Case Note & Summary
Background: The original petition arose under Article 227 of the Constitution of India, filed by the first respondent in arbitration proceedings challenging an order of the Commercial Court-III, Ernakulam under Section 37 of the Arbitration and Conciliation Act, 1996. The dispute stemmed from an arbitration between apartment owners (claimants) and the builder (first respondent) concerning conveyance of undivided share in land. A sale deed was executed on 12.10.2017. The claimants sought a direction to convey their proportionate undivided share in the land and common areas, along with consequential damages, alleging failure by the builder to convey the entire agreed extent of property. Facts: Pending arbitration, the claimants filed an application for appointment of an advocate commissioner to measure and report on certain aspects, including the extent of 24.63 acres of land. The builder objected, contending that the arbitrator lacked jurisdiction to appoint a commissioner for collecting evidence due to the bar contained in Sections 26 and 27 of the Arbitration and Conciliation Act, 1996. The arbitrator overruled the objection and passed an order dated 09.10.2025 appointing an advocate commissioner. The builder then filed a statutory appeal under Section 37 of the Act before the Commercial Court-III, Ernakulam, which dismissed the appeal by judgment dated 21.2.2026, affirming the arbitrator's order. Hence the present original petition was filed challenging that appellate order. Legal Issues: The court framed two issues: (a) whether the original petition under Article 227 was maintainable despite the bar under Section 37 of the Arbitration and Conciliation Act, 1996; and (b) whether the arbitrator had the power to appoint an advocate commissioner in view of Sections 26 and 27 of the Act. Arguments: The petitioner's counsel argued that the arbitrator could not have exercised power to grant interim measures because Sections 26 and 27 barred the collection of evidence by the arbitrator; that the appointment of a commissioner to measure the entire 24.63 acres was an attempt to collect evidence and thus without jurisdiction; and that the Commercial Court failed to exercise its powers under Section 37. The respondents' counsel contended that the bar under Sections 26 and 27 was not applicable when the arbitrator considered an interim measure under Section 17; that the arbitrator had every power to look into the real dispute; that no prejudice would be caused by a commissioner's inspection and report; and that the original petition under Article 227 was barred. They relied on the Supreme Court decision in Manash Kamal Bezboruah v. Bokahola Tea Company Private Limited and Others. Court's Analysis: On maintainability, the court examined Section 37 of the Arbitration and Conciliation Act, 1996, which provides for appealable orders and states that no second appeal shall lie from an order passed in appeal under that section, except to the Supreme Court. The court held that the power under Article 227 of the Constitution of India cannot be circumvented or restricted by any statutory provision. The bar under Section 37 was not intended to operate in cases where the High Court exercises its supervisory jurisdiction under Article 227. Accordingly, the court rejected the respondents' maintainability objection and held the original petition maintainable. On the second issue, the court set out the text of Sections 26 and 27 of the Arbitration and Conciliation Act, 1996, but the provided judgment text ends before a final ruling on that issue. Decision: The High Court held the original petition maintainable under Article 227 of the Constitution of India, rejecting the respondents' maintainability objection. The provided text does not contain the final decision on the arbitrator's power to appoint an advocate commissioner.
Headnote
A) Constitutional Law - Supervisory Jurisdiction - High Court's Power Under Article 227 Cannot Be Limited by Statutory Provisions - Constitution of India, Article 227 - The High Court considered whether an original petition under Article 227 is maintainable against an order passed under Section 37 of the Arbitration and Conciliation Act, 1996. It held that statutory provisions cannot circumscribe the constitutional supervisory jurisdiction of the High Court, and the bar against a second appeal under Section 37 does not apply to Article 227 proceedings. Held, the original petition is maintainable (Paras 8-11). B) Arbitration - Arbitral Tribunal's Power to Appoint Advocate Commissioner - Scope of Powers Under Sections 17, 26, 27 of Arbitration and Conciliation Act, 1996 - The court identified the issue whether the arbitrator has the power to appoint an advocate commissioner for collecting evidence despite the alleged bar under Sections 26 and 27. The provided judgment text ends before a final ruling on this issue; it sets out the statutory provisions and notes the rival contentions (Para 12).
Issue of Consideration
Whether original petition under Article 227 is maintainable against order under Section 37; Whether arbitrator has power to appoint advocate commissioner in view of Sections 26 and 27
Final Decision
The High Court held the original petition maintainable under Article 227 of the Constitution of India, rejecting the respondents' maintainability objection. The provided text does not contain the final decision on the arbitrator's power to appoint an advocate commissioner.
Law Points
- Article 227 of Constitution cannot be restricted by statutory provisions
- Section 37 bar not applicable to Article 227 proceedings
- Arbitrator's power under Section 17 not barred by Sections 26 and 27 (subject to pending decision)
- High Court's supervisory jurisdiction cannot be circumvented
