The Supreme Court has clarified an important boundary between the supervisory jurisdiction of courts and the interim powers of an arbitral tribunal under the Arbitration and Conciliation Act, 1996, holding that an arbitral tribunal exercising jurisdiction under Section 17 cannot assume appellate jurisdiction over an order passed by a court under Section 9. A Bench comprising Justice Aravind Kumar and Justice Prasanna B. Varale set aside a direction of the Bombay High Court which had remitted a pending statutory appeal under Section 37 to the subsequently constituted arbitral tribunal and directed the tribunal to treat those proceedings as an application under Section 17. The Court held that the source, character and institutional location of the two jurisdictions are fundamentally different and cannot be interchanged merely because the parties consent to such an arrangement.
The judgment in Union of India & Others v. Hariom Projects Pvt. Ltd., 2026 INSC 1044, arose out of a contractual dispute concerning the provision of administrative and training infrastructure at the National Defence Academy, Khadakwasla. The Union of India had awarded the contract to Hariom Projects Pvt. Ltd., following which disputes arose regarding contractual performance, payment calculations, design issues and other aspects of execution. The contractor subsequently invoked the dispute-resolution mechanism and eventually sought appointment of an arbitrator. The Supreme Court was, however, not called upon to decide the underlying contractual claims. The narrow but important issue before it was whether a statutory appellate proceeding pending before the High Court could be transferred to the arbitral tribunal and converted into a Section 17 application.
The factual sequence assumes importance because the High Court’s direction was not made in a vacuum. The contractor had approached the District Judge, Pune under Section 9 of the Arbitration Act seeking interim protection, including an injunction restraining the Union from cancelling or terminating the work order. The Section 9 application was dismissed on October 15, 2025, following which the contractor invoked Section 37 and filed an appeal before the Bombay High Court. In parallel, proceedings were initiated for constitution of the arbitral tribunal under Section 11. During the pendency of the Section 37 appeal, the Union terminated the work order on January 3, 2026. The High Court stayed the effect of that termination two days later, thereby creating an evolving procedural situation in which the original interim relief sought under Section 9 and the subsequent contractual developments became intertwined.
The High Court thereafter encouraged the parties to proceed expeditiously before an arbitral tribunal so that the factual and contractual disputes could be dealt with in the arbitration itself. The parties agreed upon Major General R.K. Mattu as the sole arbitrator. While appointing the arbitrator, however, the High Court directed that the existing status quo would continue for two weeks and, more importantly, ordered that the proceedings pending before it be remitted to the arbitral tribunal and treated as an application under Section 17 of the Arbitration Act. It was this conversion of a statutory appeal into an arbitral interim application that the Union of India challenged before the Supreme Court.
The Union did not challenge the constitution of the arbitral tribunal itself. Its objection was confined to the jurisdictional route adopted by the High Court. The Additional Solicitor General appearing for the Union argued that an order passed by a competent court under Section 9 can be challenged only through the statutory mechanism provided by Section 37 and that the appellate power under Section 37 belongs exclusively to a court within the meaning of Section 2(1)(e) of the Act. An arbitral tribunal, being constituted pursuant to the arbitration agreement, could not exercise a statutory appellate or supervisory jurisdiction merely because the parties consented to the arrangement.
The argument went to the structural foundation of arbitration law. Arbitration is designed to permit parties to take their substantive disputes away from ordinary civil adjudication and submit them to a privately constituted adjudicatory forum within the limits of the Arbitration Act. But that autonomy does not mean that every power exercised by a court in relation to an arbitration can subsequently be transferred to the arbitral tribunal. The tribunal’s jurisdiction flows primarily from the arbitration agreement and the statutory framework governing arbitration, whereas appellate jurisdiction under Section 37 is a creation of Parliament vested in specified courts. The two jurisdictions may deal with similar subject matter, but similarity of subject matter does not make their sources of authority interchangeable.
The Supreme Court accepted this distinction. It held that the appellate jurisdiction under Section 37 is vested exclusively in the “Court” contemplated under Section 2(1)(e) of the Arbitration Act. By contrast, Section 17 empowers the arbitral tribunal to grant interim measures during arbitral proceedings. The tribunal exercising Section 17 jurisdiction does not sit in appeal over a court’s Section 9 order. The Court consequently held that a pending Section 37 appeal cannot be transmitted to the tribunal and re-labelled as a Section 17 application.
This distinction is particularly important because Sections 9 and 17 may, at first glance, appear to provide substantially similar forms of interim protection. Section 9 empowers the court to grant interim measures before, during or after arbitral proceedings within the limits prescribed by the Act, while Section 17 enables the arbitral tribunal, once constituted, to grant interim protection during the arbitral process. The nature of the relief may sometimes overlap. But the institutional source of the power does not. The Supreme Court’s decision makes clear that functional similarity cannot erase jurisdictional identity.
