Delhi High Court
Osa Vendita Pvt. Ltd vs Bausch And Lomb India Pvt. Ltd on 23 April, 2026
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd APRIL, 2026
IN THE MATTER OF:
+ O.M.P. (COMM) 336/2022 & I.A. 12732/2022, I.A. 12733/2022,
I.A. 12736/2022, I.A. 20742/2022
OSA VENDITA PVT. LTD. .....Petitioner
Through: Mr. Abhay Chitravanshi with Mr.
Raghav Awasthi, Advocates.
versus
BAUSCH AND LOMB INDIA PVT. LTD. .....Respondent
Through: Ms. Mukti Chaudhry, Advocate.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The present Petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the „Act‟) has been filed
by the Petitioner for setting aside the Impugned Award dated 27.09.2021
passed by the Sole Arbitrator whereby the Arbitrator has dismissed the claim
of the Petitioner for loss of profit along with interest thereon as well as the
cost of litigation.
2. The Petitioner, OSA Vendita Pvt. Ltd. carries on the business as a C &
F agent (Clearing and Forwarding agent) and works as a distributor under
the name and style of OSA Vendita Pvt. Ltd. The Petitioner Company was
initiated as a partnership in the name of Om Sai Agencies, but was later
incorporated into a Company in the year 2004.
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RAHUL SINGH
26.04.2026 18:34 O.M.P. (COMM) 336/2022 Page 1 of 27
3. The Respondent, Bausch & Lomb Eyecare (India) Pvt. Ltd. is
engaged in the business of manufacture and sale of eye care products
including but not limited to lenses. It carries on such business from its office
at Royd Street, Kolkata. The Respondent also has its registered office at 303,
DLF South Court, A-1, Saket, New Delhi – 110017.
4. Shorn of unnecessary details, the facts leading to the filing of the
present Petition are as follows:
i. In 2003, the Respondent approached the Petitioner to act as the
distributor of its eye care products in Kolkata. After reaching a
mutual understanding, the Petitioner started to lift the stocks from
the Respondent at invoice value and sold it to the Retailers at a
profit of 8%. It is stated that it was mutually decided between the
parties that the Petitioner would not require a sales team and that
the work of sales and promotion would be done by the Respondent
itself.
ii. On 24.09.2003, the Respondent entered into a distributorship
agreement with the Petitioner which appointed it as a non-
exclusive distributor to supply and distribute the products of the
Respondent to the customers within the territory of Kolkata
(hereinafter referred to as ‘Agreement’). The Agreement
stipulated that the Petitioner would earn 4-8% profit on the sale of
the goods procured from the Respondent.
iii. It is stated that during the period from March 2003 to 24.09.2003,
that is, before the Petitioner had entered into the Agreement, the
Respondent called upon the Petitioner to increase its investment to
Rs. 30 lakhs, being the price of 45 day’s stock, on the basis ofSignature Not Verified
RAHUL SINGH26.04.2026 18:34 O.M.P. (COMM) 336/2022 Page 2 of 27
projected sales of Rs. 20 lakhs per month. It is further stated that
the Petitioner made such an investment on the clear representation
made by the Respondent that it would ensure sales of Rs. 20 lakhs
per month in the event the Petitioner invests the said amount.
iv. The Respondent vide letter dated 20.10.2003 requested the
Petitioner to increase its investment by a further Rs. 10 lakhs to
enable the Respondent to meet its plans and targets.
v. The Respondent sent a letter dated 15.12.2003 to the Petitioner
recording its satisfaction with the work of the Petitioner. The said
letter further conveyed that the Respondent was planning to
increase the market size of the Petitioner and for that, the
Petitioner was asked to increase the investment in the
Respondent’s stock to Rs. 60 lakhs.
vi. The Petitioner in order to meet the above-mentioned demands of
the Respondent for the increase in the investment, requested the
Allahabad Bank for an enhancement of its cash credit limit for
providing the Petitioner with enhanced working capital for the
distributorship business of the Petitioner. It is stated that these
demands were met by the Bank and the cash credit limit was
increased to Rs. 70 lakhs.
vii. It is stated that the Respondent kept demanding increased
investments from the Petitioner, however, the stock that was being
procured in lieu of these investments was not liquidated which
resulted in financial distress to the Petitioner Company.
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RAHUL SINGH
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viii. It is stated that the Petitioner had to further increase the cash
credit limit from Rs. 70 lacs to Rs. 1.10 Crores in order to repay
the loan amount.
ix. It is stated that the Respondent further asked the Petitioner to
increase its contribution in the business to the tune of Rs. 4.5
Crores. However, since a lot of inventory was still unsold, the
Petitioner did not accede to these demands. It is stated that
communications were exchanged between the parties wherein the
Petitioner demanded that its earlier outstanding amount be cleared
as the inventory was piling up and payments were not coming
forth.
x. It is stated that the Respondent partially cleared these dues,
however, on 04.08.2006, the Respondent conveyed to the
Petitioner that all dues till 31.03.2006 have been cleared. It is
stated that the Petitioner wrote to the Respondent seeking payment
of its outstanding dues but no payments were made to the
Petitioner.
xi. On 17.09.2007, the Petitioner invoked the arbitration clause and
issued a notice to the Respondent. It is stated that after 3 rounds of
litigation it was finally decided that the seat of arbitration should
be Delhi. The first hearing before the Arbitrator took place on
17.12.2018.
xii. On 27.09.2021, the Sole Arbitrator passed the Impugned Award
whereby he rejected the claims of the Petitioner. The said
Impugned Award is being assailed by the Petitioner by way of
filing the present Petition under Section 34 of the Act.
