SC: Section 37 Appeal Cannot Be Remitted To Arbitral Tribunal For Adjudication Under Section 17

The Hon’ble Supreme Court has, Union of India & Ors. v. Hariom Projects Pvt. Ltd. (2026 INSC 1044), clarified the position of law on the interplay between Sections 9, 17 and 37 of the Arbitration and Conciliation Act, 1996. A High Court hearing a Section 37 appeal against a Section 9 order cannot send it to the Arbitral Tribunal to be treated as a Section 17 application, even where the parties consent. Appellate jurisdiction under Section 37 lies only with the “Court” under Section 2(1)(e). The Tribunal’s Section 17 powers are separate, and the two cannot be interchanged.

Hariom Projects Pvt. Ltd. (Respondent) was awarded a contract by the Union of India for providing administrative and training infrastructure at NDA Khadakwasla. Disputes subsequently arose between the parties in relation to adjustments, payment calculations and design issues.

The respondents invoked arbitration and, pending constitution of the Arbitral Tribunal, filed an application under Section 9 before the District Judge, Pune, seeking interim relief, including an injunction restraining the Union from cancelling, terminating or repudiating the contract. The application was dismissed.

The Respondent thereafter filed an appeal under Section 37. While the appeal was pending, the Union terminated the work order, citing unsatisfactory performance. The High Court stayed the effect and operation of the termination order. Subsequently, in connected proceedings under Section 11, it appointed a Sole Arbitrator and, with the consent of the parties, directed that the proceedings pending before it be remitted to the Arbitral Tribunal and treated as an application under Section 17. The Union challenged only this direction, and not the appointment of the Arbitrator, before the Supreme Court.

The Supreme Court emphasised the distinction between the jurisdictions under Sections 9, 17 and 37. Under the statutory scheme, Section 37(1)(b) provides an appeal to the Court against an order granting or refusing to grant any measure under Section 9, while Section 37(2)(b) separately provides an appeal against an Arbitral Tribunal’s order granting or refusing an interim measure under Section 17.

The Court held that the appellate jurisdiction under Section 37 is vested exclusively in the “Court” contemplated under Section 2(1)(e) of the Arbitration 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 two jurisdictions, therefore, cannot be interchanged merely by remitting the Section 37 proceedings to the Tribunal.

The Court clarified that, at the highest, upon constitution of the Arbitral Tribunal, the High Court could have granted the Respondent liberty to independently approach the Tribunal under Section 17 for such interim measures as may be available in law. Any such application would thus be an independent proceeding before the Tribunal, and not a substitute for the pending Section 37 appeal.

The Court further noted that the original Section 9 prayer seeking restraint against termination had become spent following termination of the contract. Any subsequent interim protection would therefore have to be considered in light of subsequent events and the relief specifically sought.

The Supreme Court accordingly set aside the High Court’s order to the limited extent that it remitted the Section 37 proceedings to the Arbitral Tribunal for treatment as a Section 17 application. The Court noted that the Tribunal was already seized of the disputes and that the parties had subsequently entered into a Supplementary Agreement. The remaining disputes were left to be adjudicated by the Tribunal, with both parties at liberty to raise all contentions permissible in law.