India: Court Cannot Adjudicate Under Section 27 Of The Arbitration Act

  • Court cannot go behind an order of an arbitral tribunal under Section 27 of the Arbitration & Conciliation, Act, 1996
  • Section 27 prescribes a procedure to enable parties to take assistance of the court in support of arbitration proceedings
  • Powers of the Court under Section 27 are not adjudicatory in nature

The Bombay High Court ("Court"), in Montana Developers Pvt. Ltd vs Aditya Developers1, held that courts are not empowered to adjudicate upon the validity of an order passed by an arbitral tribunal under Section 27 ("Section 27")2 of the Arbitration and Conciliation Act, 1996 ("Act"). Further, the Court held that when an arbitral tribunal or a party to the arbitral proceedings files an application seeking assistance under Section 27 in pursuance of an order passed by an arbitral tribunal, the Court cannot go into the merits of such an application and/or the order itself.

Once an order is passed under Section 27 by the court, any deviance from the same during the arbitral proceedings will be held to be as contempt of court and the penalties relating to contempt will be applicable to the defaulting party. The scope and ambit of a court's power under this section forms the point of consideration in the present case.


Montana Developers Private Limited ("Petitioners") was the Claimant in the arbitral proceedings against Aditya Developers & Others ("Respondents"). The arbitral proceedings had commenced in 2013 with a former Chief Justice of India acting as a sole arbitrator in the matter. After completion of the production of evidence and examination of witnesses by the Petitioner, the arbitrator had proceeded to examine the evidence and witnesses of the Respondents.

At this juncture, the Petitioner filed an application under Section 27 seeking production of further documents and examination of additional witnesses. This was opposed by the Respondents. However, the arbitrator allowed the application by an order dated April 29, 2016 ("Order"). The Petitioner proceeded to file an application under Section 27 of the Act before the Court. This application was also opposed by the Respondents.


  • Whether the Court has adjudicatory powers under Section 27 of the Act?
  • Whether the Court is empowered to question the validity of an order passed by an arbitrator under Section 27 of the Act?


The Respondents, inter alia, contended that merely because the arbitral tribunal was of the opinion that certain witnesses were required to be examined and various documents were required to be produced, the Court could not mechanically pass an order directing the same. They argued that Section 27(3) of the Act uses the term 'may', implying that the Court has the discretion to assist or not, based on the merits of the application. The Respondents relied upon certain judgments,3 where it was held that the Court is empowered under Section 27 to assess the relevancy and the necessity of the documents that were ordered to be produced.

The Petitioner argued that under the Code of Civil Procedure 1908 ("CPC"), if a witness summon was filed, neither was it a pre-requisite to serve a notice on the Respondents nor was it a pre-requisite for the Respondents to be heard. It was stated that the same benefits as provided for under the CPC must be extended to arbitral proceedings as well. This was precisely why Section 27 had been incorporated in the Act. Relying on certain judgments4, the Petitioner contended that the Court was not empowered to give directions to the parties or the arbitrator under Section 27.


The Court held that the purpose of the Section was to provide a procedure for providing assistance to the party in whose favor the tribunal had opined that the production of documents or witness was warranted.

  1. The Court observed that as per Section 19 of the Act, the arbitral tribunal was not bound by the CPC or the Evidence Act, 1872. Therefore, the arbitral tribunal was not empowered to issue any witness summons itself or to compel a party to produce any documents under the provisions of the Act. If the arbitral tribunal was satisfied on the application made that certain witness or documents were needed to be produced, then the arbitral tribunal could grant permission to such a party to take the assistance of a Court under Section 27.
  2. The Court drew an analogy of witness examination in an arbitration with that of a civil suit in so far as in a civil suit, the Respondent was not even required to be heard by the Court. The Court observed that merely because a party had resorted to arbitration in view of the agreement between the parties, it could not be put to a disadvantage in view of the powers of summoning a witness not having been provided to the arbitral tribunal under the Act. Therefore, once the arbitral tribunal was of the opinion that production of such document or witness was warranted, the Respondent could not have raised any objection on the order passed by the arbitral tribunal before the Court.
  3. Under Section 5 of the Act, there is a bar on a Court to intervene in any proceedings except as specifically provided under the Act. There is no provision enabling a challenging an order passed by the arbitral tribunal granting permission to a party to seek assistance of a Court under the Section during pendency of the arbitral proceedings. Accordingly, the powers of the Court under the Section are not adjudicatory in nature and the Order can be only challenged along with the final award at a later stage under Section 34 of the Act.


One of the biggest roadblocks towards establishing arbitration as the preferred medium of dispute resolution in India was judicial interference. Indian legislators and the judiciary have been constantly striving towards reducing judicial interference and amending the existing body of laws to make India an arbitration-friendly jurisdiction. The recent Amendment to the Act was a major step towards that vision.

While Section 27 was not amended, this judgment is in consonance with that vision and demonstrates a pro-arbitration approach that Indian courts have slowly but surely adopted. In this case, the Court was, very mindful of its role in support of arbitration proceedings under Section 27. The decision of the Court is another welcome step as Courts consistently need to show a low threshold of tolerance towards dilatory tactics and a strong pro-arbitration stance.


1 Arbitration Petition (Lodging) No. 680 v 2016

2 Section 27 enables a party to the arbitral proceedings to seek the court's assistance in taking evidence, production of documents and summoning of witnesses during the pendency of arbitral proceedings with the permission of the arbitral tribunal. Under the Act, an arbitral tribunal does not have such powers, but can request a court to carry out such an exercise. Accordingly, Section 27 is an enabling provision permitting one to approach the Court to avail of its assistance in arbitration proceedings by compelling the production of documentary and/or testamentary evidence before the arbitral tribunal.

3 Reliance Polycrete Limited vs. National Agricultural Co-operative Marketing Federation of India[1] and Bharat Heavy Electricals Limited v. Silor Associates S.A

4 United Spirits Limited, Bangalore vs. Delta Distilleries Limited[1] and M/s.Rasiklal Ratilal vs. Fancy Corporation Limited & Anr;

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alipak Banerjee
Sahil Kanuga
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions