The arbitral tribunal cannot enforce its own interim orders; enforcement must be sought through civil courts, preserving the rights of third parties.

JUDGMENT

A. Muhamed Mustaque, Acg.C.J.

This appeal is filed by M/S. Shriram Transport Finance Co.Ltd. They raised a dispute against Sooraj P.C and Beena Chidambaran before the arbitrator. Adv.Sheen Jose has been appointed as arbitrator. Arbitrator passed an interim order invoking Section 17 of the Arbitration and Conciliation (Amendment) Act 2015. By that order, a property comprised in Sy.No.152/4-7-2 in Kottuvally Village, Paravur Taluk has been attached. In the order itself, the arbitral tribunal has given the intimation of attachment to the Sub Registrar, Paravur and Village Officer etc. Consequent upon attachment being recorded by the Sub Registrar and Village Officer, the writ petitioner- Saneesha M S, who claims to be the owner of the property, has approached this Court challenging the interim order passed by the arbitral tribunal invoking Article 226 of the Constitution of India.

2. The learned Single Judge, who heard the matter, had allowed the challenge. The learned Single Judge, noting that the property attached does not belong to the debtors, who were before the arbitral tribunal, but belonged to the writ petitioner-Saneesha M S, had ordered that the award cannot be sustained against the real owner. This is questioned before this Court in an intra-court appeal.

3. The learned counsel for the appellant submits that no challenge can be sustained against the interim order passed under the Arbitration and Conciliation Act invoking Article 226 of the Constitution of India and the remedy lies before the Civil Court under Section 37 of the Arbitration and Conciliation Act.

4. The learned counsel for the respondents submits that since an order has been passed without impleading the writ petitioner-Saneesha M S, she is precluded from raising a challenge against the order invoking Section 37 of the Arbitration and Conciliation Act and since no other remedy is available under law, the writ petition is maintainable.

5. We are now called upon to decide a peculiar issue on intersection of private law and public law remedy.

6. Section 17 of the Arbitration and Conciliation Act confers power on arbitral tribunal to issue interim measures. Sub Section 2 of Section 17 of the Arbitration and Conciliation Act states that such an order issued by the arbitral tribunal shall deem to be an order of the court for all practical purposes and further states that it shall be enforcible under the Code of Civil Procedure. This power is akin to power conferred on civil court under Section 9 of the Arbitration and Conciliation Act, where a civil court is also competent to issue interim measures before or during the arbitral proceedings at any time before the enforcement of the award in accordance with Section 36 of the Arbitration and Conciliation Act.

7. What is the remedy available to the third party to challenge an order of the arbitral tribunal is the question that foremost arises for consideration. It may not be proper for us to conclude now that the remedy lies under Section 37 of the Arbitration and Conciliation act, as we are now dealing with the issue arising out of a challenge under Article 226 of the Constitution of India. Whether a challenge can be made under Section 37 of the Arbitration and Conciliation Act or not is a matter to be decided in appropriate forum. We leave open that question. We are certainly sure that Article 226 of the Constitution of India is not a remedy to challenge an interim measure ordered under Section 17 of the Arbitration and Conciliation Act. The arbitral tribunal, though has to follow the statutory provisions, cannot be considered as State within Article 12 of the Constitution of India nor the award can be subjected to judicial review bypassing statutory remedy. However, there is a limited scope to interfere with such an order if such a tribunal under the guise of the statutory power, acting under the statutory provisions to issue interim measures encroaching upon the fundamental rights of the citizen. A S