
documents for establishing its case, it becomes incumbent for the
parties to prove the veracity of such documents. The stage at which
the parties need to prove such documents and facts are followed
immediately after completion of the pleadings i.e., with the filing
of the evidence by way of affidavit. Though, neither the Civil
Procedure Code, 1908 (“CPC”) nor the
Indian Evidence Act, 1872 (“Evidence
Act”
) are per se applicable to arbitration,
the arbitral proceedings are largely pari materia to the
civil trial conducted under the CPC and as a rule of general
practice, principles laid down in the CPC, as well as Evidence Act,
are followed in arbitration and the provisions of CPC can be
applied if they are not inconsistent with the provisions of
Arbitration and Conciliation Act, 1996 (“Arbitration
and Conciliation Act”
).1 Hence, production
of evidence by way of affidavit forms an inevitable part of the
arbitration.

Since the subject matter of arbitration involves a commercial
dispute, the parties tend to rely on voluminous documentary
evidence, and it becomes essential to prove such documents by way
of producing witnesses on affidavit. In addition, the evidentiary
stage i.e., filing of the witness statement also assumes importance
since it provides the last opportunity as a matter of right to
produce any document that the parties seek to rely upon to
strengthen their case.

Relevant Provisions of Filing an Evidence on Affidavit

Since neither the CPC nor the Evidence Act are per se
applicable to arbitration2, the said witness statement
is filed under Section 19 of the Arbitration and Conciliation Act.
Section 19(4) of the Arbitration and Conciliation Act empowers the
arbitral tribunal “to determine the admissibility,
relevance, materiality and weight of any evidence”.

Nevertheless, while presenting the witness affidavit, as a rule
of general practice, principles laid down in the CPC as well as
Evidence Act are followed. In the CPC, the stage of evidence is
dealt with under Section 30 of the CPC read with Order 18 Rule 4 of
the CPC which mandates the examination-in-chief of a witness on
affidavit. Furthermore, Order 19 of the CPC lays down the procedure
required for admission of an affidavit before the court. Order 19
of the CPC inter alia provides for the following
conditions for an affidavit to be admissible before a court –

  1. Affidavits shall be confined to such facts as the deponent is
    able of his own knowledge to prove;

  2. Affidavits should follow a chronological sequence of the
    relevant dates and events;

  3. Affidavits should not be the reproduction of the
    pleadings;

  4. Each para of the Affidavit so far as possible, be supported by
    a document.

Since evidence adduced by way of affidavits cannot be relied
upon until the witness is available for
cross-examination,3 the Evidence Act also attains equal
importance in an arbitration proceeding.

Understanding the Practical Approach for Presenting Evidence on
Affidavit

It is a settled principle of law that the burden of proof lies
upon a party only to the extent that its submissions (be it factual
or documentary) are disputed by the other party. No proof is
required for the admitted facts or documents. It is therefore the
presentation of evidence is immediately preceded by the
admission/denial of documents of opposite parties. Order 11 Rule 4
of the CPC mandates the parties to set out explicitly whether such
party is admitting or denying the –

  1. correctness of contents of a document;

  2. existence of a document;

  3. execution of a document;

  4. issuance or receipt of a document;

  5. custody of a document.

It is only based on the statement of admission/denial of the
documents, the other party can prepare and present the evidence of
the witness on affidavit. The party filing such evidence thereafter
prepares a table of such denied documents and segregates it on the
basis of its denial.

For instance, if the existence of any document is denied, the
same can be proved by any facts which suggest that the other party
themselves has referred to such documents in its pleadings or
correspondences. Similarly, in order to strengthen one’s case
and to proof the veracity of such denied documents, it is important
to proof the existence of the document and the contents of the
document that proves one’s case which has been denied by the
other in the admission/denial of the documents.

Moreover, sub-rule 3 of Rule 4 Order 11 of CPC states that there
cannot be a mere denial of the documents. Parties must provide a
reason for the denial of a specific document. Especially, when the
party denies a receipt but admits the content, it is a settled law
that the party must provide for the reasoning of the same. However,
if such documents are public documents or any other documents the
party adducing the evidence by way of the affidavit should proof to
the best of their knowledge as to the authenticity of those
documents along with the sources where it was procured from.

Similarly, for proving the disputed facts, the practical
approach is to separate the facts which have been disputed by the
opposite party from those which have been admitted. It becomes
important for the party preparing the evidence to distinguish the
admitted facts from the disputed facts and keep its focus upon
corroborating those facts by way of affidavits that have been
disputed by the other party.

Furthermore, as stated above, as per the requirements of Order
19 Rule 6 of the CPC, the evidence should state the facts in the
chronological order bringing together the list of dates following
the events subsequently pointing out the claims and the documents
that have been relied upon by the parties to establish their
case.

Conclusion

Thus, it can be safely concluded that in the case of arbitration
even though there is no statutory requirement for the parties to
follow the rules of the Evidence Act or Civil Procedure Code,
Section 19 of the Arbitration and Conciliation Act empowers the
Arbitral Tribunal to call for evidence by way of affidavit. Also,
the rules to produce evidence by affidavit laid down in the CPC
i.e., under Order 18, Rule 4 , and Order 19 of the CPC are not
inconsistency with any of the provisions of the Arbitration and
Conciliation Act and therefore is applicable even for evidence
produced before the Arbitral Tribunal.

Footnotes

1 Syko Bag Industries vs. ICDS Limited, 2007 (4) KCCRSN
240.

2 §1, Indian Evidence Act, 1872; §19,
Arbitration and Conciliation Act, 1996.

3 Ayaaubkhan Noorkhan Pathan vs. the State of
Maharashtra, (2013) 4 SCC 465.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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