BEFORE THE ARBITRAL TRIBUNAL COMPRISING OF
JUSTICE MS. INDU MALHOTRA
(FORMER JUDGE, SUPREME COURT OF INDIA)
SOLE ARBITRATOR
IN THE MATTER OF ARBITRATION BETWEEN
M/S KRISHNA BUILDESTATES LIMITED
...Claimant
Versus
M/S TRIUNE GLOBAL SOLUTION LIMITED
...Respondent
For Claimant:
Mr. Vaibhav Gaggar, Advocate
Mr. Vidur Mohan, Advocate
Mr. Prerak Khurana, Advocate
Mr. Shreedhar Gaggar, Advocate
Mr. Ashit Kapoor, Advocate
Mr. Rakesh Bahl,
Director Mr. Rahul Bahl,
Director
Mr. Vivek Kaura, Chief Administrative Officer
Mr. Rajat Asija, Legal Head
For Respondent:
Mr. H.S Chandhoke, Advocate
Mr. Shiv Sapra, Advocate
Ms. Ruchika Darira,
Advocate Mr. Binoy Jacob,
Director Ms. Nausheen
Jacob, Director
Mr. Abhishek Bhargava, Corporate Manager
PROCEDURAL ORDER 1 DATED 12.07.2023
(Held via Video Conferencing)
Declaration under Section 12 of the Arbitration & Conclllatlon Act, 1996
1. Pursuant to Section 12 of the Arbitration & Conciliation Act, 1996 ("Arbitration
Act') the Sole Arbitrator has filed her Declaration that there are no circumstances
with respect to:
a. the existence of either direct or indirect, past or present relationship, or
interest, in any of the parties, or in relation to the subject matter
in dispute, whether financial, business, professional or other kind,
which is likely to give rise to justifiable doubts as to her
independence or impartiality; and
b. which are likely to affect her ability to devote sufficient time to
the arbitration, as specified under Section 29A of the Act.
2. Both the parties as well as their Counsels, submitted that they have no
objection to the appointment of the Sole Arbitrator to conduct the present
proceedings, and adjudicate the disputes between the parties.
3. With the consent of the Parties, it is decided that the Place {Seat) of arbitration
shall be New Delhi.
The hearings will ordinarily be held through virtual mode, except when in
consultation with the Parties, the Tribunal decides to hold physical meetings,
hearings or evidence, at such venues as considered to be convienent.
4. The Language of the arbitral proceedings shall be English.
5. Counsel for both the parties have given their assurance of rendering full
co operation, to enable the Tribunal to conclude the arbitration
proceedings preferably within twelve (12) months from the date of completion
of pleadings in terms of Section 23(4) of the Arbitration Act, or within eighteen
(18) months from that date, subject to joint consent for extension of time in terms
of Section 29A(3) of the Arbitration Act.
PROCEDURAL TIME-TABLE:
6. With the consent of parties, the following schedule is fixed for completion of
the pleadings, as well as admission/denial of documents, having regard
to the statutory time limit prescribed by Section 29A of the Arbitration Act:
S.NO. STEPS TO BE TAKEN DATE
1. Statement of Claim ("SOC") alongwith the 09.08.2023
supporting documents to be filed by the
Claimant
2. Statement of Defence ("SOD") alongwith 04.10.2023
supporting documents to be filed by the
Respondents· and Counter-Claim if anv.
3. Rejoinder to the Soc alongwith supporting 15.11.2023
documents to be filed by the Claimant and
Reolv to Counter Claim
4. Rejoinder to Reply to Counter Claim 27.12.2023
5. Affidavit of Admission and Denial of Documents 11.01.2024
to be filed by the Claimants and the Respondent
in the format prescribed under the Commercial
Courts Act 2015
6. In consultation with the Parties, Draft Points 13.01.2024
of Determination will be made in terms of At 10:30 a.m.
the issues raised in the SOC and SOD. A
hearing will be convened through video- (Video
conferencing. The parties will file their list of Conferencing)
witnesses. The
further time-table for Cross-examination of
witnesses will be fixed.
7. All pleadings (duly dated signed and verified) shall be filed inA4 size page
printed on both sides and the accompanying documents authenticated as 'true
copies' by the authorized representative of the party (with list/index
arranged and indexed in chronological order and serially page
numbered) shall be filed directly with the members of the Arbitral Tribunal
after serving copy on the other side as well as the learned counsel
appearing in the matter. Any vernacular document filed by the Parties must
be accompanied by an English Translation.
