DELTA DISTILLERIES LIMITEDversusUNITED SPIRITS LIMITED & ANR.

                    [2013] 9 S.C.R. 573


              DELTA DISTILLERIES LIMITED                          A
                                  v.
             UNITED SPIRITS LIMITED & ANR.
              (Civil Appeal No. 8426 of 2013)
                   SEPTEMBER 23, 2013
                                                                  B
        [A.K. PATNAIK AND H.L. GOKHALE, JJ.]

    ARBITRATION AND CONCILIATION ACT, 1996:

     s. 27 rlw s. 25 - Petition for seeking court assistance in   c
taking evidence - Claim regarding set-off/refund pertaining
to sales tax - Prayer by respondent seeking to produce
assessment orders relating to appellant - Held: Arbitrator I
Arbitra/ Tribunal is required to make an. award on merits of
the claim placed before it - For that purpose, if any evidence    D
becomes necessary, Tribunal ought to have power to get the
evidence and it is for this purpose only that the enabling
provision in s.27 has been made - If a claim is to be decided
on the basis of an order of assessment, claimant cannot be
denied the right to seek a direction to party concerned to        E
produce the assessment order - High Court rightly directed
the appellant to produce the documents which were sought
by first respondent - Arbitration Act, 1940 - s.43.

    Interpretation of statutes:
                                                              F
     Construing of a statutory provision - Held: Words used
in a statute are to be read as they are used, to the extent
possible, to ascertain the meaning thereof - s. 71 of
Maharashtra Value Added Tax, 2002 and s. 64 of Bombay
Sa/es Tax Act, contain a bar only against Government officers G
from producing the documents mentioned therein - There
is no bar therein against a party to produce any such
document - Maharashtra Value Added Tax, 2002 - s. 71 -
Bombay Sales Tax Act, 1959 - s.64.
                              573                                 H
    574     SUPREME COURT REPORTS             [2013] 9 S.C.R.


A     The appellant, in terms of an agreement,
  manufactured and supplied to respondent no. 1 certain
  brands of Indian Made Foreign Liquor. The contract price
  at which the IMFL was to be sold by the appellant to
  respondent No.1, was exclusive of sales tax and other
B taxes, and latter was required to bear the same. The
  dispute, whic.h was referred to arbitration, arose between
  the parties regarding set-off/refund obtained by the
  appellant from the Sales Tax Department on the sales tax
  paid on packaging material, and such set-off/refund
C operated to reduce the sales tax liability of the appellant,
  which was ultimately being borne by respondent No.1.
  The Arbitral Tribunal granted permission to respondent
  no. 1 to apply to court for production of the relevant
  assessment orders from the appellant and/or the Sales
  Tax Authorities. Accordingly, respondent No.1 filed an
0
  arbitration petition u/s. 27 of the Arbitration and
  Conciliation Act, 1996. The single Judge of the High
  Court allowed the petition and directed the appellant to
  produce the documents sought for.

E         Dismissing the appeal, the Court

       HELD: 1.1. Section 27(2)(c) of the Arbitration and
  Conciliation Act, 1996 does provide that an application
  under this section seeking assistance of the court shall
F specify the name and address of any person to be heard
  as a witness or as an expert witness. As far as the
  appearance of a party in pursuance to a notice of the
  arbitrator is concerned, s. 25 (c) provides that in the event
  a party fails to appear at an oral hearing or to produce
G documentary evidence, the arbitral tribunal may continue
  the proceedings, and make the arbitral award on the
  evidence before it. This evidence can be sought either from
  any third person or from a party to the proceeding itself.
  The substitution of the phrase "parties and witnesses" u/
  s. 43 of the earlier Act by the phrase 'any person' in s.27
H
 DELTA DISTILLERIES LIMITED v. UNITED SPIRITS          575
                   LIMITED
cannot make any difference. It is an enabling provision A
and has to be read as such. The term 'any person' appearing
in 27 (2) (c) is wide enough to cover not merely the
witnesses, but also the parties to the proceeding. It is
undoubtedly clear that if a party fails to appear before the
Arbitral Tribunal, it can proceed ex-parte, as provided ul B
s. 25 (c). At the same time, it cannot be ignored that the
Tribunal is required to make an award on merits of the
claim placed before it. For that purpose, if any evidence
becomes necessary, the Tribunal ought to have the power
to get the evidence, and it is for this purpose only that c
enabling provision in s.27 has been provided. [Para 18-19]
[586-G-H; 587-A; 588-F-H; 589-A-C]