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RAHUL SINGH
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5. The case of the Petitioner before the Tribunal was that the Petitioner
acted as a non-exclusive distributing agent for the Respondent in Kolkata. It
is stated that the Petitioner had contractual assurance from the Respondent
guaranteeing provision of sales by identification of buyers while also
obligating corresponding increase in the investment on the part of the
Petitioner. However, the Respondent failed to fulfil this commitment in
breach of the Contract, rendering the investments made by the Petitioner
unprofitable and in a loss.
6. It is the case of the Petitioner that the evidence of CW-3 was the most
crucial and material evidence for corroborating Ex. CW-1/K, which gives
details of the investments made by the Petitioner in the Respondent’s
products making the bedrock of the Petitioner’s case in arbitration
proceedings. But the Tribunal did not permit CW-3 from giving evidence as
the attempt to include CW-3 was belated.
7. Learned Counsel for the Petitioner states that the denial of permission
to present CW-3 as a witness along with accompanying documents ought to
have been allowed, as the Tribunal had found that there were various
deficiencies in Ex. CW-1/K. Further, in paragraph 45 of the award the
Tribunal remarked on the failure on the part of the Petitioner to produce
their accountant and ledger books to support the entries in Ex. CW-1/K. The
Learned Counsel states that the Tribunal in the award also drew an adverse
inference against the Petitioner for non-production of ledgers/book of
accounts, without considering that it was the Tribunal itself that had not
permitted CW-3 to adduce evidence along with relevant documents which
was to corroborate the entries in Ex. CW-1/K.
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8. It is the case of the Petitioner that the procedure adopted by the
Tribunal is contrary to the principle of Party Autonomy and is violative of
Article 14 of the Constitution of India.
9. The Learned Counsel for the Petitioner submits that the Tribunal in an
ad-hoc arbitration could not have adopted the procedure given in Civil
Procedure Code and the Indian Evidence Act without passing a declarative
order notifying the parties about the applicable procedure.
10. The Learned Counsel for the Petitioner states that the absence of any
declaration or order being made by the Arbitrator apprising the parties of the
applicable procedure is violative to the principles of natural justice.
11. He further states that the Arbitrator’s unpredictable conduct, lacking
prior disclosure of the procedural rules to be employed, undermines Party
Autonomy which is contrary to the intent of the Arbitration Act.
12. In substance, the learned Counsel for the Petitioner has raised the
aforesaid objections under Section 34(2)(b)(ii) of the Act, challenging the
Impugned Award on the ground that it is in conflict with the public policy of
India, particularly the fundamental policy of Indian law. Additionally, the
Petitioner has invoked Section 34(2)(a)(iii) of the Act, alleging violation of
party autonomy on account of the Arbitrator’s failure to inform the parties of
the procedure to be followed in the arbitral proceedings.
13. The Learned Counsel for the Petitioner has placed reliance on
Glencore International AG vs. Dalmia Cement (Bharat), 2017 SCC OnLine
Del 8932; PSA Sical vs. Board of Trustees, 2021 SCC OnLine SC 508; Oil
& Natural Gas Commission Ltd. vs. New India Civil Erectors Pvt. Ltd.,
1996 SCC OnLine Bom 338.
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14. Per contra, learned Counsel for the Respondent submits that the
Arbitrator has rightly held that no assurance was ever given by the
Respondent regarding assured sale of products in the event the Petitioner
increased its investment in the Respondent’s stock. It is contended that, in
the absence of any such assurance, the failure of sale of inventory cannot, by
any stretch, be construed as a contractual breach on the part of the
Respondent. Consequently, no claim on account of business loss arising
from such unsold inventory, infrastructural investments, etc, is maintainable.
15. He further submits that the issues relating to any assurance,
contractual breach, or modification of the Agreement have not been
challenged in the present Petition. Accordingly, the findings in the Award on
these aspects have become final, insofar as they hold that there was no
contractual breach or alleged assurance.
16. The Counsel for the Respondent states that the first hearing of the
arbitral proceedings was held on 17.12.2018 and the Arbitrator fixed the
schedule for conducting the proceedings, which the parties had agreed at
Paragraph 9 of the said Order.
