Section 27 of the Arbitration and Conciliation Act, 1996: Court Assistance in Taking Evidence
Section 27 of the Arbitration and Conciliation Act, 1996 provides a mechanism for an arbitral tribunal, or a party acting with the tribunal's approval, to obtain assistance from a court for taking evidence. It is particularly useful where evidence cannot effectively be secured through the arbitral process alone, such as when attendance of a witness or production of a document requires the coercive process of a court.
What is Section 27 of the Arbitration and Conciliation Act, 1996?
Section 27 enables judicial assistance without transferring the merits of the dispute from the arbitral tribunal to the court. The court assists in securing or recording evidence, while the arbitral tribunal continues to decide the dispute.
Text of Section 27 - Court Assistance in Taking Evidence
27. Court assistance in taking evidence.
(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.
(2) The application shall specify-
(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the evidence to be obtained, in particular,-
(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required;
(ii) the description of any document to be produced or property to be inspected.
(3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.
(4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it.
(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court.
(6) In this section the expression "Processes" includes summonses and commissions for the examination of witnesses and summonses to produce documents.
Official text: Arbitration and Conciliation Act, 1996 - India Code
Who Can Apply for Court Assistance?
Under Section 27(1), the arbitral tribunal may directly apply to the court for assistance in taking evidence. A party to the arbitration may also apply, but only with the approval of the arbitral tribunal.
This requirement preserves the tribunal's control over the evidentiary process and prevents parties from independently invoking court machinery for evidence without the tribunal's involvement.
What Must the Application Contain?
Section 27(2) requires the application to identify the parties and arbitrators, describe the general nature of the claim and relief sought, and state precisely what evidence is required.
Where a witness or expert witness is to be heard, the application should include that person's name and address and identify the subject matter of the required testimony. Where documents or property are involved, the material to be produced or inspected should be described.
Power of the Court under Section 27(3) and 27(4)
The court may act within its legal competence and in accordance with its rules governing the taking of evidence. It may order that the evidence be provided directly to the arbitral tribunal.
While doing so, the court may issue the same kinds of processes to witnesses that it could issue in suits tried before it. This gives the evidentiary request the benefit of judicial process where voluntary cooperation is insufficient.
Failure to Attend, Refusal to Give Evidence and Contempt
Section 27(5) addresses non-compliance. A person who fails to attend in accordance with court process, defaults, refuses to give evidence, or commits contempt toward the arbitral tribunal during arbitral proceedings may, on representation by the tribunal, face consequences comparable to those applicable for similar conduct in a suit before the court.
Meaning of "Processes" under Section 27(6)
Section 27(6) expressly states that the term "Processes" includes:
- summonses for examination of witnesses;
- commissions for examination of witnesses; and
- summonses to produce documents.
When Section 27 May Be Useful
Court assistance may be important where a necessary witness is unwilling to attend voluntarily, where a third party possesses documents relevant to the dispute, where inspection of property is required, or where formal judicial process is needed to secure evidence that the tribunal cannot compel on its own.
Section 27 therefore complements the tribunal's evidentiary powers without converting arbitration into ordinary court litigation.
Relationship with Sections 24, 25 and 26
Section 24 deals with hearings and written proceedings. Section 25 addresses default by a party. Section 26 deals with experts appointed by the arbitral tribunal. Section 27 is distinct because it brings in the court's assistance specifically for taking evidence.
Key Points to Remember
- The arbitral tribunal may apply to the court for assistance in taking evidence.
- A party may apply only with the tribunal's approval.
- The application must identify the evidence sought with sufficient particulars.
- The court may order evidence to be provided directly to the tribunal.
- The court may issue witness processes comparable to those used in civil suits.
- Non-compliance with such process can attract court-imposed consequences.
- "Processes" expressly includes summonses and commissions for witnesses and summonses to produce documents.
Statutory text checked against the current India Code publication of the Arbitration and Conciliation Act, 1996.