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ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO. 34480 OF 2025
Sayla Realtors …Petitioner
Mr. Bhavesh Parmar, a/w Reshma Nair, Rajesh Sahani, i/b
Vijayprakash Yadav, for the Petitioner.
Mr. Shrey Fatterpekar, a/w Hena Gothi, i/b Omkar Khanvilkar, for Respondent.
JUDGMENT
1. By an order dated September 25, 2025, by consent of the parties, an Application under Section 11 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) was taken on board and an arbitrator came to be appointed in the course of dealing with a Petition under Section 9 of the Arbitration Act.
2. The Section 9 Petition was converted into an Application under Section 17 and an arbitral tribunal came to be appointed with a Learned advocate of this Court being appointed as an arbitrator, in disposal of the Section 11 Application. December 10, 2025 Ashwini Vallakati
3. This Review Petition has been filed primarily on the ground that there had been no consent for appointment of any arbitrator from outside the panel of arbitrators maintained in accordance with Section 11(3-A) of the Arbitration Act. The Review Petitioner does not deny consenting to have an arbitrator appointed but now contends that the consent was meant to be for only such arbitrator as appointed in terms of Section 11(3-A) of the Arbitration Act. The further contention is such a condition to the consent had always been pressed and the order of which review is sought, omitted to record such contention and therefore deserves to be reviewed.
4. The order dated September 25, 2025 was not challenged by way of any Special Leave Petition. The contention now being made is that the consent for appointment of an arbitrator was limited to an arbitrator whose name is on the panel of arbitrators maintained by this Court under Section 11(3-A) of the Arbitration Act, and not for any other arbitrator. After arbitration proceedings commenced, and after taking objections to the independence and impartiality, this Review Petition has been filed. Section 11 – no review maintainable:
5. More importantly, in HCC vs. Bihar[1], the Supreme Court considered the issue of whether a High Court has jurisdiction to review an order passed earlier under Section 11(6) of the Arbitration Act as “Issue No. 1” and discussed the issue threadbare in Paragraph 11 (subparagraphs 11.[1] to 11.15), to conclude thus:
11.15. For the reasons discussed above, this Court is of the considered view that the High Court did not have the jurisdiction to reopen or review its earlier order passed under Section 11(6) of the A&C Act. Once the appointment was made, the court became functus officio and could not sit in judgment over the very issue it had already settled. The review order cuts against the grain of the Act, undermines the principle of minimal judicial interference, and effectively converts the review into an appeal in disguise. Such an exercise cannot stand. Accordingly, this issue is answered in the negative. [Emphasis Supplied]
6. To avoid prolixity, the entire contents of HCC vs. Bihar in relation to Issue No. 1 are not being extracted here. Suffice it to say, this Review Petition is not maintainable because of the law declared by the Supreme Court. Purely for clarity 1 Hindustan Construction Company Ltd. vs. Bihar Rajya Pul Nirman Nigam Ltd. – 2025 INSC 1365 Fallacy of the 2019 Amendment Act:
7. The contention that the amendments to Section 11 of the Arbitration Act have been brought into force, is fallacious. Section 11(3- A) of the Arbitration Act is not in force, and the invocation of that provision is the sheet anchor of the Review Petition.
8. However, since the fallacy of contending that Section 11(3-A) of the Arbitration Act is in force, can be said to be attributable to publications of bare provisions of the Arbitration Act have unfailingly made the mistake of showing the provision as having been brought into force, I think it is necessary to clarify the position in this 0rder.
9. The insertion of Section 11(3-A) of the Arbitration Act had been made by Section 3(i) of the Arbitration and Conciliation (Amendment) Act, 2019 (“2019 Amendment Act”), which legislation obtained Presidential Assent on August 9, 2019. This would mean that on this date, the 2019 Amendment Act came into force. Section 1(2) of the 2019 Amendment Act provides as follows:- (2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
10. A plain reading of the foregoing would show that while the 2019 Amendment Act has been brought into force, the Central Government has to issue a notification to bring into force, individual provisions of the 2019 Amendment Act and Parliament has left it to the Central Government to notify different provisions on different dates.