17. It is the case of the Respondent that the Statement of Claim was filed
by the Petitioner on 15.01.2019 along with a chart being Annexure C-23
giving calculation of alleged losses on account of return on investments
without supporting documents. On 11.02.2019, the parties were further
given time to file additional documents. The said Annexure C-23 was denied
by the Respondent in its admission-denial, stating that the same was a
manufactured chart.
18. The Counsel for the Respondent states that the onus to prove these
alleged losses was on the Petitioner. Adequate time was given to the parties
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RAHUL SINGH
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to file their list of witnesses and time was further given on 24.04.2019 to the
Petitioner to file affidavit of the witnesses before 30.06.2019. It is stated that
the Petitioner failed to adduce affidavit in evidence and the matter was
further posed on 30.07.2019. The Petitioner on 30.07.2019 again stated that
they were not able to locate an expert witness for project finance and
inventory investment.
19. The Arbitrator vide Order dated 30.07.2019 observed that this was
held to be an inadequate explanation and there was no reason for the
Petitioner to delay filing evidence in his own case wherein the Petitioner
was very well aware of the nature of evidence when the Statement of Claim
was filed.
20. It is stated by the Respondent that the evidence of the Petitioner was
concluded on 17.08.2019. The Respondent then filed their affidavit of
evidence on 09.09.2019. The Petitioner then filed an application on
17.09.2019 after conclusion of their evidence and after filing of
Respondent’s Affidavit in evidence stating the grounds for production of
documents at a belated stage.
21. The Arbitrator vide Order dated 05.11.2019 rejected the application
filed by the Petitioner while recording that full opportunity was granted to
the Petitioner to file their documents and to lead evidence. It also stated that
no cogent reason has been provided by the Petitioner qua the said
application.
22. It is submitted by the Respondent that it is the Petitioner who had
delayed the filing of the documents for reasons attributable to them and thus
they cannot take it as a ground to challenge the Impugned Award. The
Application to adduce documents at a later stage filed by the Petitioner was
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only dismissed by the Arbitrator after due consideration vide a detailed
Order dated 05.11.2019.
23. He further states that the view taken by the Arbitrator is a plausible
view and no inference on the specified grounds is warranted.
24. The Counsel for the Respondent places his reliance on ONGC Petro
Additions Ltd. vs. Tecnimont S.P.A. & Anr., 2019 SCC OnLine Del 8976,
Polyflor Limited vs. Sh. A.N. Goenka & Ors., 2016 SCC OnLine Del
2333, Mukesh Gulati vs. Suraj Prakash Chauhan &Ors., 2015 SCC OnLine
Del 13403 to substantiate his contentions.
25. Heard the Counsels for the parties and perused the material on record.
26. The Petitioner has taken two primary grounds; first, that no prejudice
would have been caused to the Respondent by permitting CW-3 to adduce
evidence and to prove the documents, as they were in support of an existing
pleading and not building a new case. Second, the procedure adopted by the
Arbitrator without apprising the parties through a declarative order was
contrary to party autonomy and violative of Article 14 of the Indian
Constitution. The Petitioner, by way of these objections, has cumulatively
challenged the Impugned Award being in contravention of public policy and
fundamental policy of Indian law.
27. The first contention of the Petitioner pertains to the rejection of the
application seeking to adduce additional evidence, namely the testimony of
proposed CW-3 along with supporting documents. A perusal of the record
reveals that the Arbitral Tribunal had, at multiple stages, granted sufficient
opportunity to the Petitioner to file its evidence, including affidavits and
supporting documents. Despite such opportunities, the Petitioner failed to
produce the said evidence within the stipulated timelines. The application
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for bringing additional evidence was admittedly filed after the closure of the
Petitioner’s evidence and subsequent to the Respondent filing its affidavit in
evidence when the case was listed for cross examination of Respondent’s
witness.
28. The Arbitral Tribunal, by a reasoned order dated 05.11.2019, rejected
the said application on the ground of inordinate delay and absence of any
cogent justification for such delay. The Arbitrator noted that these
documents were throughout in possession of the Petitioner and therefore the
only reason being complex nature of the matter to produce the document at
such belated stage was inadequate.
29. This Court finds that the said view taken by the Arbitrator is a
plausible and reasonable view based on the procedural history of the case. It
is well settled that an arbitral tribunal is empowered to regulate its own
procedure, and such procedural orders, unless shown to be in contravention
to public policy or resulting in grave injustice, do not warrant interference
under Section 34 of the Act.
30. The contention of the Petitioner that the additional evidence would
not have caused any prejudice to the Respondent is equally devoid of merit
and deserves to be rejected outright. The Tribunal, upon a considered
evaluation of the material on record, has specifically noted the absence of
crucial corroborative evidence, including books of accounts and the
testimony of relevant witnesses. The inferences so drawn fall squarely
within the exclusive domain of appreciation of evidence by the Tribunal and
cannot, by any stretch, be recast as a violation of the principles of natural
justice so as to invite interference by this Court.