    Union of India v. Bhatia Tanning Industries AIR 1986
Delhi 195 - referred to.
                                                             D
     1.2. To draw an adverse inference against the
defaulting party is a power available with the Arbitral
Tribunal, and if necessary the same can be used.
However, as observed by the Arbitrator in the order dated
27.3.2007, the documents sought in the instant matter E
were required to arrive at the decision on the claim of
respondent no. 1, since, the quantification in support of
its claim had been done by it on a theoretical basis. A
hypothetical calculation should not be resorted to when
actual Sales Tax Assessments are available, which would F
show as to whether the quantum of set-off allowed and
claimed was in fact justified. If a claim is to be decided
on the basis of an order of assessment, the claimant as
well cannot be denied the right to seek a direction to the
party concerned to produce the assessment order. It is G
this very prayer which has been allowed by the earlier -
order dated 27.3.2007 passed by the then Arbitrator, and
also by the subsequent order dated 16.9.2011 passed by
the Arbitral Tribunal, and rightly so. [Para 21 and 24] [590-
A-C; 592-B-C]
                                                              H
    576      SUPREME COURT REPORTS            [2013] 9 S.C.R.


A     1.3. As regards, the plea that the assessment orders
  were confidential documents in view of s. 71 of the
  Maharashtra Value Added Tax, 2002 and s. 64 of the
  Bombay Sales Tax Act, suffice it to say that it is a settled
  principle of law that the words used in a statute are to be
B read as they are used, to the extent possible, to ascertain
  the meaning thereof. Both these provisions contained a
  bar only against the Government officers from producing
  the documents mentioned therein. There is no bar therein
  against a party to produce any such document. [Paras
C 23 and 24) [590-E; 591-F-G]

        Tu/siram Sanganaria and Another v. Srimati Anni Rai
    and Ors. 1971 (1) sec 284 - relied on.

      1.4. Single Judge of the High Court rightly allowed
D the petition as against the appellant in terms of prayer
  clause 'A', directing the appellant to produce the
  documents which were sought by respondent no. 1.
  [Para 25)
                        Case Law Reference:
E
          AIR 1986 Delhi 195    referred to         Para 11
          1911 (1) sec 284      relied on           Para 24
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
F 8426 of 2013.

        From the Judgment & Order dated 20.07.2012 of the High
    Court of Bombay in Arbitration Petition No. 838 of 2011.

        Ravindra Shrivastava, Aarohi Bhalla, Subodh S. Patil,
G Anshuman Shrivastava, Anup Jain, Abhinav Shrivastava,
  Suvigya Awasti, Ajay Singh, Mayank Gulati, Sujata Kurdukar
  for the Appellant.

      C.U. Singh, Priyanka Mishra, Vanita Bhargava, Ajay
H Bhargava (for Khaitan & Co.) for the Respondents.
 DELTA DISTILLERIES LIMITED v. UNITED SPIRITS               577
                   LIMITED
    The Judgment of the Court was delivered by                      A
     H.L. GOKHALE J. 1. Leave Granted.
      2. This appeal by Special Leave seeks to challenge the
judgment and order dated 20. 7 .2012 rendered by a Single
Judge of Bombay High Court allowing Arbitration Petition            B
No.838 of 2011 filed by the respondent No.1 herein. The said
petition sought to invoke the powers of the court under Section
27 of the Arbitration and Conciliation Act, 1996 (herein after
referred to as the Act of 1996), which provides for seeking
assistance of the court in taking evidence. The said petition had   c
been moved in pursuance of the order dated 16.9.2011 passed
by a three member Arbitral Tribunal permitting the respondent
No.1 to file such an application. The learned Single Judge
allowed the said petition, and thereby directed the appellant to
produce the documents as sought by the respondent No.1              D
before the Arbitral Tribunal. This appeal has been filed by
Special Leave to challenge the said judgment and order. The
appeal raises the question with respect to the scope of Section
27, and the circumstances in which the Arbitral Tribunal or a
party before the Arbitral Tribunal can apply to the court for       E
assistance in taking evidence.
Facts leading to this appeal are this wise:-
     3. The respondent No.1 herein is a company which owns
certain brands of Indian Made Foreign Liquor (IMFL). The
appellant is a company carrying on the business of distilling and   F
bottling of IMFL. The predecessor of the respondent No.1
entered into an agreement with the appellant on 25.3.1997,
under which the appellant agreed to manufacture and supply
to the respondent No.1, IMFL of such brands and quantity, as
would be specified from time to time on the terms and conditions    G
contained therein. Under the said agreement, the contract price
at which the IMFL was to be sold by the appellant to the
respondent No.1, was exclusive of sales tax and other taxes,
and the respondent No.1 was required to bear the same.
                                                                    H
    578      SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A      4. It appears that sometimes in 2001-2002, certain
  disputes arose between the parties. A major dispute between
  them related to the outstanding amount payable at the foot of
  the running account between them. The respondent No.1
  claimed that amongst others, amounts to the tune of
B Rs.1,22,30,692 and Rs.70,23,107.52 were due and payable to
  the respondent No.1, whereas the appellant maintained that an
  amount of Rs.39,37,993 was payable to the appellant.
  According to the first respondent, the appellant had obtained
  from the Sales Tax Department set-off/refund on the sales tax
C paid on packaging material, and such set-off/refund operated
  to reduce the sales tax liability of the appellant, which was
  ultimately being borne by the respondent No.1. The respondent
  No.1 therefore, claimed that it was entitled to the benefit of the
  said set-off/refund, and accordingly debited the appellant for the
  amount of set-off/refund.
0
        5. It was the case of the first respondent that although the
  appellant had accounted for some of. these entries in its
  accounts, it did not account for a major portion of the same.
  Clause 14 of the agreement between the parties provided that
E any dispute or difference arising or relating to or connected with
  the said agreement, was to be referred to arbitration. The above
  dispute was, therefore, referred to the Arbitration of Hon'ble Mr.
  Justice D.M. Rege, former Judge of Bombay High Court.
  However, the Learned Judge resigned as arbitrator, and
F thereafter the proceedings were continued before another
  arbitrator Hon'ble Mrs. Justice Sujata Manohar, former Judge
   -f the Supreme Court of India.

