Orders of the Arbitral Tribunal can only be challenged under Section 34 of the Act after the conclusion of arbitral proceedings and the final award. High Courts' intervention in correcting arbitral tribunal orders under Articles 226 or 227 of the Constitution is not permissible.

MANMOHAN, J.

1. Present writ petition has been filed challenging order dated 4th March, 2016 whereby the Arbitral Tribunal has rejected the application of the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 (for short "Act, 1996").

2. It is the petitioner’s case that the Arbitral Tribunal erred in holding that the Joint Venture is not a corporate identity and it need not be a claimant.

3. Sections 16(5) & (6), Section 34(2)(a) and Section 37(2)(a) of the Act, 1996 are relevant to the present proceedings and are reproduced hereinbelow:-

"16. Competence of arbitral tribunal to rule on its jurisdiction–

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(5) The arbitral tribunal shall decide on a plea referred to in subsection (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.

(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.

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34. Application for setting aside arbitral award –

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(2) An arbitral award may be set aside by the Court only if-

(a) the party making the application furnishes proof that-

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part;

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37. Appealable orders.-

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(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.-

(a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or......"

(emphasis supplied)

4. From the aforesaid provisions, it is apparent that the impugned order can only be challenged under Section 34 of the Act and that too after the conclusion of the arbitral proceedings along with the final award.

5. At this stage, learned senior counsel for the petitioner states that it is open to the petitioner to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution, as according to him the issue flagged in the present writ petition is a preliminary issue which goes to the root of the matter.

6. However, a Constitution Bench of seven Judges in SBP & Co. Vs. Patel Engineering Ltd. and Anr. (2005) 8 SCC 618 has disapproved the approach of some of the High Courts that any order passed by an arbitral tribunal is capable of being corrected under Articles 226 or 227 of the Constitution. The relevant portion SBP & Co. VS. Patel Engineering Ltd. and Another (supra) is reproduced hereinbelow:-

“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 ord