In ADRPlexus Medical Services Pvt. Ltd. v. Dr. Vivekandan K.S., the Hon’ble Madras High Court has held that an appeal under Section 37(1) and (2) of the Arbitration and Conciliation Act, 1996 is not maintainable against an arbitral order refusing to refer evidence for expert examination.
The dispute arose out of an agreement dated 23.08.2021 executed between the appellant company and the respondent, a District Psychiatrist based in Salem. The appellant initiated arbitral proceedings seeking a direction to the respondent to pay a sum of ₹3,18,86,880/- as compensation for alleged unilateral breach of the agreement.
During the arbitral proceedings, the appellant sought to rely upon an iPad and the materials contained therein. The device was marked as an exhibit. Thereafter, upon completion of the chief-examination of its witness, the appellant filed an application seeking to refer to the iPad and its contents for expert analysis.
The learned Sole Arbitrator dismissed the application on the ground that the appellant had failed to establish the necessity for expert examination and had not utilised the opportunities available during the evidentiary stage.
Aggrieved thereby, the appellant preferred an appeal under Section 37(1) and (2) of the Arbitration and Conciliation Act, 1996 challenging the interim order passed by the learned Sole Arbitrator.
On behalf of the appellant, it was contended that since the iPad had already been marked as evidence, the refusal to refer the same for expert examination was erroneous and that expert opinion was necessary to establish the contents stored in the device.
Per contra, the respondent contended that the appellant had failed to rely upon the iPad at the appropriate stage, including at the time of filing of the claim petition and during the chief-examination of its witness, and that the application was filed to fill lacunae in the evidence. It was further contended that the appeal was not maintainable under Section 37 of the Act.
The Hon’ble Division Bench, upon consideration of the submissions and material on record, observed as follows:
The appellant had sufficient opportunities during the arbitral proceedings to establish the contents of the iPad but failed to do so.
The application seeking expert examination was filed after completion of the chief-examination of the witness.
The appellant failed to demonstrate the necessity for expert examination.
The affidavit filed in support of the application did not disclose sufficient reasons.
The learned Sole Arbitrator rightly rejected the application.
The Hon’ble Court held that no error apparent on the face of the record or perversity was made out in the impugned order. It was further held that the appeal is not maintainable under Section 37 of the Arbitration and Conciliation Act, 1996.
Accordingly, the appeal was dismissed.