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RAHUL SINGH
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31. It is also impermissible for the Petitioner to arrogate to itself the
determination of what does or does not constitute prejudice to the opposing
party. Such an assessment lies solely within the province of the learned
Arbitrator. The Petitioner’s attempt to dictate this aspect is wholly misplaced
and reflects a clear overreach, which cannot be permitted.
32. The second limb of the Petitioner’s argument relates to the alleged
violation of party autonomy and Article 14 of the Constitution on account of
the procedure adopted by the Arbitral Tribunal. This contention is also
devoid of merit. Section 19 of the Act clearly provides that an arbitral
tribunal shall not be bound by the Code of Civil Procedure, 1908 or the
Indian Evidence Act, 1872, and is free to determine its own procedure.
Section 19 of the Act is reproduced as under:
“19. Determination of rules of procedure.–
(1) The arbitral tribunal shall not be bound by the
Code of Civil Procedure, 1908 (5 of 1908) or the
Indian Evidence Act, 1872 (1 of 1872).
(2) Subject to this Part, the parties are free to agree on
the procedure to be followed by the arbitral tribunal in
conducting its proceedings.
(3) Failing any agreement referred to in sub-section
(2), the arbitral tribunal may, subject to this Part,
conduct the proceedings in the manner it considers
appropriate.
(4) The power of the arbitral tribunal under sub-
section (3) includes the power to determine the
admissibility, relevance, materiality and weight of any
evidence.”
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RAHUL SINGH
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33. Moreover, the contention of the Petitioner that ad-hoc arbitration
stands on a different footing from institutional arbitration is wholly
misconceived and devoid of merit. Such an argument is plainly
unsustainable in law. All arbitral proceedings falling within the ambit of the
Act are equally governed by its provisions, irrespective of whether they are
conducted on an ad-hoc basis or under the aegis of an institutional
framework.
34. The statutory position is unequivocal. Section 2(1)(a) of the Act
expressly defines ‘arbitration’ to include any arbitration, whether or not
administered by a permanent arbitral institution. In light of this clear
mandate, the Petitioner’s attempt to draw an artificial distinction is nothing
but a futile exercise, betraying a fundamental misunderstanding of the
statutory scheme. Such a plea, therefore, deserves to be outrightly rejected.
Section 2(1)(a) of the Act is reproduced as under:
“2.(1)(a) “arbitration” means any arbitration whether
or not administered by permanent arbitral institution;”
35. In the present case, the record clearly reflects that the procedural
framework, including strict timelines for the filing of pleadings and
evidence, was settled at the very inception of the proceedings with the
unequivocal consent of both parties. It is wholly untenable for the Petitioner
to now assail the procedure merely because the Tribunal adopted principles
broadly akin to those embodied in the CPC or the Evidence Act; such
adoption, by no stretch, renders the proceedings arbitrary or violative of
Article 14.
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26.04.2026 18:34 O.M.P. (COMM) 336/2022 Page 12 of 27
36. A Co-ordinate Bench of this Court in Polyflor Limited vs. Sh. A.N.
Goenka&Ors., 2016 SCC OnLine Del 2333, has held as under:
“3. The learned Joint Registrar in his order takes note
of the fact that the original suit was filed in the year
2004; the documents sought to be produced were
neither filed alongwith the plaint, nor at the stage of
admission/denial of documents, nor even at the stage of
framing of issues on 02.12.2013; PW-1 is under cross
examination and had been substantially cross
examined when the application was moved on
27.01.2016. The learned Joint Registrar has observed
that vague and non convincing reasons have been
given by the plaintiff for not filing the documents
earlier, and unjustifiable reason has been given as to
why, when the documents were in the domain and
control of the plaintiff, the same were not filed at the
appropriate stage, or even at the stage of framing of
issues.
xxx
18. The progress of the suit cannot be interdicted on
account of the blatantly casual approach of the
plaintiff. The plaintiff has not given any justifiable and
acceptable explanation for not filing the said
documents at the earlier stage of the proceedings. If
the submissions of the plaintiff were to be accepted, it
would mean that in every case, a party should be
permitted to lead in evidence documents not earlier
filed and relied upon at any stage of the proceedings.
xxx
24. In Gold Rock World Trade Ltd. (supra), a similar
application under Order VII Rule 14 had been moved
before the Court for production of additional
documents and for filing an additional affidavit. TheSignature Not Verified
RAHUL SINGH26.04.2026 18:34 O.M.P. (COMM) 336/2022 Page 13 of 27
stage in the said suit was more or less the same,
namely that the plaintiff had led its evidence in the
affirmative and closed the same. The application had
been filed prior to the defendants’ witnesses filing their
affidavits by way of evidence towards examination-in-
chief. The learned Single Judge rejected the
application of the plaintiff. While doing so, the learned
Single Judge observed:
“3. … … … A plain reading of Order 7 Rule 14(3)
makes it clear that a document which ought to be
produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or
annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the
hearing of the suit. The learned counsel for the
plaintiff submits that leave of the Court ought to be
granted to the plaintiff for producing the additional
documents referred to in the application under
Order 7 Rule 14 and as also for calling the witness
for producing the documents mentioned in the other
application. The learned counsel for the plaintiff
referred to the decision of the Supreme Court in the
case of Salem Advocate Bar Association, Tamil
Nadu v. Union of India : (2005) 6 SCC 344. With
reference to paragraph 13 thereof, the learned
counsel submitted that the Court may permit leading
of such evidence even at a later stage subject to any
terms that may be imposed upon by the Court which
may be just and proper.
