High Court of KeralaSingle Judge2013-06-17Dismissed

V. Bhadrakumar Das v. P.S. Krishna Kumar and Mohana Kumari and The Sole Arbitrator (OP(C).No.1800 of 2013)

Case / Petition Number:OP(C) No.1800 of 2013 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. N. Ravindran
Judgment Date: 2013-06-17
Court Decision / Holding: The original petition under Article 227 is dismissed. The court holds that relief prayed for cannot be granted in light of SBP & Co. v. Patel Engineering Ltd., and that orders of an arbitral tribunal during arbitration are subject to Sections 34/37 rather than writ jurisdiction. The decision notes that Konkan Railway’s position is overruled to align with the present ruling, and the petitioner retains the right to challenge the impugned order in other appropriate proceedings.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

V. Bhadrakumar Das

Respondents

P. S. Krishna Kumar
Mohana Kumari
The Sole Arbitrator

Legal Representation & Advocates

Counsels for Petitioners

• S. Sunil Mauryan
• S. Sebastian Joseph (Kurisummottil)

Case Synopsis & Summary

This Original Petition under Article 227 of the Constitution challenges Ext. P4, the order of the sole Arbitrator in A.R. No.26 of 2008. The petitioner, V. Bhadrakumar Das, a party in an arbitration before the court-appointed sole arbitrator, sought recall of PW1 to confront documents that had already been marked. After evidence was recorded, the arbitrator rejected the recall petition by Ext. P4 on 2 March 2013. The petitioner contends that the order prejudices his right to a fair hearing by excluding documents and thereby affects the arbitration proceedings. He argues that, notwithstanding the arbitration agreement, the High Court can exercise jurisdiction under Articles 226/227 to correct such errors or injustices during arbitration. The respondents rely on SBP & Co. v. Patel Engineering Ltd. (2005) which held that an arbitral tribunal’s interim or in-arbitration orders are not generally subject to writ jurisdiction; remedy lies under Section 34 (challenge to awards) or Section 37 (appeals). The Court emphasizes that the arbitration process is a creature of contract and must be shielded from excessive judicial interference; once arbitration has commenced, intervention is limited. The decision concludes that, in light of SBP Patel Engineering, the petition cannot be granted; it is dismissed, though the petitioner retains the right to challenge the impugned order in appropriate proceedings. Konkan Railway is overruled to the extent of inconsistent conclusions.

Provisions of Law Cited

Arbitration and Conciliation Act, 1996 - Section 11(6)Arbitration and Conciliation Act, 1996 - Section 11(8)Arbitration and Conciliation Act, 1996 - Section 16Arbitration and Conciliation Act, 1996 - Section 34Arbitration and Conciliation Act, 1996 - Section 37Constitution of India - Article 226Constitution of India - Article 227Constitution of India - Article 136

Legal Doctrines & Maxims

Arbitral tribunal is a creature of contract between the parties.
Judicial intervention in arbitration should be minimized; in-process orders can be challenged only under Sections 34/37.
An order of the arbitral tribunal during arbitration is not generally challengeable under Article 226/227.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext. P4, an interlocutory order of the sole Arbitrator rejecting recall of PW1 to confront documents, jeopardizes the petitioner’s right to a fair hearing and the integrity of the arbitration process. He submits that High Court writ jurisdiction under Articles 226/227 is available to correct such errors during arbitration, particularly where the arbitrator’s decision adversely affects the admissibility and cross-examination of key witnesses. The recall petition was dismissed without adequate consideration of the implications for substantive justice within the arbitration.

