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2026 Supreme(Ker) 1026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J.
DLF Southern Towns Pvt. Ltd. – Petitioner
Versus
Aditya Deo - Respondent
OP(C) NO. 815 OF 2026
Decided On : 03-08-2026
For the Petitioner: Shri.M.Gopikrishnan Nambiar, Shri.K.John Mathai, Sri.Joson Manavalan, Sri.Kuryan Thomas, Shri.Paulose C. Abraham, Shri.Raja Kannan, Shri.Dominic Antony, Shri.Izhar Mohammed
For the Respondent: Shri.M.Rishikesh Shenoy, Smt.Susy George, Sri.George Pothan Poothicote, Shri.Kurian George Poothicote, Smt.Gayathri Jayakumar, Shri.Anil Xavier (Sr.)
An arbitral tribunal lacks the authority to appoint an advocate commissioner for local inspection or evidence collection, as its power to grant interim relief cannot circumvent the strict statutory constraints governing the method of taking evidence in arbitration proceedings.
Headnote:(A) Arbitration Law - Evidence Collection - Appointment of expert commissioner - Arbitrator’s power to appoint commissioner for local inspection or evidence collection is limited by specific statutory provisions - Invoking interim relief provisions cannot override the restriction on evidentiary procedures - Appointment of commissioner for the purpose of conducting a roving inquiry or collecting material evidence is impermissible. (Paras 12, 13, 15, 16)
(B) Judicial Review - Supervisory jurisdiction - High Court’s power under constitutional provision cannot be restricted by statutory bars - An appellate order concerning interim measures in arbitration proceedings is amenable to challenge under constitutional supervisory powers despite statutory appellate constraints - This jurisdiction is exercisable when orders are rendered without legal authority or manifest error. (Paras 10, 11, 20)
Facts of the case:
The claimants in a dispute sought the appointment of a representative to conduct a local inspection and measure land extent. The arbitrator allowed the application, and the appellate court affirmed this decision. The respondent challenged this by filing an original petition, contending that the arbitrator lacked the jurisdiction to commission such an inspection for the purpose of collecting evidence.
Findings of Court:
The court held that the arbitrator’s power to appoint experts for specific issues does not extend to the appointment of a commission for evidence collection or local inspection. The court determined that the tribunal’s authority to grant interim measures does not bypass the statutory limitations on how evidence is to be gathered. Consequently, the appointment of the commission was found to be beyond the jurisdiction of the tribunal.
Issues: The main issues were whether an original petition challenging an appellate order in arbitration is maintainable and whether an arbitral tribunal has the authority to appoint an advocate commissioner to collect evidence.
Ratio Decidendi: The tribunal is restricted to appointing experts for technical opinion on specific issues. Because statutory provisions limit evidence gathering to specific modes, the use of a commission for general fact-finding constitutes an act outside of jurisdiction, making the lower orders legally unsustainable.
Result: Original petition allowed; the order appointing the commission and the order of the appellate court are set aside.
JUDGMENT :
Easwaran S., J.
1.The first respondent in an arbitration proceeding has come up with the present original petition challenging Ext.P8 order dated 21.2.2026 passed by the Commercial Court-III Ernakulam in MA(Arb) No. 366/2025.
2. Brief facts necessary for the disposal of the original petition are as follows:
Petitioner is the first respondent in an arbitration proceedings initiated before the sole arbitrator. Ext.P1 memorandum of claim submitted before the arbitrator, shows that the respondents herein (claimants) have sought for a direction to the petitioner herein to convey the undivided share of land calculated in the ratio which the super area of the claimants’ Apartment No.E 093 D measuring to 317.52 square meters bears to the total super area of all the apartments in the said building and the undivided proportionate share in the common land area admeasuring to the extent of 24.63 acres situated in Kakkanad Village, Kanayannur Taluk and also consequential damages and compensation. According to the claimants, the dispute arose since the respondents failed to convey the entire extent of property as agreed in the agreement of sale. The sale deed in question was executed on 12.10.2017. Before the execution of the sale deed, a draft maintenance agreement was entered into between the parties, which was preceded by an Apartment Buyer’s Agreement. Since there was an apparent conflict with regard to the extent of the property agreed to be sold to the claimants, they raised a dispute before the arbitrator stating that the petitioner herein is bound by the terms and conditions of the agreement. An objection was filed to the claim statement, contributing the various contentions and also questioning the entitlement of the claimants to seek appropriate reliefs in the arbitration proceedings. Pending the claim, Ext.P3 application was preferred by the claimants seeking an order to appoint an Advocate Commissioner to report on the various points raised therein. The petitioner herein filed Ext.P4 objection stating that the claimants are not entitled to prefer such an application before the arbitrator and that the arbitrator lacks jurisdiction to entertain the claim for appointment of an advocate commissioner in view of the bar contained in Sections 26 and 27 of the Arbitration and Conciliation Act, 1996. Overruling the objection, Ext.P5 order dated 9.10.2025 was passed by the arbitrator appointing an advocate commissioner and directing him to report on various matters specified in the application. Aggrieved, the petitioner herein invoked the statutory remedy under Section 37 of the Arbitration and Conciliation Act, 1996 by filing MA (Arb) No.366/2025. The Commercial Court-III, Ernakulam dismissed the appeal by judgment dated 21.2.2026 (Ext.P8) and affirmed the order of the arbitrator and hence the original petition.
3. Heard Sri.Joson Manavalan, the learned counsel appearing for the petitioner, and Sri.Anil Xavier, the learned Senior Counsel, assisted by Sri.M.Rishikesh Shenoy, appearing for the respondents/claimants.
4. Sri. Joson Manavalan, the learned counsel appearing for the petitioner, submitted that in view of the bar contained under Sections 26 and 27 of the Arbitration and Conciliation Act, 1996, the arbitrator could not have exercised his power to grant interim measures. Though the petition is filed under Section 17, the power exercised by the arbitrator is one under Sections 26 and 27 of the Act. It is pointed out that the materials before the arbitrator are sufficient to decide the claim and that he cannot collect the evidence to decide the lis between the parties. The arbitrator has by virtue of the impugned order directed the measurement of entire 24.63 Acres of land. This act of the arbitrator is without jurisdiction inasmuch as the attempt is nothing but to collect evidence to decide the case. It is further pointed out that the first appellate court (Commercial Court-III, Ernakulam) failed to exercise its powers under Se
