Arbitral tribunal can draw sustenance from CPC provisions in interest of justice, even though commercial courts act amendments not mandatorily applicable to arbitration: Calcutta high court

"Calcutta High Court Rules: Arbitral Tribunals May Reference CPC for Justice Interests, Without Mandatory Application of Commercial Courts Act Amendments."

Case Title: Kolkata Municipal Corporation v. Bengal Shelter Housing Development Ltd.

Citation: (2026) ibclaw.in 4553 HC

Coram: Justice Shampa Dutt

The Calcutta High Court has set aside a procedural order passed by a Sole Arbitrator, holding that the chief examination of all witnesses of a party ought to be recorded before cross examination of any of them begins, so that a subsequent witness is not permitted to fill up gaps left by an earlier witness.

The petitioner, respondent in the underlying arbitration, had raised a preliminary objection before the Arbitrator that the claimant should file affidavits of evidence of all its witnesses simultaneously, relying on Order XVIII Rule 4(1A), (1B) and (1C) of the Code of Civil Procedure, 1908, as introduced by the Commercial Courts Act, 2015. It also objected to new documents being introduced through the affidavit of evidence of a witness, which had no foundation in the Statement of Claim, and sought an opportunity to file a fresh statement of admission and denial. The Arbitral Tribunal rejected both objections, holding that any objection regarding documents without foundation in the pleadings could be raised during cross examination and dealt with at the stage of final arguments.

Before the High Court, the petitioner argued that since the claimant's applications under Sections 9 and 11 of the Arbitration and Conciliation Act, 1996 had been filed before the Commercial Division of the High Court, the procedural amendments applicable to the Commercial Division would apply equally to the arbitration proceedings, and relied on Srei Infrastructure Finance Ltd. v. Tuff Drilling Private Limited, (2018) 11 SCC 470. The respondent contended that Section 19 of the Arbitration and Conciliation Act confers procedural autonomy on the Tribunal, that Section 16 of the Commercial Courts Act, 2015 does not amend the Arbitration Act, and that the challenge was in substance an appeal on procedural correctness dressed up as a petition under Article 227.

On maintainability, the Court held that the revision was maintainable since the challenge was to the procedure adopted by the Arbitrator during the proceedings, and not to the existence or validity of the arbitration agreement, following its earlier decision in Pasari Multi Projects Private Limited v. Ahluwalia Contract (India) Limited, and taking into account Deep Industries Limited v. Oil and Natural Gas Corporation Limited, (2020) 15 SCC 706 and Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Limited, (2022) 1 SCC 75.

On merits, the Court referred to Section 19(1) and (4) of the Arbitration and Conciliation Act, which provide that the Tribunal is not bound by the Code of Civil Procedure, and to the Supreme Court's ruling in Srei Infrastructure Finance Ltd., which held that this does not incapacitate the Tribunal from drawing sustenance from provisions of the Code, and that the Tribunal can travel beyond the Code, the only fetter being observance of the principles of natural justice. Considering the nature of the evidence to be led, the Court held that discharge of a witness before the chief examination of the next witness may prejudice a party, and that chief examination of all witnesses ought to be completed before their respective cross examinations take place. The Court also directed that the petitioner's prayer for removal of documents tendered through the affidavit of a witness who was later withdrawn and replaced be reconsidered by the Arbitrator, in the interest of justice.

The civil revision was accordingly allowed, and the order dated April 6, 2026 passed by the Sole Arbitrator was quashed and set aside. The parties were left at liberty to invoke Section 19(2) of the Arbitration and Conciliation Act to agree on procedure, and the Tribunal was asked to give due importance to early disposal of the arbitration.