4. I have heard counsel for the parties. The Supreme
Court decision in Salem Advocate Bar Association
(supra) was in the context of additional evidence. BySignature Not Verified
RAHUL SINGH26.04.2026 18:34 O.M.P. (COMM) 336/2022 Page 14 of 27
virtue of the 1976 amendment, Rule 17-A had been
introduced in Order 18. The said Rule 17-A granted
discretion to the Court to permit production of
evidence not previously known or which could not
be produced despite due diligence. Rule 17-A of
Order 18 was deleted by the Code of Civil
Procedure (Amendment) Act, 1999 which took effect
on 1.7.2002. While considering the effect of this
deletion the Supreme Court observed : –
“13. In Salem Advocate Bar Assn. (I) v. Union of
India, (2003) 1 SCC 49, it has been clarified that on
deletion of Order 18 Rule 17-A which provided for
leading of additional evidence, the law existing
before the introduction of the amendment i.e. 1-7-
2002, would stand restored. The Rule was deleted by
Amendment Act of 2002. Even before insertion of
Order 18 Rule 17-A, the court had inbuilt power to
permit parties to produce evidence not known to
them earlier or which could not be produced in spite
of due diligence. Order 18 Rule 17-A did not create
any new right but only clarified the position.
Therefore, deletion of Order 18 Rule 17-A does not
disentitle production of evidence at a later stage. On
a party satisfying the court that after exercise of due
diligence that evidence was not within his knowledge
or could not be produced at the time the party was
leading evidence, the court may permit leading of
such evidence at a later stage on such terms as may
appear to be just.”
Thus, the Supreme Court held that the insertion of
Rule 17-A was only clarificatory of the in-built
power of the Court to permit parties to produce
evidence not known to them earlier or which could
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26.04.2026 18:34 O.M.P. (COMM) 336/2022 Page 15 of 27
not be produced in spite of due diligence. The
learned counsel for the plaintiff sought to invoke this
in-built power of the court even in respect of Order
7 Rule 14(3) which relates to production of
documents at a belated stage. There would be no
difficulty in holding that the in-built power referred
to in the said Supreme Court decision could also be
invoked when the question of granting leave arises
in the context of Rule 14(3) of Order 7.
Consequently, before leave of the Court can be
granted for receiving documents in evidence at a
belated stage, the party seeking to produce the
documents must satisfy the Court that the said
documents were earlier not within the party’s
knowledge or could not be produced at the
appropriate time in spite of due diligence. It has
been submitted by the learned counsel for the
defendant that the documents pertain to a settlement
between the plaintiff and a foreign party
(COGETEX). The settlement was arrived at, as per
the statement recorded in the crossexamination of
PW1, on 7.10.1996. However, there is not a whisper
of this statement even in the replication which was
filed on 11.9.1997. In fact, the affidavit by way of
evidence was filed by the plaintiff in the year 2003
and even in that affidavit, there is no reference to the
documents which are now sought to be introduced.
In my view, these circumstances clearly show that
the conditions necessary before leave of the Court
can be granted have not been satisfied. It cannot be
said that the plaintiff was not aware of the
documents earlier, or that the same could not be
produced in spite of due diligence on the part of the
plaintiff. All the material now sought to be
introduced, was well within the knowledge of the
plaintiff at least in the year 2003. As the plaintiff
was not diligent enough at that point of time, this
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Court is left with no alternative but to reject its
request.”
(emphasis supplied)
25. In my view, the aforesaid judgment squarely
applies to the facts of the present case. It cannot be
said by the plaintiffs that they were not aware of the
existence of their own audited annual reports from
1997 onwards till 2013. Since the said annual reports
are of the plaintiffs themselves, and even according to
the plaintiffs, the plaintiffs are obliged to maintain the
records for a period of seven years under the law
applicable to the plaintiff company, it cannot be said
that in spite of due diligence, the plaintiffs could not
have produced the said documents at the time of filing
of the suit in respect of the period 1997 to 2004, and
for the period thereafter till the time of framing of
issues in 2013. Not only these documents, or even
copies, therefore, were not filed earlier, they were not
even referred to or relied upon either in the pleadings,
or in any other document filed by the plaintiff.”
37. Further, another Co-ordinate Bench of this Court in M/s Fortuna Skill
Management Pvt. Ltd. vs. M/s Jaina Marketing and Associates, 2024 SCC
OnLine Del 1972, has held has under:
“20. As noted above, much turns upon the decision of
the Tribunal dated 10.10.2022, dismissing the
petitioner’s application to place evidence on record.