       6. Thereafter, the advocates of the respondent No.1 gave
  a notice to the advocate on record of the appellant on
G 17.3.2007, calling upon them to give inspection and to produce
  the following documents before the learned Arbitrator:-
         (a) All sales tax returns filed by the appellant with the sales
    tax authorities for the assessment years 1995-1996 to 2001-
    2002.
H
  DELTA DISTILLERIES LIMITED v. UNITED SPIRITS 579
           LIMITED [H.L. GOKHALE, J.]
     (b) All sales tax assessment orders passed with regard to A
the appellant for the above-mentioned period, and all appellate
orders, if any passed in any appellate proceedings arising out
of the same.
     (c) The objection, if any, filed by the appellants against the
Notice in Form 40, and proposed order at pages 123 & 124 B
of Volume VI of the documents filed in the arbitration, the order,
if any, passed .thereon, and the appellate proceedings, if. any,
therein.
     (d) The letter dated 26th May 2000 mentioned in the letter C
at page 32 of Volume Ill of the documents filed in the arbitration.
    7. The advocate of the appellant vide his reply dated
21.3.2008, protested and objected to the production of these
documents, since according to the appellant the same were
being sought at a late stage when the proceeding had reached D
the stage of cross-examination of the witnesses of the
respondent No.1. In paragraph 3 of this reply the learned
advocate stated as follows:-
           "3. As regards the inspection of documents sought
    by your clients, my clients repeat that your clients are not E
    entitled to inspection of any documents at this belated
    stage. In any event, my clients are not relying on any of
    the documents referred to in paragraphs (a), (b) and (c)
    of your letter. As regards the documents referred to in
    paragraph (d) of your letter, the said document is already F
    on record before the Hon'ble Arbitrator and hence a copy
    of the said document is already available with you."
     8. Inasmuch as the appellant declined to give inspection I
and produce the document as sought for, the respondent No.
1 made an application on 26.3.2007 before the learned G
Arbitrator, and in paragraph No. 5 thereof, sought a direction
to produce the documents mentioned at SI. Nos.(a) to (c) in the
notice dated 17.3.2007. The learned Arbitrator by her order
dated 27.3.2007 allowed the application only to the extent of
the assessment orders relating to the period 1995-1996 to H
    580       SUPREME COURT REPORTS                 (2013) 9 S.C.R.


