Point of Law: Section 34 of the 1996 Act permits a challenge “against an arbitral award ... only by an application for setting aside such award”. “Arbitral award” is defined, in clause (c) of Section 2(1), as “including an interim award”.

ORDER :

1. A learned three-member Arbitral Tribunal has, in arbitral proceedings between the parties of which it is in seisin, passed an interlocutory order on 18th June 2022, rejecting an application filed by the petitioner under Order VII Rule 14 of the Code of Civil Procedure, 1908, to bring on record additional documents.

2. This petition, under Article 227 of the Constitution of India, assails the said order.

3. To my mind, the present petition is not maintainable, in view of the following enunciation of the law, to be found in paras 45 and 46 of the report in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618:

“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 of India. 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 his 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, the 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 of the Constitution of India. 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 of the Constitution of India or under Article 226 of the Constitution of India 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.”(Emphasis supplied)

There is no equivocation, whatsoever, in the exposition of the legal position by the Supreme Court, in the afore-extracted passages. The Court can be approached against an interim order in arbitral proceedings only if the order is appealable under Section 37[[37. Appealable orders. –

(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order, namely:-

(a) refusing to refer the parties to arbitration under Section 8;

(b) granting or refusing to grant any measure under Section 9;

(c) setting aside or refusing to set aside an arbitral award under Section 34.

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

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

(b) granting or refusing to grant an interim measure under Section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.] of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”). In all other cases, the litigant, who deems himself aggrieved, has to await the conclusion of the arbitral proceedings and rendition