The 2015 amendment to the Arbitration Act had already moved the legislative framework substantially towards strengthening the arbitral tribunal’s role in granting interim protection. Section 17 was given greater efficacy, and Section 9(3) introduced a principle that once an arbitral tribunal has been constituted, the court ordinarily should not entertain a Section 9 application unless circumstances demonstrate that the remedy under Section 17 may not be efficacious. The legislative objective was to reduce unnecessary judicial intervention and enable the arbitral tribunal to manage interim matters once the arbitration had commenced. The present judgment, however, makes clear that this shift towards arbitral autonomy does not transform the tribunal into an appellate court over judicial orders.
That distinction is crucial to understanding what the Supreme Court has and has not held. The judgment does not diminish the power of an arbitral tribunal to grant effective interim measures under Section 17. Nor does it suggest that a party whose Section 9 application has failed before a court can never seek subsequent interim protection from the tribunal. What the Court has rejected is the procedural fiction of treating a statutory appeal against the Section 9 order itself as though it were an original Section 17 application.
The difference can have considerable practical consequences. Suppose a court refuses an injunction under Section 9 because it finds that the applicant has not established the requisite case for interim protection. The dissatisfied party may have a statutory right of appeal under Section 37 where the Act so provides. That appellate challenge must be decided by the competent court. Once the tribunal is constituted, however, the party may independently approach the tribunal under Section 17 for such interim relief as is legally available in light of the subsequent circumstances. The tribunal’s consideration of a fresh Section 17 application is therefore not an appellate reconsideration of the Section 9 order; it is an exercise of its own statutory interim jurisdiction based upon the circumstances before it at that stage.
The Supreme Court expressly identified this distinction in the present case. It observed that, at the highest, once the arbitral tribunal had been constituted, the High Court could have granted liberty to the contractor to independently approach the tribunal under Section 17 for such interim measures as might be available in law. This route respects both jurisdictions: the Section 37 appeal remains within the court’s statutory appellate domain, while the tribunal remains free to consider fresh interim protection arising from the developing arbitral proceedings.
The judgment also addresses an important practical issue arising from subsequent events. The original Section 9 application had sought, among other things, protection against termination of the work order. But the contract was subsequently terminated on January 3, 2026. Once that event occurred, the original prayer to restrain a future termination had effectively lost its immediate character. Any further interim protection would necessarily have to be considered in light of the termination that had already taken place and the specific relief then being sought. The Court therefore cautioned against mechanically carrying forward an earlier interim prayer when the factual circumstances have materially changed.
This aspect of the judgment is significant for arbitration practitioners because interim relief is inherently contextual. A court or tribunal cannot decide an interlocutory application in complete isolation from subsequent events. The purpose of interim measures is to protect the subject matter of arbitration, preserve the efficacy of the eventual award or prevent specified forms of prejudice. Once the factual matrix changes, the nature of the relief required may also change. An order protecting a contract from termination before termination cannot simply be transplanted into a situation in which termination has already occurred.
The decision also safeguards the hierarchical architecture created by the Arbitration Act. Section 37 does not merely provide another avenue for approaching a judicial forum; it creates a statutory appellate mechanism against specified orders. If a High Court could simply transfer a pending Section 37 appeal to an arbitral tribunal and ask the tribunal to reconsider the matter under Section 17, the statutory appellate structure would become conceptually blurred. The tribunal would effectively be reviewing an order of a judicial authority without possessing the statutory authority to exercise appellate jurisdiction over that order.
The Court’s reasoning is particularly compelling because the parties’ consent could not cure the jurisdictional defect. The fact that both sides had agreed to the appointment of the arbitrator, and that the High Court’s direction may have been intended to promote speed and efficiency, could not confer upon the tribunal a jurisdiction that the statute had not granted it. Jurisdiction is not simply a matter of procedural convenience. Where Parliament has allocated a particular power to a particular institution, parties cannot ordinarily create a different institutional arrangement by consent and thereby alter the statutory scheme.
This is an important principle in arbitration, particularly because the modern arbitration framework strongly emphasises party autonomy. Party autonomy is a foundational feature of arbitration, but it operates within the statutory boundaries of the Arbitration Act. Parties can select arbitrators, agree procedural mechanisms where permitted, and shape many aspects of the arbitral process. They cannot, however, by agreement transform an arbitral tribunal into a statutory appellate court or transfer to it a judicial power that the legislature has vested elsewhere.