For reasons which follow, I am of the view that there is
no perversity or unreasonableness in the view taken by
the Tribunal, so as to warrant interference under
Section 34 of the Act.
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21. Factually, it is undisputed that the application was
made only on 03.09.2022, more than three years after
the petitioner had filed its statement of defence,
counter claim and documents. In the interregnum,
affidavits of evidence had been filed by the witnesses
and their oral evidence had also concluded. Learned
counsel for the respondent [claimant before the
Tribunal] had completed his final arguments and the
matter was at the stage of arguments of learned
counsel for the petitioner herein. There was no
suggestion in the application that the documents
sought to be placed were not within the knowledge and
possession of the petitioner at any stage. In the
application, in fact, the petitioner only contended that
it had placed a limited number of challans, due to the
volume of evidence [approximately 30,000 pages]. The
petitioner’s contentions in the application were as
follows:
“7. That the Respondent, during the course of
arguments on 09.08.2022, demonstrated that the
Claimant had recorded lesser value (and in some
cases higher value) of the spare parts returned as
compared to the original value of the delivery
challan. For this purpose, Respondent referred to
the five delivery challans which were already on
record of this Hon’ble Tribunal as a part of the
SOD, besides producing a copy of one more delivery
challan, which was not on record. On realizing that
the sixth delivery challan was not on the record, the
Hon’ble Tribunal directed the Claimant to respond
to the issue raised by the Respondent in respect of
the five delivery challans which were already on
record. At that stage it was brought to the notice of
the Hon’ble Tribunal by the Respondent that as the
delivery challan numbers were appearing in the
documents filed by both the sides, the existence of
the delivery challans, as appearing in the
comparative statement filed by the Respondent,
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could never be a subject matter of dispute.
Therefore, nothing prevents this Hon’ble Tribunal
from examining the issue highlighted by the
Respondent in its comparative statement, in its
entirety.
8. That during the course of arguments, it was also
enquired by the Hon’ble Tribunal as to whether
physical copies of the delivery challans appearing
in CRM data were available and the number of
such delivery challans. In this respect it was
explained by the Respondent that since there were
very large number of delivery challans running in
more than 30,000 pages, the Respondent had only
filed 5 sample delivery challans along with its SOD
in order to avoid the burdening of the record of this
Hon’ble Tribunal and that the comparative
analysis filed by the Respondent was enough to
establish Respondent’s contention.
9. That, however, considering the query which fell
from the Hon’ble Tribunal during the hearing on
09.08.2022, and in order to avoid non-
consideration of Respondent’s submissions due to
non-availability of the copies of the remaining
delivery challans, Respondent is filing the present
application seeking permission of this Hon’ble
Tribunal to file on record some more delivery
challans which will establish that the Claimant has
acted in the most unlawful manner and as per its
own whims and fancies. It may not be out of place to
submit that M/s Jaina Marketing & Associates being
the Claimant in the present arbitration, the burden
of proof was on them, and it was them who ought to
have filed the delivery challans rather than relying
on unilaterally prepared consignment delivery notes
and the alleged ledgers. However, they avoided to
do so for the obvious reasons.
xxxx xxxx xxxx
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11. That, the abovementioned delivery challans are
relevant, besides being admissible being bilateral
and indisputable documents prepared
contemporaneously by the parties to record return of
the spare parts. Claimant cannot have any objection
to production of the delivery challans in as much as
Claimant’s own documents, refer to these very
delivery challans and seek to rely upon them. Hence,
no prejudice to would be caused to anybody and the
said delivery challans will only throw more light on
facts already on record.”
22. It is clear from above that the application was
made at the stage of arguments, only in order to meet
queries raised by the Tribunal with regard to
insufficiency of evidence led by the petitioner.
xxx
24. Keeping these factors in mind, the Tribunal cannot
be faulted for disallowing an application which, as it
noted, would have taken the case back to the stage of
trial and examination of witnesses. Mr. Singh’s
reliance upon the judgment of the Supreme Court in
K.K. Velusamy does not persuade me to the contrary
conclusion. In that case, the Supreme Court was
concerned with a civil suit. The Trial Court had
dismissed applications filed by the defendant at the
stage of arguments for reopening of the evidence, for
further cross-examination of the plaintiff and one other
witness. The High Court had dismissed a revision
petition against this order, but the Supreme Court
reversed, holding that the Court has the power under
Section 151 of the Civil Procedure Code, 1908, to
permit additional evidence to be led if it would clarify
the evidence on record, or assist the Court in rendering
justice. However, the Court emphasised that such
power was to be exercised sparingly, and in cases
where the evidence sought to be produced has come
into existence later, or could not have been filed earlier
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or the non-production was for valid and sufficient
reasons. The application must otherwise be disallowed.
It has been expressly stated that an application made
to cover up the negligence and lacunae, or in a
situation where the party had an opportunity to
produce the evidence earlier, should be rejected with
heavy costs. These observations support the finding of
the Tribunal, that the application in the present case
deserves to be dismissed.” (emphasis in original)
38. The importance of efficiency and expediency in the conduct of
arbitral proceedings has been emphasised time and again by the Apex Court.
