The Guardrail, Not The Bypass: Writ Interference With Interlocutory Orders Of Arbitral Tribunals

Introduction

There is a familiar discomfort in Indian arbitration practice. An arbitral tribunal passes an interlocutory order. One party believes the order is not merely wrong, but seriously prejudicial. The instinctive reaction is to look for an immediate remedy. The Arbitration and Conciliation Act, 1996, however, does not always provide one.

That is when Articles 226 and 227 of the Constitution enter the conversation.

The difficulty is obvious. On one hand, the jurisdiction of the High Courts under Articles 226 and 227 is constitutional and cannot be erased by an ordinary statute. On the other hand, arbitration loses much of its utility if every procedural, evidentiary or jurisdictional order becomes the subject of a separate court proceeding.

This tension arises in everyday practice: a Section 16 objection is deferred, cross-examination is curtailed, a document is taken on record, or a tribunal refuses an adjournment. In each case, the aggrieved party may say, often with some force, that the tribunal has gone wrong. But the harder question is whether that wrong must be corrected immediately by the writ court.

The answer, as the law now stands, is deliberately narrow. Articles 226 and 227 remain available, but they are not meant to operate as a parallel appellate route within arbitration. They are a constitutional guardrail. They are not a bypass around the arbitral process.

Why the Act Resists Interruption

Section 5 of the 1996 Act provides that in matters governed by Part I, no judicial authority shall intervene except where so provided in the Act. The language reflects a clear legislative preference: arbitration should not be conducted under the constant shadow of court proceedings.

The Act provides specific points of court intervention. Section 9 permits court-ordered interim measures. Section 17 empowers the tribunal to grant interim measures. Section 34 provides the principal mechanism for challenging an award. Section 37 identifies appealable orders. What the Act does not do is equally important: it does not create a general appeal against every interlocutory order of the arbitral tribunal.

That omission is deliberate. If every order on procedure, evidence or case management were immediately challengeable, arbitration would become litigation in instalments. A party with enough appetite for delay could convert the reference into a chain of collateral challenges.

This is why the distinction between maintainability and entertainability matters. A petition under Article 226 or 227 may be maintainable in the limited sense that the constitutional jurisdiction of the Hon’ble High Court is not extinguished. But whether that jurisdiction should be exercised is a very different question. In arbitration matters, that second question is usually the real battlefield.

SBP & Co.: The First Warning

 The first major statement of restraint came from the Constitution Bench in SBP & Co. v. Patel Engineering Ltd.¹ The judgment is best known for its ruling on the nature of the power exercised under Section 11. But in the course of its reasoning, the Hon’ble Supreme Court also disapproved the practice of parties approaching the Hon’ble High Court under Articles 226 or 227 against orders passed by arbitral tribunals during the course of proceedings.

The message was plain. A party aggrieved by an order of the arbitral tribunal must ordinarily wait until the award is made and then take such remedies as are available under the Act. If a Section 37 appeal lies, that route may be available. If not, the party usually has to wait.

This was a significant warning because excessive court interference does not merely delay a particular case. It changes party behaviour. Once litigants know that every interim order can be carried to court, the arbitration room stops being the principal forum. It becomes a waiting room before the next court challenge.

Deep Industries: The Door Is Narrow

The more nuanced position emerged in Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd.²

The Hon’ble Supreme Court recognised two propositions which must be held together.

First, Section 5 embodies the policy of minimal judicial intervention. Secondly, Article 227 is a constitutional provision and cannot be cut down by the Arbitration Act.

This meant that Article 227 petitions were not barred as a matter of constitutional competence. But the Hon’ble Supreme Court immediately added the necessary discipline. The Hon’ble High Courts must be “extremely circumspect” in interfering with orders passed in arbitration matters. Interference must be restricted to orders which are “patently lacking in inherent jurisdiction”.

That expression is often invoked, but not always with care. A patent lack of inherent jurisdiction is not the same thing as a wrong order. It is not the same thing as a plausible error. It is not even the same thing as a serious error which can be argued at length. It is a much narrower category. The defect must go to the root of the tribunal’s authority and must be apparent without converting the writ petition into a mini appeal.

