Even with both sides consenting, a Section 37 appeal cannot be handed to the arbitral tribunal as a Section 17 application

Justices Aravind Kumar and Prasanna B. Varale set aside that part of a High Court order, holding appellate jurisdiction under Section 37 belongs exclusively to the Court.

An application for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 was rejected, and the appeal against that rejection was pending in the High Court when the arbitral tribunal was constituted. The High Court, with the consent of both sides, sent the appeal to the tribunal to be treated as an application under Section 17. On 18 September 2026 the Supreme Court held that this cannot be done, and set the direction aside, recording that it was passing the order only to clarify the position of law.

The short point

The question the Court framed was whether a High Court exercising statutory appellate jurisdiction under Section 37(1)(b), against the rejection of an application under Section 9, can by consent of the parties remit the appellate proceedings to a subsequently constituted arbitral tribunal.

Two different powers, from two different sources

The answer turns on where each power comes from. Appellate jurisdiction under Section 37 is vested exclusively in the Court as contemplated by Section 2(1)(e) of the Act. An arbitral tribunal exercising powers under Section 17 does not exercise appellate jurisdiction over an order passed by a competent Court under Section 9.

The effect of the High Court's direction, therefore, would be to require the arbitral tribunal to examine the subject matter of a statutory appeal under Section 37 by treating the appellate proceedings as an application under Section 17. The nature and the source of the powers exercised by an appellate court under Section 37 are distinct from the powers conferred on an arbitral tribunal under Section 17, and the Court held that the two cannot be interchanged merely by transmitting or remitting the appellate proceedings to the tribunal.

What the High Court could have done instead

The Court indicated the permissible route. At the highest, on the constitution of the arbitral tribunal, the High Court could have granted liberty to the claimant to approach the tribunal independently under Section 17 for such interim measures as may be available in law. That leaves the statutory appeal where it belongs and lets the tribunal exercise its own power on its own application.

There was also a practical point about the relief originally sought. The prayer in the Section 9 application was to restrain the appellants from terminating the contract or work order. That prayer had spent itself once the work order was terminated on 3 January 2026, and any further or consequential interim protection after that date would have to be considered in the light of the subsequent events and the relief specifically sought.

Order

The impugned order was set aside to the limited extent that it remits the proceedings under Section 37 to the arbitral tribunal and directs that they be treated as an application under Section 17. The Court was told that the tribunal is seized of all the issues between the parties and has passed several orders, pursuant to which the parties entered into a supplementary agreement dated 24 April 2026. On that footing the Court directed that all other issues relating to the disputes be adjudicated by the tribunal, with both parties at liberty to raise all contentions permissible in law. The appeal was disposed of with that modification.