A   2001-2002 and the appellate orders mentioned in paragraph
    5(b). The prayer for producing the sales tax returns mentioned
    in paragraph 5(a) was not entertained. Similarly, the prayer to
    produce the documents as sought in paragraph 5(c) was not
    entertained. The learned Arbitrator held in paragraph 4 of her
B   order as follows:-
                 "4. .. .. The documents in paragraphs 5 (a) and 5
          (b) relate to Sales Tax Returns filed by the Respondents
          for Assessment Years 1995-1996 till 2001-2002 and
          Sales Tax Assessment Orders passed in respect of the
c         Respondents for this period including any Appellate
          Orders. One of the claims made by the Claimants in
          these proceedings against the Respondents related to
          the benefit of any sales tax set-off granted to the
          Respondents in connection with the goods in question
D         which, according to the Claimants, should accrue to their
          benefit. Therefore, Sales Tax Assessment Orders relating
          to the period in dispute passed in respect of the
          Respondents are relevant for the purpose of
          determination of this aspect of the dispute. Mr. Savant,
E         teamed counsel for the Respondents has contended that
          these Sales Tax Assessments are not relevant because
          in any case, the Claimants have quantified the set-off
          which they are claiming, and hence, it is not necessary
          to look at Sales Tax Assessments to ascertain the
F         quantum of set-off. However, the quantification is done
          by the Claimants on the theoretical basis that full set-off
          must have been granted to the Respondents and hence,
          75% of the value of the set-off until May 2000 and the
          full value of such set-off thereafter should be considered
G         as having accrued for the benefit of the Claimants. A
          hypothetical calculation on such basis should not be
          resorted to when actual Sales Tax Assessments are
          available which show the quantum of set-off allowed. This
          is in the interest of both the parties. Hence, the argument
          of Mr. Savant cannot be accepted."
H
                         -
 DELTA DISTILLERIES LIMITED v. UNITED SPIRITS                  581
          LIMITED [H.L. GOKHALE, J.]
     9. The appellants were dissatisfied with the order passed.        A
In their subsequent correspondence they made certain
allegations against the learned Arbitrator, who therefore,
resigned from the said proceeding. The parties therefore,
appointed an Arbitral Tribunal consisting of three Judges,
Hon'ble Mr. Justice M. Jagannadha Rao (Presiding Arbitrator)           B
and Hon'ble Mr. Justice S.N. Variava (both former Judges of
the Supreme Court of India), and Hon'ble Mr. Justice M.S.
Rane. (Former Judge of Bombay High Court). On reconstitution
of the Arbitral Tribunal the respondent No.1. pointed out that the
order passed by the earlier Arbitrator dated 27.3.2007 had not         c
been complied with. The Tribunal, therefore, called upon the
appellant to state their position on an affidavit. Thereupon the
Chairman of the appellant filed an affidavit before the Tribunal
on 16.9.2011 stating that the appellant would not produce the
sales tax assessment orders. In paragraph 3 of his affidavit he        D
specifically stated as follows:-
             "3. I humbly and most respectfully submit before
      this Hon'ble Tribunal that, Sales Tax Returns are the
    ··documents which are highly confidential and hence the
      same cannot be subject matter to be produced before              E
      this Hon'ble Tribunal especially when, sales tax set off
      is already quantified by the Claimants and the same is
      forming a part of their claim in the present arbitration
      proceedings. I say that, it is not necessary to inspect the
      said sales tax assessment orders in order to ascertain           F
      the quantum of set off. I say that, the Claimants' demand
      of sales tax set off to an extent of 75% and somewhere
      also 100% is completely vague and arbitrary and that the
      same is completely de hors the contents of the
      agreement dated 25.03.1997. I therefore say that,
      disclosure of any such sales tax assessment orders shall         G
      be completely detrimental to the rights and interest of the
      Respondent Company."
     10. In view of this affidavit of the Chairman of the appellant,
the Tribunal noted that the party in possession of the concerned       H
    582      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A   documents was refusing to produce them, even though it had
    been directed to do so. The Tribunal vide its order dated
    16.9.2011, held that the earlier order dated 27.3.2007 passed
    by the previous' arbitrator could not be reviewed, nor did the
    Tribunal have any jurisdiction to do so. The Tribunal, therefore,
B   permitted the respondent No.1 to apply to the court under
    Section 27 of the Act of 1996, and to seek production of the
    sales tax assessment order for the period 1995-1996·to 2001-
    2002, including any appellate orders in support thereof. The
    Tribunal observed as follows:-
C               "7 ....... One would have expected the Respondent
          to obey the directions of this Tribunal and produce the
          above said documents. However, in as much as they
          have not been produced for more than four years and now
          there is categorical statement by the Chairman of the
D         Respondent Company that they will not produce these
          documents, the Tribunal is compelled to exercise the