Punjab State Power: Perversity Must Stare in the Face

After Deep Industries, the phrase “patent lack of inherent jurisdiction” quickly became a pleading device. Almost every challenge to an interlocutory order began to be dressed up in that language. The Hon’ble Supreme Court addressed this tendency in Punjab State Power Corporation Ltd. v. EMTA Coal Ltd.³

The Hon’ble Supreme Court cautioned that a foray to the writ court from an arbitral order can succeed only where the order is so perverse that the only possible conclusion is that there is a patent lack of inherent jurisdiction. The perversity must stare one in the face.

That last expression is important. If the court has to be taken through pleadings, contractual clauses, correspondence, procedural orders, evidence and competing interpretations before it can decide whether the tribunal went wrong, then the case is probably not within the narrow category contemplated by Deep Industries and Punjab State Power.

This is not because the grievance is necessarily false. It may be genuine. But the writ court is not meant to conduct a running audit of the arbitration. The statutory scheme accepts that some errors may have to wait for correction until the award stage.

Surender Kumar Singhal: A Practical Section 16 Framework

 The decision of the Hon’ble Delhi High Court in Surender Kumar Singhal v. Arun Kumar Bhalotia⁴ is particularly useful because it applies the Supreme Court’s restraint doctrine in a practical Section 16 context.

In that case, certain parties contended that they were not bound by the arbitration clause. The arbitral tribunal did not decide the jurisdictional objection immediately and indicated that it would be considered at a later stage. The aggrieved parties approached the Hon’ble Delhi High Court under Article 227.

The Hon’ble High Court accepted that a petition under Article 227 against an order of an arbitral tribunal is not barred merely because of Section 5. That was the maintainability part. But the Hon’ble Court was equally clear that maintainability does not mean interference.

The more useful part of the judgment lies in its treatment of Section 16. Section 16(5) says that the tribunal shall “decide” a plea that it lacks jurisdiction. One possible reading is that the tribunal must decide such an objection immediately. The Hon’ble Delhi High Court did not accept that as an inflexible rule.

The Court drew a sensible distinction. If the jurisdictional objection can be decided on admitted documents or on a pure question of law, there may be good reason to decide it at the threshold. But where the objection is entangled with disputed facts and requires evidence, the tribunal may defer the decision, provided it decides the objection before making the final award.

The distinction is easy to see in practice. Suppose a franchise or services agreement contains a simple, stand-alone arbitration clause and the Section 16 objection turns only on the wording of that clause and a few admitted emails. In such a case, it is both possible and efficient for the tribunal to decide jurisdiction at the threshold. Nothing much is gained by postponing the issue.

By contrast, consider a multi-party commercial arrangement where the jurisdictional objection depends on who signed, whether the signatory had authority, whether non-signatories were intended to be bound and how the parties conducted themselves before and after execution. Those are not matters that can always be resolved by merely reading the contract. They may require evidence. Forcing the tribunal to decide such a Section 16 plea immediately, on an incomplete record, may produce precisely the kind of premature mini-trial that Surender Kumar Singhal avoids.

Bhaven Construction: Exceptional Rarity

 The next important layer comes from Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd.⁵ The Hon’ble Supreme Court described the Arbitration Act as a “code in itself”. That expression should not be misunderstood. It does not mean that constitutional remedies disappear. The Hon’ble Supreme Court expressly recognised that a legislative enactment cannot curtail constitutional powers. But it held that the exercise of those powers in arbitration matters must be reserved for cases of “exceptional rarity”.

The Hon’ble Supreme Court identified situations where interference may be justified, such as where a party is left remediless or where clear bad faith is shown. Both expressions require care. “Remediless” does not mean that the party does not have an immediate appeal; otherwise, every non-appealable interlocutory order would become vulnerable to writ interference. Similarly, “bad faith” cannot be used as a decorative allegation. It must be factually demonstrable and must appear from the conduct complained of, not merely from the intensity of the party’s dissatisfaction.

In that sense, Bhaven Construction did not dilute Deep Industries. It added another layer of discipline. The jurisdiction exists, but its exercise must remain exceptional.

Serosoft Solutions: Fair Opportunity Is Not Endless Opportunity

 The recent decision in Serosoft Solutions Pvt. Ltd. v. Dexter Capital Advisors Pvt. Ltd.⁶ carries the same principle into the procedural management of arbitration.