Contentions of Respondents

The respondents rely on the Supreme Court’s decision in SBP & Co. v. Patel Engineering Ltd., holding that interference under Articles 226/227 with in-arbitration orders is not permissible and that remedies lie under Sections 34 and 37 of the Arbitration Act. They emphasize that arbitration is a creature of contract, and court intervention would undermine the policy of minimal judicial interference during arbitration. They also point to Konkan Railway, argued to be overruled in the present decision, to support that orders during arbitration are to be treated within the arbitration framework rather than by writs.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
SBP & Co. v. Patel Engineering Ltd. and Another	2005 (8) SCC 618	Positive	Cited as controlling authority for the proposition that in-arbitration orders are not generally challengeable under Article 226/227 and that remedies lie under Sections 34 and 37.
Konkan Railway Corpn. Ltd. and Anr. v. Rani Construction Pvt. Ltd.	(2002) 2 SCC 388	Overruled	The judgment explicitly states that the Konkan Railway decision is overruled by the present judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 17TH DAY OF JUNE 2013/27TH JYAISHTA 1935** ## **OP(C).No. 1800 of 2013 (O)** **--------------------------(A.R.NO.26/2008 BEFORE THE SOLE ARBITRATOR, THIRUVANANTHAPURAM)** ## **--------------------------------------** ## **PETITIONER(S):** **--------------------------** **V.BHADRAKUMAR DAS, AGED 77 YEARS S/O.G.VELU PILLAI, VAISHNAVY, T.C.28/155 KAITHAMUKKU, THIRUVANANTHAPURAM-695024.** **BY ADVS.SRI.S.SUNIL MAURYAN SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)** ## **RESPONDENT(S):** **----------------------------** ## **1. P.S.KRISHNA KUMAR** **S/O.SIVARAMAN PILLAI, RAJEEVAM, T.R.S.NAIR ROAD PERUNTHANNI, THIRUVANANTHAPURAM-695008.** ## **2. MOHANA KUMARI,** **W/O.B.K.KRISHNAN NAIR, T.C.XXVIII/155(1), SREECHAKRAM KARAYOGA MANDIRAM ROAD, KAITHAMUKKU THIRUVANANTHAPURAM-695024.** ## **3. THE SOLE ARBITRATOR,** - **ADV.BIJU BALAKRISHNAN, 33/269-A NEAR ST.MATHEW'S CHURCH, VENNALA.P.O., KOCHI-682028.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1800 of 2013 (O)** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** ## **EXHIBIT P1: TRUE COPY OF THE PARTNERSHIP DEED.** **EXHIBIT P2: TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN A.R.NO.26 OF 2008 APPOINTING SOLE ARBITRATOR.** **EXHIBIT P3: TRUE COPY OF THE PETITION DATED 18.1.2013 FOR RECALLING WITNESS FILED BY THIS PETITIONER BEFORE THE SOLE ARBITRATOR.** **EXHIBIT P4: TRUE COPY OF THE ORDER OF THE SOLE ARBITRATOR DATED 02.03.2013.** **RESPONDENT(S)' EXHIBITS NIL** **---------------------------------------** R.AV //TRUE COPY// PA TO JUDGE **“C.R.”** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------O.P.(C) No.1800 of 2013 -------------------------Dated this the 17[th] day of June, 2013** ## **J U D G M E N T** The petitioner is the first respondent in an arbitration proceedings pending before the sole Arbitrator appointed by this Court in A.R.No.26 of 2008. After evidence was recorded, he filed an application to recall PW1, the first plaintiff, stating that due to an inadvertent omission PW1 could not be confronted with documents which had already been marked. By Ext.P4 order passed on 2.3.2013, the sole Arbitrator appointed by this Court rejected the said petition. Hence this original petition under Article 227 of the Constitution of India challenging Ext.P4 order passed by the sole Arbitrator. ## 2. The Apex Court has in **SBP & CO. v. Patel Engineering Ltd. And** ## **Another** (2005 (8) SCC 618) held as follows: _“45. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227_ O.P.(C) No.1800/2013 2 _of the Constitution. Such an intervention by the High Courts is not permissible._ _46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage._ ## _47. We, therefore, sum up our conclusions as follows:_ _i)The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power._ _ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another judge of that court and by the Chief Justice of India to another judge of the Supreme Court._ _(iii) In case of designation of a judge of the High Court or of the Supreme Court, the power that is exercised by the designated judge would be that of the Chief Justice as conferred by the statute._ _(iv)The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the designated judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11 (8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated judge ._ _(v) Designation of a district judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act._ _(vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the arbitral tribunal during the course of the arbitration proceedings and the parties could approach the court only in terms of Section 37 of the Act or in terms of Section 34 of the Act._ O.P.(C) No.1800/2013 3 _(vii)Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution to the Supreme Court._ _(viii)There can be no appeal against an order of the Chief Justice of India or a judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act._ _(ix) In a case where an arbitral tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act. (x)Since all were guided by the decision of this Court in Konkan Railway Corpn. Ltd. and Anr. v. Rani Construction Pvt. Ltd. [(2002) 2 SCC 388] and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act._ _(xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that court designated by the Chief Justice._ _(xii) The decision in Konkan Railway Corpn. Ltd. and Anr. v. Rani Construction Pvt. Ltd. [(2002) 2 SCC 388] is overruled.”_ 3. It was held that the orders passed by the arbitral tribunal during the course of arbitration proceedings can be challenged only in terms of section 34 or 37 of the Arbitration and Conciliation Act, 1996. It was held that the party aggrieved by any order of the arbitral tribunal has to wait until the award is passed by the Arbitrator unless he has a right of appeal under section 37 of the Act, that under section 34 of the Act, the aggrieved party has an avenue for ventilating its grievance against the award including the inbetween orders that have been passed by the arbitral tribunal acting under O.P.(C) No.1800/2013 4 section 16 of the Act. The Apex Court also disapproved the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected under Article 226 or 227 of the Constitution of India and that such intervention by the High court is not permissible. In the light of the binding decision of the Apex Court in **SBP & CO. v. Patel Engineering Ltd. And Another** (2005 (8) SCC 618), the relief prayed for by the petitioner cannot be granted. The original petition fails and is dismissed, but without prejudice to the right of the appellant to challenge the impugned order in other appropriate proceedings. **P.N.RAVINDRAN,** **(JUDGE)** vps O.P.(C) No.1800/2013 5 O.P.(C) No.1800/2013 6