          powers under Section 27 of the Act and grant permission
          to the Claimant to apply to the Court for production of the
          documents from the Respondent and/or the Sales Tax
E         Authorities ...... "
        11. Pursuant to the said permission granted by the Tribunal,
  the respondent No.1 filed the Arbitration Petition before the
  Single Judge of Bombay High Court invoking the powers of the
  Court under Section 27 of the Act of 1996, to seek a direction
F to the appellants to produce the earlier mentioned assessment
  orders and appellate orders. The Assistant Commissioner of
  Sales Tax, Pune was joined as respondent No. 2, and a
  direction to produce those documents from his records was as
  well sought. The appellant herein, opposed the said Arbitration
G Petition. Now for the first time, in paragraphs 5 and 6 of the reply
  the appellants stated as follows:-
               "5. The Petitioner's demand pertains to records for
          the period 1995-1996 to 2001-02. I say and submit that
          these are very old records. The same are not available
H         with the Respondent No. 1. I say and submit that
 DELTA DISTILLERIES LIMITED v. UNITED SPIRITS              583
          LIMITED [H.L. GOKHALE, J.]
    Respondent No. 1 is not able to trace these old records. A
    I say that in fact when I made my Affidavit dated 16th
    September, 2011, I had in fact not searched the
    Company's records to ascertain whether the sales tax
    orders were in fact available with it. I say that accordingly
    I had made the said Affidavit dated 16th September, B
    2011 opposing the disclosure on the grounds stated
    therein. I say that during the pendency of the present
    petition, I have checked in order to ascertain whether
    these records were in fact available with the Company and
    have discovered that they cannot be traced."                  c
           6. Without prejudice to the aforesaid, I further say
    that the information that is being requested for by the
    petitioner is confidential and accordingly the same ought
    not be disclosed. n
                                                                  D
     12. The learned Single Judge thereupon heard the parties.
It was submitted on behalf of the appellant before the Learned
Single Judge, that the provisions of Section 27 of the Act of
1996 were analogous to Section 43 of the Arbitration Act,
1940. A judgment of the Delhi High Court in the case of Union
of India v. Bhatia Tanning Industries reported in AIR 1986 E
Delhi 195, on the said Section 43 was relied upon to submit
that the said section applies only to calling witnesses, and not
for giving any direction to the parties. It was further submitted
that at the highest, an adverse inference may be drawn against
the appellant under Order 21, Rule 11 of Code of Civil F
Procedure (hereinafter referred as CPC). Reliance was also
placed on the provision of Section 71 of Maharashtra Value
Added Tax Act, 2002 (hereinafter referred as the Maharashtra
Act) which is pari materia with Section 64 of the Bombay Sales
Tax Act, 1959, and it was contended that the assessment orders G
were confidential, and could not be directed to be produced.
The Assistant Commissioner of Sales Tax who was respondent
No.2 to the Writ Petition (and who is respondent No. 2 to this
appeal also), submitted that the old record of the relevant period
was not available with the Sales Tax Department, and was H
    584     SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A   already destroyed. In any case it was submitted that in view of
    the above referred Section 71, such a direction could not be
    issued.
        13. The learned Judge repelled all these arguments. He
  held that the appellant was misreading the judgment of Delhi
8 High Court, and that it could not be anybody's case !hat a party
  in a proceeding can not be examined as a witness. With
  respect to Section 71 of the Maharashtra Act, the learned
  Judge held that it barred only the production of statements and
  returns, and it was not applicable to the assessment orders.
C The learned Judge also noted that in the earlier affidavit filed
  before the Tribunal, the appellant had not taken any such plea
  that the assessment orders were not available, but within ten
  months thereafter in another affidavit before the High Court it
  was being contended that the said documents were not
D traceable. The learned Judge therefore, allowed the said
  petition invoking Section 27 of the Act of 1996, and directed
  the appellant herein to produce the documents sought for. Being
  aggrieved by this judgment and order the present SLP has
  been filed.
E       14. We have heard Mr. Ravindra Srivastava, learned
  senior counsel in support of this appeal, and Mr. Chander Uday
  Singh, learned senior counsel for the respondent no. 1.
  Respondent no. 2 is a proforma respondent. The challenge in
  this appeal is principally on two grounds. Firstly, that the type
F of order which was sought under Section 27 of the Act of 1996,
  against the appellant was not within the competence of the
  court, and at the highest the Arbitral Tribunal should have drawn
  an adverse inference against the appellant under Order 11 and
  Rule 21 of CPC for non-production of the documents, the
G production of which was sought by the respondent no.1. The
  second challenge was that in any case, the documents which
  were sought were confidential documents, and in view of the
  provision contained in Section 71 of the Maharashtra Value
  Added Tax 2002, and the order compelling the appellant to
H produce such documents could not have been passed.
  DELTA DISTILLERIES LIMITED v. UNITED SPIRITS              585
           LIMITED [H.L. GOKHALE, J.]

