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Dear All
I want an opinion on the section 26 and section 09 of the Arbitration Act.
Breif is:
We are for respondent. During the proceedings of cross examination of respondent's first witness, Respondent moved an application U/s 26 of Arb. Act 1996 and request from the sole arbitrator for appointment of an independent expert to bring some facts of CRANE(machine) such as maker and capacity(Please note maker and capacity is in dispute between the parties since beginning) and this will enable the respondent to prove that the machinery supplied by petitioner is not as per the contract issued by respondent and therefore was idle at respondent yard and despite of request petitioner neither took back the crane nor refund the advance money and thereby claim of petitioner for rent is not valid. The reason behind the inspection was to bring on record about the manufacturer company, design & capacity of machine and to convince the arbitrator that the design, manufacturer and load lifting capacity is different from the contract issued to petitioner. We also mentioned that the dispute machine is having engine number, chasis number and inspection of the machine can ascertain about manufacturer, chasis number, engine number which can cross verify with manufacturer for the capacity of the machine, moreover this machine may also have some RTO number just like other vehicles. The Hon'ble arbitrator dismiss our application on the ground of
Machines specification and particularly capacity can not be identified being the reason of old or wear and tear.
Because the machines look alike.
This inspection would not help the arbitrator to decide the dispute.
Now We want to challenge this order please suggest how..? Can we go under section 09 which says that "during arbitration proceedings a party can move to court for (c)..........................authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

Your suggestions will be valuable to us.
Thanks in advance.


 1 Replies

Sunil S Nair (lawyer)     28 May 2014

Yes you can move in court with the same facts if you can prove and convince all the aspect you have stated is true and need a expert opinion for the same who is well with those machines who can inspect the crane and then testify in front of the honourable court regarding the same,,

A party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court

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