An arbitral tribunal may grant protective interim measures before deciding objections to jurisdiction or arbitrability.

Forum Projects Private Limited, developer of the residential complex “Atmosphere” in Kolkata, had obtained sanction for two penthouses on the 36th and 37th floors and an additional apartment at the E-Deck level.

The Respondents were sub-lessees of Apartment B-205 under a registered Indenture of Sub-Lease dated 23 September 2022.

The penthouses and E-Deck apartment were subsequently transferred or agreed to be transferred to third parties.

The Respondents initiated proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, seeking restraint against further construction and alienation of the penthouses and E-Deck apartment.

Pursuant to appellate proceedings, a sole arbitrator was appointed by consent.

In the arbitration, the Respondents alleged that the construction was unauthorised and infringed their contractual rights in the common areas, and sought declaratory, injunctive and mandatory reliefs, including demolition and restoration of the common areas.

The Respondents also initiated proceedings before the West Bengal Real Estate Regulatory Authority, which directed inspection of the penthouses and E-Deck apartment; that direction was affirmed by the West Bengal Real Estate Appellate Tribunal.

During the arbitration, the Respondents filed an application under Section 17 seeking inspection by a surveyor, restraint against handing over possession, and preservation of the common areas.

By order dated 5 February 2026, the Arbitral Tribunal appointed an independent surveyor/chartered engineer to inspect the disputed construction and restrained the Appellant from changing the nature and character of the common areas pending arbitration.

The Appellant challenged that order under Section 37, contending that the dispute was non-arbitrable, that the Section 16 objection should have been decided first, and that the order affected third-party rights without hearing the concerned parties.

Whether the Arbitral Tribunal could grant interim measures under Section 17 while leaving the Appellant’s objections concerning maintainability and arbitrability to be decided under Section 16.

Whether the appointment of a surveyor and the restraint against alteration of the common areas were illegal, perverse, or otherwise liable to interference under Section 37.

Whether the existence of proceedings under RERA and the alleged impact on third-party rights rendered the interim order unsustainable.

The Court applied Sections 16 and 17 of the Arbitration and Conciliation Act, 1996: Section 16 empowers the Arbitral Tribunal to rule on its own jurisdiction, including objections to arbitrability, while Section 17 permits protective interim measures to preserve the subject matter of the arbitration.

Section 16(5) requires continuation of the arbitral proceedings after rejection of a jurisdictional plea but does not mandate that the plea must be finally decided before any interim measure can be granted.

Section 37 confers a limited appellate jurisdiction, broadly analogous to the restraint applicable under Section 34; interference is justified only where the impugned order is patently illegal, perverse, arbitrary, or contrary to settled legal principles.

The Court noted the competing authorities on arbitrability in the context of RERA, including Vidya Drolia v. Durga Trading Corporation, Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., Army Welfare Housing Organisation v. Col. R. Ganesan, Rashmi Realty Builders Pvt. Ltd. v. Rahul Rajendrakumar Pagariya, Priyanka Taksh Sood v. Sunworld Residency (P) Ltd., Pallab Ghosh v. Simplex Infrastructures Ltd., Experion Developers (P) Ltd. v. Sushma Ashok Shiroor and IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, but declined to determine that issue in the Section 37 appeal.

It also relied on Ramakant Ambalal Choksi v. Harish Ambalal Choksi concerning limited appellate interference with discretionary interim orders.

The Court held that the arbitrability and maintainability objections were matters for the Arbitral Tribunal to determine in the first instance under Section 16. The fact that those objections had been raised did not automatically disable the Tribunal from exercising its Section 17 jurisdiction.

The survey direction was characterised as a neutral, independent fact-finding exercise that did not finally adjudicate the parties’ rights or determine the arbitrability objection.

Similarly, the restraint against changing the nature and character of the common areas was merely protective and status quo-oriented; it did not direct demolition, restoration or any irreversible substantive relief.

The Court rejected the argument that Section 16(5) required the Tribunal to decide the jurisdictional objection before granting interim protection.

Sections 16 and 17 serve different purposes: Section 16 addresses the Tribunal’s jurisdiction and continuation of the reference, while Section 17 preserves the subject matter and prevents the proceedings from being rendered infructuous.

Given that alteration of the common areas could cause irreversible consequences, granting limited interim protection before deciding the jurisdictional objection was held to be consistent with the statutory scheme.

The competing RERA authorities demonstrated that the arbitrability question was not self-evident and was therefore left open for the Tribunal.

The Court further held that the Appellant had not shown that the interim measures were perverse or beyond the range of reasonable discretionary orders.

On the limited scope of Section 37 review, the Court declined to substitute its own view for the Tribunal’s plausible and legally permissible approach.

The Court upheld the Arbitral Tribunal’s order appointing an independent surveyor/chartered engineer and restraining alteration of the common areas pending arbitration.

It held that the Tribunal was not required to decide the Section 16 objection before granting limited protective measures under Section 17.

All questions concerning maintainability, arbitrability, non-joinder, the effect of RERA proceedings, and the merits of the parties’ claims were expressly left open for determination by the Arbitral Tribunal, including in accordance with Section 16 and at the stage of the final award.

All pending applications were disposed of.