11. Learned Advocate for the Review Petitioner emphatically relies on a notification dated August 30, 2019 (“2019 Notification”) to contend with some indignation, that Section 11(3-A) of the Arbitration Act has indeed been notified. The contents of the 2019 Notification are extracted below: S.O. 3154(E).—In the exercise of the powers conferred by sub-section (2) of section 1 of the Arbitration and Conciliation (Amendment) Act, 2019 (33 of 2019), the Central Government hereby appoints the 30th August, 2019 as the date on which the provisions of the following sections of the said Act shall come into force:— (1) section 1; (2) section 4 to section 9 [both inclusive]; (3) section 11 to section 13 [both inclusive]; (4) section 15.
12. Relying on the foregoing, he would submit that Section 11 of the Arbitration Act has indeed been amended. The submission is incorrect. The 2019 Notification brings into force Section 11 of the 2019 Amendment Act and not the amendments made by Section 3(i) of the 2019 Amendment Act to Section 11 of the Arbitration Act. The fortuitous reference to the “Section 11” in the 2019 Notification, is a reference to Section 11 of the 2019 Amendment Act, which is a provision that has amended Section 45 of the Arbitration Act, and not Section 11 of the Arbitration Act. Such amendment to Section 45 of the Arbitration Act in terms of Section 11 of the 2019 Amendment Act, has been brought into force by the 2019 Notification. For Section 11(3-A) of the Arbitration Act to come into force, Section 3(i) of the 2019 Amendment Act needs to be brought into force, which has not been done.
13. It may be mentioned that Section 11(3-A) of the Arbitration Act, which has not been notified, empowered the Supreme Court and the High Courts to designate arbitral institutions which have been graded by a proposed Arbitration Council of India, which was to be established under Section 43B of the Arbitration Act forming part of Part IA of the Arbitration Act which was sought to be introduced by Section 10 of the 2019 Amendment Act.
14. Arbitral Institutions graded by the Council could be notified by the Supreme Court and the High Courts to play the role envisaged for these Courts for appointment of arbitrators under Section 11 of the Arbitration Act. the Council. No such arbitral institution has been been notified by this Court, needless to say, with Section 11(3-A) not having been brought into force. The proviso to the proposed Section 11(3-A) enables the High Court to maintain a panel of arbitrators in the absence of a graded Arbitral Institution. The provision itself not having been brought into force, the proviso, which is an integral part of it does not need interpretation.
15. In these circumstances, the ground on which the review has been sought, namely that Section 11(3-A) of the Arbitration Act, which is purportedly in force has been ignored by this Court, is misconceived.
16. The misleading impression created by almost all publications of the bare provisions of the Arbitration Act has even led to the Supreme Court having come to a view that Section 11(6-A), a provision that was meant to be deleted from Section 11 of the Arbitration Act by Section 3(v) of the 2019 Amendment Act, had been brought into force. Once Arbitral Institutions are given the role to appoint arbitrators, there is no scope left for Courts to play this role, and therefore Section 11(6-A) of the Arbitration Act, which governed what the Section 11 Court must confine its examination to, would become redundant. Neither has Section 11(3-A) of the Arbitration Act been brought into force, nor has the consequential deletion of Section 11(6-A) been brought into force. Directions:
17. The only reason I feel the need to set out the position obtaining in law in relation to the 2019 Amendment Act above is to provide guidance on the common fallacy about the effect of the 2019 Amendment Act, that gives ground to petitions such as these only because of the erroneous depiction of the position in the bare text publications of the legislation.
18. The Registry is requested to forward this judgment to publishers of the bare legislation to request them to effect corrections in their next editions and also append the full provisions of the 2019 Amendment Act and the 2019 Notification in their publications so that society is clear about the position of law that governs it.
19. It must be mentioned that allegations about the arbitrator appear to have been made about his independence and impartiality in proceedings that are already underway without any challenge to the order appointing the arbitrator. Such contentions fall in the domain of the arbitrator in terms of Section 12 and 13 of the Arbitration Act. A belated review petition cannot be filed after arbitration has commenced, for the reasons articulated in HCC vs. Bihar.
20. In the result, this Review Petition is misconceived and is evidently founded on a non-existent premise, quite apart from invoking a jurisdiction that does not exist. It is therefore dismissed. Costs are imposed in the token sum of Rs. 50,000, which shall be payable by the Review Petitioner to the Respondent within a period of four weeks from the upload of this judgement on the Court’s website.
21. All actions required to be taken pursuant to this order shall be taken upon receipt of a downloaded copy as available on this Court’s website. [ SOMASEKHAR SUNDARESAN, J.]