      15. As far as the first ground of challenge is concerned,     A
as pointed out earlier, reliance was placed by the respondent
no. 1 on the judgment-of a Division Bench of Delhi High Court
in Bhatia Tanning Industries (supra). Now, what had happened
in this matter was that the respondent/industries were to supply
certain material to the appellant, and since the respondent had     B
committed default in making the supply, the appellant had
raised a claim on account of risk purchase which was referred
to arbitration. The arbitrator sent notices to the address of the
respondents on record twice, and on both occasions the
registered notices were returned to the arbitrator stating that     c
the addressee was not available. It was in these circumstances
that the arbitrator ordered that there shall be a publication of
the notice in a newspaper. That having being done, nobody
appeared for the respondent thereafter also, and the arbitrator
made an ex-parte award. After the award was filed in court, and     D
notice was sent to the respondent, an objection was raised that
the arbitrator had no power to order service by means of
publication in the newspaper. The learned Single Judge who
heard the matter, set aside the award on the ground that the
arbitrator should have gone to the court under Section 43 of        E
the Arbitration Act, 1940 (Act of 1940 for short), and obtained
an order from the Court for service by publication which had
not been done.
     16. This order was challenged in appeal, and a Division
Bench of the High Court allowed the said appeal. The Division       F
Bench held that the there are two separate sections in the Act
of 1940. One was Section 42 which provided service of notice
by a party or arbitrator, and the other was Section 43. Section
43 of the Act of 1940 reads as follows:-
           "43. Power of Court to issue processes for               G
     appearance before arbitrator- (1) The Court shall issue
     the same processes to the parties and witnesses whom
     the arbitrator or umpire desires to examine as the Court
     may issue in suits tried before it.
                                                                    H
    586      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A                (2) Person 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 arbitrator
          or umpire during the investigation of the reference, shall
          be subject to the like disadvantages, penalties and
B         punishments by order of the Court on the representation
          of the arbitrator or umpire as they would incur for the like
          offences in suits tried before the Court
               (3) In this section the expression "processes"
          includes summonses and commissions for the
C         examination of witnesses and summonses to produce
          documents."
  The Division Bench in paragraph 9 of its judgment noted that
  Section 42 provides for the service of a notice by the arbitrator
  on a party before he proceeds to hear the case. On the other
D hand in paragraph 11, the court held that Section 43 is confined
  to cases where a person, whether a party or a third person, is
  required to appear as a witness before the arbitrator. Such
  witnesses whom the arbitrator or umpire desires to examine
  may be summoned through court.
E
       17. We, therefore, fail to see as to how this judgment can
  advance the submission of the appellant, though it was
  contended that Section 27 of the Act of 1996 is similar to
  Section 43 of the Act of 1940. On the other hand, as stated
F above, the Division Bench judgment of Delhi High Court clearly
  lays down that Section 43 of the pre-cursor Act permitted the
  arbitrator t<;? call a third person as well as a party as a witness,
  and the section was not confined only to calling third persons
  as witnesses.
G        18. It was contended on behalf of the appellant that
   whereas Section 43 used the phrase "parties and witnesses",
   Section 27 did not contain such a phrase, and it speaks of
   calling 'any person' as a witness. Section 27(2) (c) does
  ·provide that an application under this section seeking
H assistance of the court shall specify the name and address of
  DELTA DISTILLERIES LIMITED v. UNITED SPIRITS                587
           LIMITED [H.L. GOKHALE, J.]
any person to be heard as a witness or as an expert witness.          A
As far as the appearance of a party in pursuance to a notice
of the arbitrator is concerned, there is a specific provision for
proceeding in the event of default of a party under Section 25.
We may refer to Sections 25 and 27 in this behalf which read
as follows:-                                                          B
    "25. Default of a party.- Unless otherwise agreed by the
    parties, where, without showing sufficient cause,--
           (a) the claimant fails to communicate his statement
    of claim in accordance with sub-section (1) of section 23,        C
    the arbitral tribunal shall terminate the proceedings;
         (b) the respondent fails to communicate his
    statement of defence in accordance with sub-section (1)
    of section 23, the arbitral tribunal shall continue the
    proceedings without treating that failure in itself as an         D
    admission of the allegations by the claimant.
          (c) a party fails to appear at an oral hearing or to
    produce documentary evidence, the arbitral tribunal may
    continue.the proceedings and make the arbitral award on
    the evidence before it."                                          E
           "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.
                                                                      F
          (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 G
    sought;
           (c) the evidence to the 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;          H
    588       SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A                (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 or ordering that the evidence be provided directly
B         to the arbitral tribunal.
                (4) The Court may, while making or order under
          sub-section (3), issue the same processes to witnesses
          as it may issue in suits tried before it.
c               (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
D         punishments by order of the Court on the representation
          of the arbitral tribunal as they would incur for the like
          offences is suits tried before the Court.
               (6) In this section the expression "Processes"
          includes summonses and commissions for the
E         examination of witnesses and summonses to produce
          documents."
        19. As seen from these two sections, Section 25 (c)
  provides that in the event a party fails to appear at an oral
  hearing or to produce documentary evidence, the arbitral
F tribunal may continue the proceedings, and make the arbitral
  award on the evidence before it. This evidence can be sought
  either from any third person or from a party to the proceeding
  itself. The substitution of the phrase "parties and witnesses"
  under Section 43 of the earlier act by the phrase 'any person'
G cannot make any difference, or cannot be read to whittle down
  the powers of the Arbitral Tribunal to seek assistance from the
  court where any person 1vho is not cooperating with the Arbitral
  Tribunal or where any evidence is required from any person,
  be it a party to the proceedings or others. It is an enabling
H provision, and it has to be read as such. The term 'any person'
     DELTA DISTILLERIES LIMITED v. UNITED SPIRITS
                                                         .       589
              LIMITED [H.L. GOKHALE, J.]