8. Each volume filed by the Claimant from time to time shall be serially
numbered as C-1, C-2, C-3 etc. Similarly, each volume filed by the
Respondent from time to time shall be serially numbered as R-1, R-2, R-3
etc. The volumes will be provided in hard copies. Additionally, all documents
shall be provided in soft copy in fully searchable (OMR Scanned) and
bookmarked pdf format in a pen drive or by FTP site to the members of the
Arbitral Tribunal and the opposite party to enable ease of access.
9• All pleadings shall contain, in full detail, the facts in chronological order,
and submissions on law, on which the Party concerned relies on, denies or
admits and shall be accompanied by copies of all essential documents which
establish the facts or support the contentions.
10. Additional documents or Additional Pleadings, if any, may be filed, only with
the leave of the Tribunal.
11. After completion of pleadings and filing of documents and theiradmission/denial,
marking of exhibits should be carried out by the parties in their
respective
chambers. On completion of this exercise, the list of exhibits shall be conveyed
to the Tribunal.
12. The Admission / Denial of the documents by Affidavits shall be in the
form prescribed under The Commercial Courts Act, 2015. It is further made
clear that in case a party fails to file affidavit of admission/denial of documents
filed by the other party within the time provided, it may be presumed that it has
no objection to the said documents.
13. Any application/communication by any party to the Arbitral Tribunal shall
be made only after serving a copy thereof to the other side, as well as
to the Advocates appearing for the parties. The parties shall also
exchange their pleadings and/or file applications in soft copy through e-mail.
EVIDENCE OF WITNESSES
14. All witness statements shall be made by sworn statements by way of
affidavit{s), which shall be treated as Examination-in-Chief.
15. All the witness/es who submit their evidence affidavits, must be made
available for cross-examination by the other side.
16. Each witness statement shall contain the following:
a. The name and address of the witness, his or her relationship to any of the
parties {past and present, if any) and a description of his or her
qualifications;
b. Full and detailed description of the facts, and the source of the
witness' information as to those facts, sufficient to serve as that witness'
evidence in the matter in dispute;
c. An affirmation of the truth of the statement;
d. The signature of the witness with date;
e. The evidence statemenVs shall specifically identify the documents relied .
upon. If the evidence statement refers to any document which is not
already produced, a copy of such document shall be produced with the
evidence statement; and
f. If any fresh document is so produced with the witness statement of anyparty,
the other side will have an opportunity to produce documents in response,
along with additional statement of its witnesses.
17. It is directed that for recording of evidence, the following procedure will be
adopted:
a. The practice of putting the respective cases of parties to the witnesses in the
form of suggestions is dispensed with;
b. Cross-examination, if any, would be recorded in question/answer form;
c. Any statements, averments by a witness with regard to the interpretation
of the contract in his affidavit of evidence will be of no
consequence. No questions are required to be put to witnesses to
merely confirm the contents of a document;
d. No question shall be put with regard to the interpretation of any
documents, including contract, because that will be done by the Tribunal after
hearing the counsel/representatives of the parties; and
e. The Tribunal shall follow the rule of best evidence. No cross-
examination would be permitted on admitted documents.
18. Two weeks before the final hearing commences, the parties shall file a
common Convenience Compilation of documents on which they inten.d to rely
upon during final arguments. The parties shall file their opening submissions
along with the Convenience Compilation.
FEES AND EXPENSES OF THE ARBITRATORS
19. The Fee Schedule is fixed by DIAC as provided in the DIAC
(AdministrativeCosts & Arbitrator's Fees) Rules, 2018. Reference may be made
to email sent by the DIAC to the Parties dated 11.07.2023.
20. Any communication made to the Counsel shall be deemed to be made to
the concerned party.
