Review Plea Not Maintainable Against Order Refusing To Appoint Arbitrator Under Section 11 Of Arbitration And Conciliation Act: Kerala High Court
Isabella Mariam
The Kerala High Court Single Bench of Justice S. Manu dismissed a review petition as not maintainable, holding that orders passed under Section 11 of the Arbitration and Conciliation Act, 1996 cannot be reopened through substantive review because the Arbitration Act is a self-contained code and permits review only where expressly provided. The petition arose from a challenge to the Court’s earlier refusal to appoint an arbitrator under Section 11, with the petitioner seeking reconsideration and the respondents opposing it. The Court held that once it decides a petition under Section 11, it becomes functus officio and cannot revisit the merits of that decision through review proceedings.
The review petitioner, Koshy Phillip, sought review of an order by which a request for appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 had been dismissed. The respondents were Thomas P. Mathew, P.M. Mathew, and M/s Petra Crushers, represented by its Managing Director.
The review petition was instituted before the High Court of Kerala invoking the Court’s inherent powers as a court of record. The petitioner contended that the power exercised under Section 11(6) of the Act is judicial in nature and that the High Court has authority to correct errors apparent on the face of the record. Reliance was placed on decisions of the Bombay High Court, the Kerala High Court, and the Supreme Court to contend that review jurisdiction could be exercised to rectify mistakes.
The respondents opposed the maintainability of the review petition, contending that the Arbitration and Conciliation Act is a self-contained code and does not provide for review of orders passed under Section 11(6). They argued that the power exercised under the said provision is statutory and that no substantive review is permissible in the absence of an express enabling provision. Reliance was placed on judgments of the Kerala High Court, Delhi High Court, and Allahabad High Court in support of the objection to maintainability.
The court observed: “The objective of the amendment was to expedite the disposal of applications filed under S.11(6) as recommended by the Law Commission.” “Treating such applications for reference like other constitutional, civil and criminal litigations handled by the Court would defeat the purpose and object.” It also stated: “Court considering applications under S.11 should bear in mind the policy of minimum and constricted judicial intervention, especially in the reference stage.”
Referring to “IN RE Interplay Between Arbitration Agreements Under Arbitration And Conciliation Act, 1996 And Stamp Act, 1899”, the court recorded: “(iii) The Arbitration Act is a self-contained code.” “When a self-contained code sets out a procedure, the applicability of a general legal procedure would be impliedly excluded.” It further noted: “The corollary is that it is not permissible to do what is not mentioned under the Arbitration Act.” and “Therefore, provisions of other statutes cannot interfere with the working of the Arbitration Act, unless specified otherwise.”
On review powers in Section 11 matters, the court referred to “Hindustan Construction Company Ltd v Bihar Rajya Pul Nirman Nigam Limited and Others” and recorded: “While High Courts, as courts of record, do possess a limited power of review, such power is extremely circumscribed in matters governed by the Arbitration Act.” “It may be exercised only to correct an error apparent on the face of the record or to address a material fact that was overlooked.” “It cannot be used to revisit findings of law or reappreciate issues already decided.”
The court also quoted the discussion of “Grindlays Bank Ltd v. Central Government Industrial Tribunal and others” and recorded: “the latter is impermissible unless expressly provided.” It extracted: “no review lies on merits unless a statute specifically provides for it.” and “such power inheres in every Court or Tribunal.”
On finality and functus officio, it quoted: “Once the appointment was made, the court became functus officio and could not sit in judgment over the very issue it had already settled.” It also recorded: “courts must resist “attempts to re–enter through the back door what the statute has shut through the front door”.” and “S.11 is intended to trigger arbitration, not to create multiple stages of judicial reconsideration.”
On finality of Section 11 orders and the limits on reopening them, the Court recorded: “The legislative goal of limiting judicial involvement would be plainly undermined if the proposition that every order issued under Section 11 of the Act is subject to substantive review is accepted.” It stated: “Nevertheless, power for limited procedural review on the basis of well settled principles would be inherently available to the High Court with respect to every order passed.” The Court recorded: “Hence it can be firmly concluded that this Court, even though has inherent plenary powers, would not be justified in entertaining petitions for substantive review against orders issued under Section 11 of the Act for want of any enabling provision for review under the Act.” It added: “Judgment of the Hon’ble Apex Court in Hindustan Construction Company Ltd (supra) makes the proposition abundantly clear.”
The Court directed: “To sum up, this review petition is not maintainable and it is accordingly dismissed.”
Advocates Representing the Parties
For the Petitioner: Sri. Millu Dandapani, Advocate
For the Respondents: Sri. George Cherian, Senior Advocate
Case Title: Koshy Phillip v. Thomas P. Mathew & Others
Neutral Citation: 2025: KER:96125
Case Number: R.P. No.1582 of 2025 in A.R. No.179 of 2025
Bench: Justice S. Manu