The dispute arose from an order concerning cross-examination. The arbitral tribunal had permitted substantial opportunity but declined to grant further time, taking into account the manner in which the proceedings had progressed. The Hon’ble High Court interfered. The Hon’ble Supreme Court reversed that interference.

The value of Serosoft Solutions lies in the distinction it draws between denial of opportunity and refusal to permit endless expansion of opportunity. Natural justice requires that a party be given a fair and effective chance to present its case. It does not require the tribunal to surrender control over its own calendar or permit cross-examination to continue merely because one party would prefer more time.

In arbitration, procedure is not a side issue. It is often the battlefield. A tribunal which cannot control procedure cannot deliver an efficient process. The Hon’ble Supreme Court’s reminder is therefore important: when a tribunal has given adequate opportunity and then says, in substance, “that far and no further”, the writ court should be slow to step in.

The Real Test: Should the Court Interfere Now?

 Read together, the cases show a clear movement towards disciplined restraint. SBP & Co. warned against challenging tribunal orders through writ proceedings. Deep Industries clarified that Article 227 jurisdiction survives, but only in cases of patent lack of inherent jurisdiction. Punjab State Power cautioned that such perversity must stare one in the face. Surender Kumar Singhal applied that restraint to Section 16 objections. Bhaven Construction added the language of exceptional rarity, remedilessness and bad faith. Serosoft Solutions carried the same approach into procedural and case-management orders.

The law has therefore not moved towards a complete bar. That would be constitutionally difficult. Nor has it accepted open-ended interference. That would be commercially damaging. The result is a narrow middle path: constitutional supervision in exceptional cases, arbitral autonomy in ordinary ones.

This is where many petitions fail. They establish maintainability, but not entertainability. A party may correctly say that Section 5 does not oust Article 227. It may also correctly say that the Hon’ble High Court has supervisory jurisdiction. But the real question is different: why should the Hon’ble High Court exercise that jurisdiction at this stage?

The answer cannot simply be that the tribunal is wrong. The petitioner must show something more: patent lack of jurisdiction, perversity which is obvious, clear bad faith, or a situation where postponing the remedy would leave the party genuinely remediless. If the grievance requires elaborate arguments on contract, correspondence, pleadings or evidence, it is unlikely to satisfy that standard.

A useful practical test is this. Is there an appeal under Section 37? Can the grievance be raised under Section 34 after the award? Is the objection truly jurisdictional, or merely labelled as such? Does the alleged perversity stare in the face? Is there demonstrable bad faith? Is the party genuinely remediless, or merely without an immediate remedy? Finally, will the petition protect the arbitration, or derail it?

These questions matter because a weak Article 227 petition carries its own costs. It may delay the arbitration for a while, but it may also damage the party’s credibility before the tribunal and expose it to costs. The better question is therefore not, “Can we file?” In many cases, one can. The better question is, “Should this be filed at all?”

 Conclusion

 The present position is reasonably clear. A writ petition against an interlocutory order of an arbitral tribunal is not barred in the absolute sense. The High Court’s jurisdiction under Articles 226 and 227 survives. But survival of jurisdiction is not the same as routine exercise of jurisdiction.

After SBP & Co., Deep Industries, Punjab State Power, Surender Kumar Singhal, Bhaven Construction and Serosoft Solutions, interference will be reserved for exceptional cases: patent lack of inherent jurisdiction, glaring perversity, clear bad faith, or genuine remedilessness. Most grievances concerning procedure, evidence, adjournments, case management and even some jurisdictional objections must remain within the arbitral process until the appropriate statutory stage.

That is not judicial abdication. It is a recognition of the bargain inherent in arbitration. Parties choose a forum meant to be quicker, more focused and less vulnerable to procedural detours. The courts remain available to ensure that the arbitral process does not leave the road altogether. But they are not meant to provide an exit ramp at every uncomfortable turn.

The Hon’ble High Court is therefore the guardrail, not the bypass. In arbitration, that restraint is not a weakness of the system. It is one of the conditions necessary for the system to work.

Footnotes

1. (2005) 8 SCC 618.

2. (2020) 15 SCC 706.

3. (2020) 17 SCC 93.

4. 2021 SCC OnLine Del 3708.

5. (2022) 1 SCC 75.

6. 2025 SCC OnLine SC 22.

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