    appearing under Section 27 (2) (c) is wide enough to cover not A
    merely the witnesses, but also the parties to the proceeding. It
    is undoubtedly clear that if a party fails to appear before the
    Arbitral Tribunal, the Tribunal can proceed ex-parte, as provided
    under Section 25 (c). At the same time, it cannot be ignored
    that the Tribunal is required to make an award on the merits of B
    the claim placed before it. For that purpose, if any evidence
    becomes necessary, the Tribunal ought to have the power to
    get the evidence, and it is for this purpose only that this enabling
    section has been provided.
         20. The counsel for the appellant tried to take advantage C
    of the first sentence of paragraph 12 of the Delhi High Court
    judgment, which reads as follows:-
               a(12) Section 43 has no application where the party
        to an arbitration agreement has to be summoned for
        appearance before the arbitrator so that he may D
        participate in the proceedings and state his defense."
         We must however note, what the Division Bench has
    stated thereafter, in the very paragraph which is to the following
    effect.
                                                                         E
•               "The teamed judge seems to have been misled by
         the expression 'parties' appearing in section 43. The word
         'parties' is used in the sense where the party itself is
         desired to be examined as a witness by the arbitrator or
         umpire. The expression 'witnesses' used along with the          F
         word 'parties' makes the meaning of the legislature
         abundantly clear. The principle of construction is that
         words of the same feather flock together."
    As can be seen from the paragraph, the paragraph itself says
    that Section 43 has no application for summoning a party to
    appear to participate in the proceeding. It is meant for securing    G
    the presence of third persons as well as parties as witnesses.
    This position cannot be said to be altered due to the absence
    of these words and use of the words 'any person' in Section
    27 of the Act of 1996.
                                                                         H
    590      SUPREME COURT REPORTS                 [2013) 9 S.C.R.


