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15 April 2021, Thursday

3 years ago

7. Allowing electronic evidence in arbitration without Section 65B affidavit is okay (Delhi High Court)

15 April 2021 | Megha Enterprises & others v M/s Haldirams Snack Pvt. Ltd. | OMP (COMM) 79 of 2021 | Vibhu Bakhru J

A dispute arose out of a sale and purchase transaction. The tribunal found that the petitioner had not paid for the goods purchased and awarded consideration with interest. In its set-aside petition, the petitioner asserted that the claim was barred by limitation, and the tribunal erred in accepting evidence (that too without an affidavit under Section 65 B of the Indian Evidence Act, 1872) that an acknowledgement of the debt due had been made before the limitation expired.

Rejecting the arguments, the Delhi High Court ruled that:

  1. an arbitral tribunal cannot be said to have “grossly erred” if it allows electronic proof without a Section 65B affidavit because (a) per Section 1 of the Indian Evidence Act, it does not apply to proceedings before an arbitrator (ii) no such objection was taken before the arbitral tribunal.
  2. A delay in claim bars the remedy, not the right. The tribunal evaluated the material and awarded what was legitimately due. This approach does not offend morality or public policy as used in Section 34 (2) (b) ACA.
  3. As apparent from paragraph 33 of Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, the set-aside court cannot interfere with an award even if the court may have taken a different view and does not concur with the tribunal’s inference from the evidence led.
  4. The tribunal took a plausible view on Section 18 of the Limitation Act. But, in any case, a mere erroneous application of law does not make the award patently illegal.

Access the judgement here.

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Categories: Applicability of Evidence Act | Application for Setting Aside Arbitral Award | Associate Builders | Effect of Acknowledgement in Writing | Interference with Award | Limitation | Morality | Patent Illegality | Reappreciation of Evidence | Section 34 (2) (b) ACA | Section 34 ACA | Ssangyong

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