21. The Procedural Orders and I or Minutes of Meetings will be sent to the parties
and their Advocates by email. For the said purpose, the email IOs and
phone numbers of the parties and their respective Advocates are noted below:
For the Claimant and its Advocates:
s Name Designation Mobile Mail id
No
1. Mr. Vaibhav Advocate vaibhav@vaibhavgaggar.com
Gaaaar
2. Mr. Vidur Mohan Advocate 9818545997 vidur@gaggargartners.com
3. Mr. Advocate 9811513798 grerak@gaggarnartners.com
Prerak
Khurana
4. Mr. Shreedhar Advocate 8879236495 shreedhar@gaggargartners.com
Gaaaar
5. Mr. Ashit Kapoor Advocate 9810200942 ashit@gaggargartners.com
6. Mr. Rakesh Bahl Director 9810012498 rakesh.bahl@kbe.co.in
7. Mr. Rahul Bahl Director 9810210044 rahul.bahl@kbe.co.in
8. Mr. Vivek Kaura Chief 9818629132 vivek.kaura@kbe.co.in
Administrative
Officer (CAO)
9. Mr. Rajat Asija Legal Head 7011908279 rajat.aseeja@kbe.co.in
For the Respondent and its Advocates:
s Name Designation Mobile Mail Id
No
1. Mr. H.S Chandhoke Advocate 9810226229 bobby.chandhoke@dsklegal.co
(Director) - m
(Director)-
(Corporate
Manaaer) •
2. Mr. Shiv Sapra Advocate 9818577228 shiv.sapra@dsklegal.com
3. Ms. Ruchika Darira Advocate 9971949292 ruchika.darira@dsklegal.com
4. Mr. Binoy Jacob Director - jacob@triune.co.in
5. Ms. Nausheen Director - nausheen.jacob@triune.co.in
Jacob
6. Mr. Abhishek Corporate - Abhishek.Bhargav@triune.co.in
BharQava Manaaer
22. All Orders will be signed by the Sole Arbitrator.
Justice lndu
New Delhi Malhotra Former Judge, Supreme
12 July Court of India
2023 Sole Arbitrator
Appendix- I
Procedure for Examination of Witnesses
through Video-Conference
The examination of witnesses through video conferencing would be subject to the
following:
1. All the participants in the hearing shall make available their cell/mobile
phone numbers so as to ensure communications in case there is a
disruption in connectivity of the video conference.
2. The camera of the witness shall be arranged in such a manner so as to enable
visibility of the surroundings of the witness.
3. The witness should be clearly visible throughout the examination and will not be
permitted to use features like virtual backgrounds. The Tribunal, when
necessary, can request the witness to direct the camera around the room before
the commencement, or atany time during the testimony, to satisfy itself that
there is nobody present in the room who may coach or prompt the witness.
4. The witness should not have any cell/mobile phone with him/her but, the witness
should be able to access it, if directed/permittedby the Tribunal.
5. The witness may have available with him/her and before him/her, by way of
unmarked hardcopy or soft copy, such documents as are already available
on the record of the Tribunal.
6. Before proceeding with the examination, the witness must confirm if she / he is
alone in the room from where she / he is testifying and in case she / he is
not alone, the witness must affirm that s/he is not receiving any direction
or assistance for the testimony.
7. At no point during the examination, must the witness be prompted by or receive
any input from the party, or the counsel, or any other person, except if permitted
by the Tribunal for the purposes of IT assistance.
8. Any advocate or representative of the parties, subject to previous intimation and
giving of all particulars such as name, designation and phone number, shall
be permitted to have access to the place from where the witness is testifying
and such person may remain present while the testimony of the witness is
being recorded.
9. Prior to the hearing, physical copies of documents to be used for the witness
examination should, in the first instance, be made available to the witness, the
counsel whose witness is being examined and the Tribunal and the said copies
of documents must be properly marked and paginated.
10. If physical copies cannot be made available, the parties may use the screen
sharing feature or some other document sharing platform for placing the
same before the witness, the counsel and the Tribunal during the
questioning.
11. The testimonies of witnesses shall be recorded by a typist whose screen would
be shared with the Tribunal, counsel for the parties and the witness concerned.
Other witnesses who are yet to be examined may not be permitted to witness
the proceedings or see the screen shared by the typist.
12. The Tribunal shall obtain the signature of the person being examined on the
transcript once the examination is concluded or in respect of each day, in
case there are multiple days through which the witness examination is
continued. The signed transcript or transcripts, as the case may be, shall form
part of the record of the arbitral proceedings..The signature on the
transcript(s) shall be obtained and authentication thereof shall be done in the
following manner:
a. The soft copy of the transcript shall be sent via email to the Tribunal, the
counsel for the parties and the witness;
b. The witness shall print out the same (or the counsel for the concerned
party shall provide a printout to the witness);
c. The printed transcript shall be signed by the witness;
d. The signed transcript shall be scanned in PDF format and the scanned
copy shall be emailed to the Tribunal;
e. The physical signed transcript shall, either by speed-post/courier or by
special messenger, be delivered to the Sole Arbitrator, who shall then
sign the same;
f. Thereafter, the signed transcript (signed by the witness and the Sole
Arbitrator) shall be scanned and the scanned copies shall be emailed to
the counsel for the parties by the tribunal. The original signed transcript
shall be retained by the Sole Arbitrator as part of the arbitral record.
13. An audio-visual recording of the examination of the witness may also be
preserved by the Tribunal, if so, directed by it.