A        21. It was contended that if the necessary documents are
    not produced, at the highest an adverse inference may be drawn
    against the appellant. That is a power, of course available with
    the Arbitral Tribunal, and if necessary the same can be used.
    However, as observed by the learned Arbitrator in her order
B   dated 27.3.2007, the documents sought in the present matter
    were required to arrive at the decision on the claim of the
    respondent no. 1, since, the quantification in support <Jf the
    claim had been done by the respondent no. 1 on a theoretical
    basis. A hypothetical calculation should not be resorted to when
C   actual Sales Tax Assessments are available, which would show
    as to whether the quantum of set-off allowed and claimed was
    in fact justified.
         22. In the circumstances, there is no substance in the first
    objection viz. an order passed by the earlier Arbitrator dated
D   27.3.2007, and the subsequent enabling order passed by the
    Arbitral Tribunal dated 16.9.2011 permitting the respondent to
    apply under Section 27 could not have been passed.
          2~. The second objection was that the assessment orders
    were confidential documents, and Section 71 of the
E   Maharashtra Value Added Tax, 2002 and its pre-cursor Section
    64 of the Bombay Sales Tax Act, did not permit production of
    these documents, and a direction as sought could not have
    been granted. Since, these two sections are invoked, the
    relevant part of both the sections are quoted below.
F               "Section 71 (1) - All particulars contained in any
          statement made, return furnished or accounts or
          documents produced in accordance with this Act, or in
          any record of evidence given in the course of any
          proceedings under this Act (other than proceeding before
G         a Criminal Court) or in any record of any assessment
          proceeding, or any prpceeding relating to the recovery
          of a demand, prepared for the purposes of this Act shall,
          save as provided in sub-section (3), be treated as
          confidential; and notwithstanding anything contained in
H         the Indian Evidence Act, 1872 (1 of 1872), no court shall
 DELTA DISTILLERIES LIMITED v. UNITED SPIRITS          591
          LIMITED [H.L. GOKHALE, J.]
     save as aforesaid, be entitled to require any servant of A .
     the Government to produce before it any such statement,
     return, account, document or record or any part thereof,
     or to given evidence before it in respect thereof."
            "Section 64 (1) - All particulars contained in any
     statement made, return furnished or accounts or B
     documents produced in accordance with this Act, or in
     any record of evidence given in the course of any
     proceedings under this Act (other than proceeding before
     a Criminal Court) or in any record of any assessment
     proceeding, or any proceeding relating to the recovery  c
     of a demand, prepared for the purposes of this Act shall,
     save as provided in sub-section (3), be treated as
     confidential; and notwithstanding anything contained in
     the Indian Evidence Act, 1872 (1 of 1872), no court shall
     save as aforesaid, be entitled to require any servant of D
     the Government to produce before it any such statement,
     return, account, document or record or any part thereof,
     or to given evidence before it in respect thereof. n
     24. If we look at the words used in these two sections, they
very clearly state that particulars contained in any return or E
statement made by a party, or document produced along
therewith are confidential, and no court shall pass any order
requiring the Government or a Government servant to produce
any such statement, document or return. It is a settled principle
of law that the words used in a statute are to be read as they
are used, to the extent possible, to ascertain the meaning F
thereof. Both these provisions contained a bar only against the
Government officers from producing the documents mentioned
therein. There is no bar therein against a party to produce any
such document. In Tulsiram Sanganaria and Another v. Srimati .
Anni Rai and Ors. reported in 1971 (1) SCC 284, a bench of G
three Judges of this Court interpreted an identical provision in
Section 54(1) of the Income Tax Act, 1922, and held that the
said provision created a bar on the production of the documents
mentioned therein by the officials and other servants of the.
Income Tax Department, and made it obligatory on them to treat H
    592      SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A   as confidential the records and documents mentioned therein,
    but the assessee or his representative-in-interest could produce
    assessment orders as evidence, and such evidence was
    admissible. Thus, if a claim is to be decided on the basis of
    an order of assessment, the claimant as well cannot be denied
B   the right to seek a direction to the party concerned to produce
    the assessment order. It is this very prayer which has been
    allowed by the earlier order dated 27.3.2007 passed by the
    then Arbitrator, and also by the subsequent order dated
    16.9.2011 passed by the Arbitral Tribunal, and in our view rightly
c   so. There is no substance in the second objection as well.
        25. There is one more aspect which we must note, i.e.,
  when the first respondent made an application for production
  of the assessment orders, the defence taken by the appellant
  in their affidavit dated 16.9.2011 was that those documents
o were confidential documents, and could not be directed to be
  produced. It was not stated at that time that the said documents
  were not available. It is ten months thereafter, that when the
  second affidavit was filed in the High Court, that the respondent
  for the first time contended. that the said documents were not
E available. This was clearly an after thought, and this attitude of
  the Respondent in a way justified the earlier order permitting
  an application under Section 27 passed by the Arbitral Tribunal.·
  The Assistant Commissioner of Sales Tax of the concerned
  area was also joined as respondent so that he could be
F directed to produce the required documents. However, he
  reported that those documents were old records, and were
  destroyed. The learned Single Judge did not pass any order
  against the respondent No.2 to produce the documents, as
  sought. However, the learned Single Judge rightly allowed the
  petition as against the appellant in terms of prayer clause 'A',
G directing the appellant to produce the documents which were
  sought by the respondent no.· 1.
        26. In the circumstances, there is no merit in the appeal.
    The appeal is, therefore, dismissed.
H   R.P.                                         Appeal dismissed.