Review Petition Can't Be Entertained Against Order Refusing To Appoint Arbitrator: Kerala High Court

Justice S. Manu dismissed a review petition filed against an order passed by the court refusing to appoint the arbitrator, holding that the High Court becomes functus-officio after deciding the petition under section 11 and cannot revisit the merits of such orders through review.

The petitioner sought review of the order passed by the court by which it had refused to appoint the arbitrator. When a review petition came up for admission, the court directed both the parties to address the preliminary issue of maintainability.

The petitioner raised several grounds arguing that the High Court being a court of record has inherent power to correct errors in its own records, that after the 2015 amendment, the power to appoint the arbitrator vests in the court and not the Chief Justice's designate therefore such judicial orders must be open to review and that constitutional courts are empowered to rectify errors apparent on the face of the record.

Opposing the plea, the Respondents' submitted that section 11 jurisdiction is purely statutory and the Act contains no such provision permitting review, that Multiple High Courts including Delhi, Madhya Pradesh, Allahabad etc have held that review against a section 11 order is impermissible and that allowing review would defeat the statutory policy of minimal judicial intervention.

Relying on In Re: Interplay Between Arbitration Act and Stamp Act, the court held that actions not permitted by the Arbitration Act cannot be undertaken and that the judicial intervention must remain minimal. It further observed that the 2015 amendment which Chief Justice with High Court/Supreme Court was intended to speed up appointments, not expand the power of judicial review.

It held that “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 of the law of arbitration as well as the amendment made to S.11. Court considering applications under S.11 should bear in mind the policy of minimum and constricted judicial intervention, especially in the reference stage.”

While heavily relying on Hindustan Construction Company Ltd. v. Bihar Rajya Pul Nirman Nigam Ltd., the court observed that the High Courts have limited procedural review power confined to correcting patent errors or oversight of material facts.

Substantive review involving re-interpretation of the merits or interpretation of the arbitration agreement, the court said, is not permissible. It held that once the arbitrator is appointed or the application under section 11 is rejected, the court becomes functus officio.

It said that “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. 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.”

Based on the above, it held that allowing review petitions would create additional layers of litigation frustrating the statutory goal of swift commencement of arbitration. Accordingly, the court dismissed the present petition holding that although the High Courts have inherent powers, it would be unjustified to entertain substantive review petitions against orders passed under section 11.

Case Title: KOSHY PHILLIP V/S THOMAS P MATHEW AND ORS.

Case Number:RP NO. 1582 OF 2025

Citation: 2025 LiveLaw (Ker) 820

Judgment Date: 12/12/2025

For Petitioner: ADV SRI.MILLU DANDAPANI

For Respondents: :ADV GEORGE CHERIAN, (SR)

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