Judicial intervention in arbitration is restricted; an agenda circulated by an Arbitrator does not constitute an order and cannot be challenged under Articles 226/227 unless it lacks jurisdiction.

ORAL JUDGMENT

1. Heard learned Advocate Mr. Vishrut Jani for M/s RC Jani & Associate for the petitioners, who by way of this petition inter alia seeks to challenge an agenda circulated on 01.09.2024 by the Sole Arbitrator in Arbitration Claim No. 4 of 2023 between the present petitioners and the respondent herein, who is the original claimant, which agenda has been circulated without any application by any of the parties.

2. Learned Advocate Mr. Jani for the petitioners would draw the attention of this Court to minutes of meeting held on 25.06.2024 with regard to the said Arbitration Claim and would submit that the learned Arbitrator vide the minutes had inter alia recorded that parties have made their oral submissions and that the claimant has also submitted his written arguments and whereas the learned Arbitrator also notes that the entire process is concluded and the matter stands for pronouncement of the award on 20.09.2024. Learned Advocate would thereafter draw the attention of this Court to that agenda circulated by the learned Arbitrator dated 01.09.2024 fixing a meeting of the Tribunal on 09.09.2024. Learned Advocate would submit that it was not open for the learned Arbitrator to have circulated an agenda for holding an arbitral meeting after the matter had been reserved for award. Learned Advocate would further submit that as such, the agenda is in form of an order and therefore also intervention of this Court is required. Learned Advocate would take this Court through the agenda and would submit that after the proceedings had concluded, it was not open for the learned Arbitrator to have taken out the agenda in question. Thus submitting, learned Advocate Mr. Jani would request this Court to intervene and to set aside the agenda.

3. Having heard the learned Advocate for the petitioners and having perused the record including the agenda note, to this Court, it would appear that the present petition is absolutely misconceived. At the outset, this Court seeks to refer to Section 5 of the Arbitration and Conciliation Act, which inter alia states that there shall not be any intervention of any judicial authority with regard to an arbitration except so provided in that part. The intent of the legislature being abundantly clearly that unless so provided in the first part of the Act itself, intervention of any legislative authority with regard to an order passed in an arbitral proceeding is prohibited and whereas, there is no procedure as contemplated in the first part of the Arbitration Act, which would envisage interjection at the stage of circulation of an agenda by an arbitrator.

4. While it is true that even a statutory edict like Section 5 of the Arbitration Act, would not be a bar against intervention by this Court in a petition filed under Article 226/227 of the Constitution, yet, by now it is a well settled position that such intervention would be in rare and extraordinary circumstances, more particularly where the order in question patently lacks jurisdiction.

4.1 In this regard, it would be relevant to refer to observations of the Hon'ble Supreme Court in case of Deep Industries Limited Vs. Oil and Natural Gas Corporation Limited and Another, reported in (2020) 15 SCC 706. The observations of the Hon'ble Supreme Court being in the context of a second appeal preferred by respondent under Section 37 of the Arbitration Act against an order passed by the learned Arbitrator therein. Paragraphs No. 11 to 13 of the said decision being relevant for the present purpose are reproduced hereinbelow for benefit.

"11. Given the aforesaid statutory provision and given the fact that the 1996 Act repealed three previous enactments in order that there be speedy disposal of all matters covered by it, it is clear th