Recently, the Kerala High Court was called upon to examine an important question at the intersection of arbitration law and judicial powers whether a review petition is maintainable against an order passed under Section 11(6) of the Arbitration and Conciliation Act, 1996. The issue arose after the dismissal of an arbitration request, prompting the aggrieved party to invoke the Court’s review jurisdiction.
Brief Facts:
The case arose from the dismissal of an arbitration request under Section 11(6) of the Arbitration and Conciliation Act by the High Court in November 2025. Aggrieved by that order, the petitioner filed a review petition contending that the Court had the inherent power to correct errors in its own orders. When the review petition came up for admission, the Court confined itself initially to the question of maintainability, calling upon both sides to address whether such a review was permissible in law.
Contentions of the Petitioner:
The counsel for the Petitioner argued that the High Court, being a court of record under Article 215 of the Constitution, possesses inherent and plenary powers to correct errors apparent on the face of the record. It was contended that after the 2015 amendment to Section 11, the power to appoint arbitrators vests in the “Court” and not merely in the Chief Justice or a designated authority. Therefore, orders passed under Section 11(6) were judicial orders amenable to review. Reliance was placed on precedents recognising the High Court’s inherent power of review, particularly to ensure the correctness of its records. The Petitioner submitted that denial of review would result in perpetuating manifest errors, which would be contrary to principles of justice.
Contentions of the Respondents:
The xounsel for the Respondents opposed the maintainability of the review petition, asserting that the power exercised under Section 11(6) is a statutory power strictly governed by the Arbitration and Conciliation Act, which does not provide for review. It was argued that review is not an inherent power and can be exercised only when expressly conferred by statute. The Respondents relied on decisions of various High Courts holding that substantive review of Section 11 orders is impermissible, even after the 2015 amendment. Emphasis was placed on the Arbitration Act being a self-contained code aimed at minimal judicial intervention, and allowing review petitions would defeat the legislative objective of expeditious arbitration.
Observation of the Court:
The Court observed that although the High Court is a court of record, the Arbitration and Conciliation Act, 1996 is a self-contained and exhaustive code, and therefore judicial powers must operate strictly within the contours of the statute. Relying on the seven-judge Bench decision in IN RE: Interplay Between Arbitration Agreements and the Stamp Act, the Court reiterated that “what is permissible under the law ought to be performed only in the manner indicated, and not otherwise”, and anything not expressly provided under the Act cannot be judicially introduced.
Dealing specifically with review jurisdiction, the Court drew a clear distinction between substantive review and procedural review, observing that “review on merits is impermissible unless a statute specifically provides for it”. The Court emphasised that while a limited procedural review may exist to correct a patent or inadvertent error, re-examination of issues already decided would amount to an appeal in disguise, which the Arbitration Act does not permit.
Placing strong reliance on the Supreme Court’s recent ruling in Hindustan Construction Company Ltd. v. Bihar Rajya Pul Nirman Nigam Ltd., the Court noted that even constitutional courts must exercise extreme restraint in arbitration matters. The Supreme Court had categorically held that “Section 11 is intended to trigger arbitration, not to create multiple stages of judicial reconsideration”, and that once an order under Section 11 attains finality, the court becomes functus officio.
The Court further observed that permitting substantive review of Section 11 orders would defeat the legislative policy of minimal judicial intervention, reflected in Section 5 of the Act and reinforced by the 2015 amendment. It cautioned that entertaining such reviews would delay arbitral proceedings and undermine the objective of expeditious dispute resolution.
The decision of the Court:
The Court held that substantive review of an order passed under Section 11(6) of the Arbitration and Conciliation Act, 1996 is not maintainable, as the Act does not confer any such power of review. It was observed that the Arbitration Act is a self-contained code premised on minimal judicial intervention. Once an order under Section 11 attains finality, the Court becomes functus officio and cannot reopen the matter. Accordingly, the review petition was dismissed as not maintainable.
Case Title: Koshy Phillip v. Thomas P. Mathew & Others
Case No.: R.P. No. 1582 of 2025 in A.R. No. 179 of 2025
Coram: Hon’ble Mr Justice S. Manu
Counsel for the Petitioner: Adv. Millu Dandapani,
Counsel for the Respondent: Sr. Adv. George Cherian
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