The Apex Court in Union of India vs. U.P. State Bridge Corpn. Ltd., (2015)
2 SCC 52, has observed that the Act is based on four foundational pillars
and the first pillar is a fair, speedy, and inexpensive trial by the arbitral
tribunal. The relevant portion of the said judgment has been reproduced
hereunder:
“16. First and paramount principle of the first pillar is
“fair, speedy and inexpensive trial by an Arbitral
Tribunal”. Unnecessary delay or expense would
frustrate the very purpose of arbitration. Interestingly,
the second principle which is recognised in the Act is
the party autonomy in the choice of procedure. This
means that if a particular procedure is prescribed in
the arbitration agreement which the parties have
agreed to, that has to be generally resorted to. It is
because of this reason, as a normal practice, the court
will insist the parties to adhere to the procedure to
which they have agreed upon. This would apply even
while making the appointment of substitute arbitrator
and the general rule is that such an appointment of a
substitute arbitrator should also be done in accordance
with the provisions of the original agreement
applicable to the appointment of the arbitrator at the
initial stage. [See Yashwith Constructions (P) Ltd. v.
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Simplex Concrete Piles India Ltd. [(2006) 6 SCC 204]
] However, this principle of party autonomy in the
choice of procedure has been deviated from in those
cases where one of the parties have committed default
by not acting in accordance with the procedure
prescribed. Many such instances where this course of
action is taken and the Court appoint the arbitrator
when the persona designata has failed to act, are taken
note of in paras 6 and 7 of Tripple Engg. Works [North
Eastern Railway v. Tripple Engg. Works, (2014) 9 SCC
288 : (2014) 5 SCC (Civ) 30] . We are conscious of the
fact that these were the cases where appointment of the
independent arbitrator made by the Court in exercise
of powers under Section 11 of account of “default
procedure”. We are, in the present case, concerned
with the constitution of substitute Arbitral Tribunal
where earlier Arbitral Tribunal has failed to perform.
However, the above principle of default procedure is
extended by this Court in such cases as well as is clear
from the judgment in Singh Builders Syndicate [Union
of India v. Singh Builders Syndicate, (2009) 4 SCC 523
: (2009) 2 SCC (Civ) 246] .”
39. The conduct of the Petitioner in delaying the filing of material
documents, which are essential for the adjudication of the dispute, and
within the knowledge and possession of the Petitioner, is nothing but a
blatant disregard of the agreed procedural discipline. Such dilatory tactics,
dictated by convenience and whim, cannot be countenanced, particularly
when they run in direct contravention of the timelines consciously agreed
upon. Permitting such conduct would strike at the very foundation of
arbitration, which is premised on expeditious and efficient resolution of
disputes, and cannot be allowed to be undermined in this manner.
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40. The Petitioner has failed to demonstrate any element of surprise,
prejudice, or unequal treatment meted out to it during the proceedings. On
the contrary, the material on record reflects that adequate and repeated
opportunities were afforded to the Petitioner. Even otherwise, the Petitioner
could have taken an objection against the procedure adopted by the
Arbitrator during the arbitration proceedings. The material on record does
not provide any hint towards such objection being taken by the Petitioner
during the currency of the arbitration proceedings.
41. The contention of the Petitioner that the Respondent committed a
contractual breach by failing to cover the Petitioner for its alleged business
losses is misconceived.
42. Clause 10.3 of the Agreement clearly provides that once the products
are sold to the Petitioner, the Respondent is under no obligation to take them
back, even in cases of expiry or defect. When this clause is read in
conjunction with Clause 2.5, which embodies the arm’s length nature of the
arrangement, it unequivocally reinforces the Tribunal’s finding that the
Respondent cannot be held liable for any business losses incurred by the
Petitioner. Clause 10.3 of the Agreement is reproduced hereunder:
“10.3 No products will be taken back by BLEIPL even
though they are expired or defective.”
43. In this backdrop, the Petitioner’s attempt to fasten liability upon the
Respondent for indemnification of its business losses is not stipulated in the
Agreement. The Respondent cannot be held liable for losses incurred by the
Petitioner in the conduct of its own business operations.
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44. The case of the Petitioner that the Agreement executed between the
parties stipulated that Respondent was primarily responsible for the sale and
marketing of its product. It is the case of the Petitioner that it had the limited
role of investing in the products of the Respondent, maintaining adequate
stock as stipulated in the Agreement, and then be remunerated by way of
trade discount/profits ranging from 4-8% on the sale of these goods. The
case of the Petitioner being that in pursuance of the aforesaid arrangement
between the parties, when the Respondent kept demanding increased
investment from the Petitioner, it was upon the Respondent that these
products bought by the Petitioner were sold as per assurances provided by
the Respondent from time to time.
