"Witnesses are the eyes and ears of justice". ~ Bentham
Under Commercial matters, considering the heavy reliance upon documents for establishing its case, it becomes incumbent for the parties to prove the veracity of such documents. The stage at which the parties need to prove such documents and facts are followed immediately after completion of the pleadings i.e., with the filing of the evidence by way of affidavit. Though, neither the Civil Procedure Code, 1908 ("CPC") nor the Indian Evidence Act, 1872 ("Evidence Act") are per se applicable to arbitration, the arbitral proceedings are largely pari materia to the civil trial conducted under the CPC and as a rule of general practice, principles laid down in the CPC, as well as Evidence Act, are followed in arbitration and the provisions of CPC can be applied if they are not inconsistent with the provisions of Arbitration and Conciliation Act, 1996 ("Arbitration and Conciliation Act").1 Hence, production of evidence by way of affidavit forms an inevitable part of the arbitration.
Since the subject matter of arbitration involves a commercial dispute, the parties tend to rely on voluminous documentary evidence, and it becomes essential to prove such documents by way of producing witnesses on affidavit. In addition, the evidentiary stage i.e., filing of the witness statement also assumes importance since it provides the last opportunity as a matter of right to produce any document that the parties seek to rely upon to strengthen their case.
Relevant Provisions of Filing an Evidence on Affidavit
Since neither the CPC nor the Evidence Act are per se applicable to arbitration2, the said witness statement is filed under Section 19 of the Arbitration and Conciliation Act. Section 19(4) of the Arbitration and Conciliation Act empowers the arbitral tribunal "to determine the admissibility, relevance, materiality and weight of any evidence".
Nevertheless, while presenting the witness affidavit, as a rule of general practice, principles laid down in the CPC as well as Evidence Act are followed. In the CPC, the stage of evidence is dealt with under Section 30 of the CPC read with Order 18 Rule 4 of the CPC which mandates the examination-in-chief of a witness on affidavit. Furthermore, Order 19 of the CPC lays down the procedure required for admission of an affidavit before the court. Order 19 of the CPC inter alia provides for the following conditions for an affidavit to be admissible before a court -
- Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove;
- Affidavits should follow a chronological sequence of the relevant dates and events;
- Affidavits should not be the reproduction of the pleadings;
- Each para of the Affidavit so far as possible, be supported by a document.
Since evidence adduced by way of affidavits cannot be relied upon until the witness is available for cross-examination,3 the Evidence Act also attains equal importance in an arbitration proceeding.
Understanding the Practical Approach for Presenting Evidence on Affidavit
It is a settled principle of law that the burden of proof lies upon a party only to the extent that its submissions (be it factual or documentary) are disputed by the other party. No proof is required for the admitted facts or documents. It is therefore the presentation of evidence is immediately preceded by the admission/denial of documents of opposite parties. Order 11 Rule 4 of the CPC mandates the parties to set out explicitly whether such party is admitting or denying the -
- correctness of contents of a document;
- existence of a document;
- execution of a document;
- issuance or receipt of a document;
- custody of a document.
It is only based on the statement of admission/denial of the documents, the other party can prepare and present the evidence of the witness on affidavit. The party filing such evidence thereafter prepares a table of such denied documents and segregates it on the basis of its denial.
For instance, if the existence of any document is denied, the same can be proved by any facts which suggest that the other party themselves has referred to such documents in its pleadings or correspondences. Similarly, in order to strengthen one's case and to proof the veracity of such denied documents, it is important to proof the existence of the document and the contents of the document that proves one's case which has been denied by the other in the admission/denial of the documents.
Moreover, sub-rule 3 of Rule 4 Order 11 of CPC states that there cannot be a mere denial of the documents. Parties must provide a reason for the denial of a specific document. Especially, when the party denies a receipt but admits the content, it is a settled law that the party must provide for the reasoning of the same. However, if such documents are public documents or any other documents the party adducing the evidence by way of the affidavit should proof to the best of their knowledge as to the authenticity of those documents along with the sources where it was procured from.
Similarly, for proving the disputed facts, the practical approach is to separate the facts which have been disputed by the opposite party from those which have been admitted. It becomes important for the party preparing the evidence to distinguish the admitted facts from the disputed facts and keep its focus upon corroborating those facts by way of affidavits that have been disputed by the other party.
Furthermore, as stated above, as per the requirements of Order 19 Rule 6 of the CPC, the evidence should state the facts in the chronological order bringing together the list of dates following the events subsequently pointing out the claims and the documents that have been relied upon by the parties to establish their case.
Thus, it can be safely concluded that in the case of arbitration even though there is no statutory requirement for the parties to follow the rules of the Evidence Act or Civil Procedure Code, Section 19 of the Arbitration and Conciliation Act empowers the Arbitral Tribunal to call for evidence by way of affidavit. Also, the rules to produce evidence by affidavit laid down in the CPC i.e., under Order 18, Rule 4 , and Order 19 of the CPC are not inconsistency with any of the provisions of the Arbitration and Conciliation Act and therefore is applicable even for evidence produced before the Arbitral Tribunal.
1 Syko Bag Industries vs. ICDS Limited, 2007 (4) KCCRSN 240.
2 §1, Indian Evidence Act, 1872; §19, Arbitration and Conciliation Act, 1996.
3 Ayaaubkhan Noorkhan Pathan vs. the State of Maharashtra, (2013) 4 SCC 465.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.