1. Heard Ms. Davawala, learned advocate for the petitioner and Mr. Dave, learned advocate for respondent No.1.
2. The petitioner has taken out present petition for below mentioned relief:
"6(b) To issue writ of certiorari or writ order or direction in the nature of certiorari quashing and setting aside the impugned order Dated 28-12-10 passed by the Respondent No.2 herein in the matter of arbitration pertaining to letter of Intent dated 22.12.2004 by and between the petitioner and Respondent No.1"
3. The petitioner has brought under challenge an interim order order dated 28.12.2010 passed by the learned Arbitrator during the pendency of the arbitration proceedings.
4. By the said interim order, passed by learned Arbitrator during, petitioner's application seeking direction to the respondent No.1 to place certain documents on record, has been rejected on the ground that the documents are not relevant or necessary in the proceedings for determining the dispute. The fact that the petition is preferred against interlocutory order passed by the learned Arbitrator, is one of the reasons not to entertain the petition at this stage.
5. The other reason is that in view of subsequent development/event, the said cause of grievance does not survive. It emerges from the record and submissions by the learned counsel for the petitioner that the petitioner is essentially aggrieved by the observations and decision recorded by the learned Arbitrator in paras 6.2, 6.4, 6.5, 6.6 and para 7 of the order dated 28.12.2010. The said paras 6.2, 6.4 to 6.6 and 7.0 read thus:
"6.2 Final bill of HCC with measurements as claimed with Govt. of Gujarat-for Saraswati Bridge approach chainoye 108+723 and 110+080 to 110+520 both LHS and RHS at GSHP-6.
It is observed that the Claimant had not presented his monthly bills for certification to the Respondent. In absence of such bills the Respondent prepared monthly bills on behalf of the claimant and released the payments. The Claimant's entitlement to payments shall be strictly in accordance to the provisions contained in the contract. There is no stipulation in the present work order dated 22.12.2004 which establishes connection in any manner to the contract the Respondent had with Govt. of Gujarat. Hence, there is no ground/reason contractually for the Claimant to demand such data.
6.4 All RA bills prepared by HCC (1 to 16) (application of 04-06-08) As can be seen from statement of claims (SOC page 4 and 5) there are 16 running account bills raised by the Respondent for the work executed by the claimant and payments released. The Tribunal was given to understand that the Claimant was also given a copy of each of the 16 bills along with the payment. The Claimant has not denied the receipt of the same. However, since the RA bills have been prepared and amount released in accordance with the provisions of the work order dated 22.12.2004, the Tribunal considers that the same defines/explains the monies exchanged between the parties to contract and hence relevant to the present case. As such the Tribunal is of the opinion that the same can be called for.
6.5 Details of other works with details of stretches-measurements, payments received by HCC as per their written statement at page 7 (application dated 04-06-08) The dispute in reference has arisen out of works covered under the work order dated 22.12.04. Hence, the dispute will have to be decided necessarily based on terms and conditions of the contract between the parties. Other documents not connected with the present dispute under reference have no relevance and are inadmissible and hence there is no justification for asking to produce such document in terms and conditions of the present contract.
6.6. Final measurements recorded by the Principal Employer i.e. Govt. of Gujarat (application dated 04.06.08) In the aforesaid paragraphs, the subject has been discussed in detail. The contract dated 22.12.04 under reference and also the one (main contract) between the Respondent and the Principal Employer - Govt. of Gujarat are two independent contracts and cannot be linked contractually with each other. No reference of the main contract and/or any clause in it is made anywhere in the present contract dated 22.12.04 and hence there is no justification for production of any document connected with the main contract.
7.0 Decision and order of the Arbitral Tribunal Taking the totality of the circumstances into consideration, reading the pleadings on record, perusing and appreciating the evidence, both oral and documentary on record and considering the oral arguments advanced and submissions made by the learned counsel for the Claimant as well as written summary of the oral arguments advanced by the Respondent, the authorities and judgments cited and reasons aforesaid, the Arbitral tribunal finds that only those documents pertaining to the present contract i.e., the work order dated 22.12.2004, would be relevant and appropriate for production before the present Arbitral Tribunal. Therefore, I, the Sole Arbitrator, hereby make the ruling in respect of the documents to be produced by the Respondent. The Respondent is directed to produce the following documents before the Arbitral Tribunal.
1. Contract agreement between the parties in the form of Work order issued under letter No.SC/100/563/025 dated 22nd December 2004 together with letter of intent issued under letter no. HCC/GSHP-6/SC dated 1.10.2004.
2. Certified copies of RA bills (1 to 16) paid to the Claimant and also 17th and final bill copy as applicable to the work."
6. It emerges from the record of present petition and from the submissions by the learned counsel for the contesting parties and the above-referred observations by the learned Arbitrator that the controversy which is raised at this stage is related to the certain documents inasmuch as the petitioner considers the said documents relevant and necessary and the petitioner desires that the respondent should place them on record. It appears that the petitioner had made request by presenting an application seeking direction from the learned Arbitrator for production of documents mentioned in the application. The request came to be rejected, or rather substantially rejected by the learned Arbitrator. The said rejection is the cause for present petition.
7. However, what is now relevant is the submission made during the hearing of present petition. The learned advocate for the petitioner has submitted that subsequently the petitioner had taken out the proceedings under the Right to Information Act and in response to the said proceedings, the petitioner could get the copies of the relevant documents from the principal employer. Ms. Davawala, learned advocate for the petitioner has also submitted that the petitioner has already placed those documents on record.
8. However, the petitioner apprehends that in view of the order dated 28.12.2010 and particularly in view of the observations in para 7.0 of the said order, the learned Arbitrator may not take the said documents into consideration.
9. The said submission is presumptive and amounts to preempting the proceedings before the learned Arbitrator. Learned advocate for the petitioner has submitted that the apprehension is based on the observation in the impugned order by the learned Arbitrator.
10. Any direction-order cannot be passed - more so at interlocutory stage - on petitioner's presumption and/or apprehension.
11. Any order - direction which may preempt the proceedings and/or any order by Arbitrator cannot be passed.
12. It is needless to state that the observations made in interlocutory stage/interim order are made only for the purpose of deciding the issue raised at the relevant stage and are not made base or premise for subsequent proceedings and/or foundation for final order. Therefore, the apprehension of the petitioner is really misplaced and does not call for any direction or clarification at this stage lest it should affect the proceedings or interest of the parties to the proceedings.
13. The proceedings are pending before the learned Arbitrator. The parties are yet to commence stage of examining the witnesses. Therefore, any interference at this stage is not warranted, more particularly because the petitioner, after having received the relevant documents in proceedings instituted under the provisions of the Right to Information Act, has placed the documents on record. Further proceedings will be undertaken by the learned Arbitrator in accordance with law. The principal grievance for which the petitioner filed present petition, i.e. to seek direction to the respondent No.1 to place on record the documents asked for by the petitioner, does not survive in view of subsequent development, hence the petition does not deserve to be entertained.
14. The petition accordingly stands disposed of.
(K.M.
Thaker, J.) Bharat* Top