45. It is further pertinent to note that the findings of the Arbitral Tribunal,
namely, the absence of any contractual assurance or breach on the part of the
Respondent have not been substantively assailed before this Court. Once the
Tribunal has returned a finding that there was no contractual breach, the
claim for loss of profits necessarily fails. The Tribunal in paragraph 42 and
43 of the Impugned Award has clearly perused all the letters exchanged
between the parties and has returned the finding that there were no such
assurances made by the Respondent to the Petitioner. Such findings, being
findings of fact based on appreciation of evidence, are not amenable to
interference under Section 34 unless shown to be patently illegal or
perverse, which is not the case here.
46. The Apex Court has time and again emphasised on the limited scope
of interference by Courts in arbitration. The Apex Court in Ramesh Kumar
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Jain vs. Bharat Aluminium Company Limited, 2025 SCC OnLine SC 2857,
has held has under:
“28. The bare perusal of section 34 mandates a
narrow lens of supervisory jurisdiction to set aside the
arbitral award strictly on the grounds and parameters
enumerated in sub-section (2) & (3) thereof. The
interference is permitted where the award is found to
be in contravention to public policy of India; is
contrary to the fundamental policy of Indian Law; or
offends the most basic notions of morality or justice.
Hence, a plain and purposive reading of the section 34
makes it abundantly clear that the scope of interference
by a judicial body is extremely narrow. It is a settled
proposition of law as has been constantly observed by
this court and we reiterate, the courts exercising
jurisdiction under section 34 do not sit in appeal over
the arbitral award hence they are not expected to
examine the legality, reasonableness or correctness of
findings on facts or law unless they come under any of
grounds mandated in the said provision. In ONGC
Limited. v. Saw Pipes Limited (2003) 5 SCC 705, this
court held that an award can be set aside under
Section 34 on the following grounds:”(a)
contravention of fundamental policy of Indian law; or
(b) the interest of India; or (c) justice or morality, or
(d) in addition, if it is patently illegal.”
47. The Apex Court in Consolidated Construction Consortium Limited
vs. Software Technology Parks of India, (2025) 7 SCC 757, has reiterated
the limited scope of interference under Section 34 of the Act. The relevant
portion has been reproduced hereunder:
“46. Scope of Section 34 of the 1996 Act is now well
crystallised by a plethora of judgments of this Court.
Section 34 is not in the nature of an appellate
provision. It provides for setting aside an arbitral
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award that too only on very limited grounds i.e. as
those contained in sub-sections (2) and (2-A) of Section
34. It is the only remedy for setting aside an arbitral
award. An arbitral award is not liable to be interfered
with only on the ground that the award is illegal or is
erroneous in law which would require re-appraisal of
the evidence adduced before the Arbitral Tribunal. If
two views are possible, there is no scope for the court
to re-appraise the evidence and to take the view other
than the one taken by the arbitrator. The view taken by
the Arbitral Tribunal is ordinarily to be accepted and
allowed to prevail. Thus, the scope of interference in
arbitral matters is only confined to the extent
envisaged under Section 34 of the Act. The court
exercising powers under Section 34 has per force to
limit its jurisdiction within the four corners of Section
34. It cannot travel beyond Section 34. Thus,
proceedings under Section 34 are summary in nature
and not like a full-fledged civil suit or a civil appeal.
The award as such cannot be touched unless it is
contrary to the substantive provisions of law or Section
34 of the 1996 Act or the terms of the agreement.”
48. This Court is of the view that the conclusion reached by the Arbitral
Tribunal constitutes a reasonable and plausible interpretation based on the
material available on record. The Tribunal, while rendering the Impugned
Award, has passed a well-reasoned order, clearly setting out the grounds for
disregarding the document submitted by the Petitioner, which was merely a
self-prepared chart unsupported by invoices, books of accounts, ledgers, or
other credible evidence. The Petitioner also failed to substantiate the said
chart through the testimony of a Chartered Accountant at the appropriate
stage.
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49. Further, by its Order dated 05.11.2019, the Tribunal declined the
Petitioner’s attempt to introduce supporting documents and the testimony of
a Chartered Accountant at a belated stage. Such rejection cannot be faulted,
as the Arbitrator duly applied his mind while determining the admissibility
of the additional material.
50. The submissions alleging violation of Article 14 and party autonomy
are without merit, as in the absence of an agreed procedure between the
parties, the Arbitrator is empowered to determine the procedure for
conducting the arbitral proceedings, as was done in the present case. These
objections do not constitute valid grounds under Sections 34(2)(a)(iii) or
34(2)(b)(ii) of the Act, as sought to be urged by the Petitioner.
51. Accordingly, this Court holds that the Impugned Award is consistent
with the Public Policy of Indian Law, including the fundamental policy
thereof. In view of the aforesaid, this Court does not find any ground to
interfere with the Impugned Award dated 27.09.2021 passed by the learned
Sole Arbitrator.
52. Accordingly, the present Petition is dismissed. There shall be no order
as to costs.
SUBRAMONIUM PRASAD, J
APRIL 23, 2026
hsk/MT
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