The judgment therefore strikes a careful balance between arbitration efficiency and jurisdictional discipline. The Court did not disturb the constitution of the arbitral tribunal merely because the High Court had adopted an impermissible procedural mechanism. Instead, it confined its intervention to the offending portion of the order. The tribunal was permitted to continue dealing with the underlying contractual disputes, while the direction converting the Section 37 proceedings into Section 17 proceedings was set aside.
The subsequent conduct of the parties also influenced the Court’s approach. The Supreme Court was informed that the tribunal had already become seized of the disputes and had passed several orders. The parties had thereafter entered into a Supplementary Agreement dated April 24, 2026, under which the Union permitted the contractor to complete the work, taking into account the national importance of the project. In view of these subsequent developments, the Court considered it appropriate to allow the arbitration to continue and clarified that both parties remained free to raise all legally permissible contentions before the tribunal.
The ruling fits within the broader evolution of Indian arbitration law, which seeks to reduce unnecessary judicial intervention without completely eliminating judicial supervision. Courts continue to perform essential functions at various stages of an arbitration: appointment of arbitrators, interim protection in appropriate cases, challenges under the statute and limited appellate review. But the tribunal is increasingly expected to function as the primary forum for resolving the merits of the contractual dispute. The challenge is therefore not to choose between courts and arbitration, but to ensure that each performs the function assigned to it by statute.
Recent jurisprudence concerning Section 17 reinforces the tribunal’s significant interim powers. Courts have recognised that Section 17 gives an arbitral tribunal powers analogous in many respects to those exercised by a court under Section 9, including the ability to grant interim injunctions, preserve property and secure the subject matter of the dispute. But analogy does not mean appellate equivalence. The Delhi High Court’s recent discussion in India International Convention and Exhibition Centre Ltd. v. Larsen & Toubro Ltd. similarly examined the nature of Section 17 jurisdiction and emphasised that the tribunal’s interim powers, though broad, remain interlocutory and must be exercised within the statutory framework.
There is consequently a useful conceptual distinction emerging from the statutory scheme: Section 9 and Section 17 may be parallel sources of interim protection, but Section 37 is a vertical appellate mechanism. The former two concern the grant of interim measures; the latter concerns judicial review of specified orders. Treating all three as interchangeable because they may concern the same subject matter risks obscuring the architecture of the Act.
The ruling will also discourage a potentially problematic procedural shortcut in complex commercial disputes. High Courts dealing with urgent arbitration matters often attempt to devise pragmatic solutions that preserve commercial relationships while ensuring that disputes move quickly into arbitration. Such case-management efforts are understandable, particularly where infrastructure projects, construction contracts or public works are involved. But expediency cannot replace statutory jurisdiction. A procedurally convenient order may still be legally unsustainable if it transfers a power from one adjudicatory institution to another without statutory authority.
At the same time, the judgment should not be interpreted as requiring courts to remain rigidly disconnected from the arbitral process once a tribunal is constituted. The Arbitration Act itself contemplates interaction between judicial and arbitral mechanisms. Section 9 and Section 17 operate alongside each other, and Section 9(3) reflects a legislative preference for arbitral interim protection after constitution of the tribunal. What the Supreme Court insists upon is that such interaction occur through the legally prescribed channels rather than by converting one form of jurisdiction into another.
The broader significance of the judgment lies in its reaffirmation that arbitration is a creature of both contract and statute. The contractual foundation gives the tribunal its initial legitimacy, while the Arbitration Act defines the contours within which that tribunal can exercise adjudicatory authority. Judicial courts, on the other hand, derive their powers from statute and constitutional structure. The two systems are designed to complement one another, not to collapse into one another.
For commercial litigants, the practical message is equally important. A party dissatisfied with a Section 9 order should carefully distinguish between pursuing its statutory appeal under Section 37 and seeking fresh interim protection under Section 17. The two remedies may coexist in appropriate circumstances, but they cannot be merged simply for convenience. Any subsequent Section 17 application must be independently maintainable and must be assessed on the basis of the circumstances existing when it is made.
The Supreme Court has therefore preserved the integrity of the appellate process without undermining the autonomy of the arbitral tribunal. The Section 37 appeal remains where the statute places it—with the competent court—while the tribunal remains free to exercise its own Section 17 jurisdiction over matters properly brought before it. The judgment is a reminder that arbitration efficiency does not depend upon eliminating jurisdictional distinctions; it depends upon respecting them.
Ultimately, the decision in Union of India v. Hariom Projects Pvt. Ltd. is less about restricting arbitral tribunals than about defining their authority with precision. Section 17 gives tribunals meaningful and effective interim powers, but it does not make them appellate authorities over courts. Section 37 provides a statutory judicial remedy against specified orders, and that jurisdiction cannot be transferred merely because doing so may appear procedurally convenient or because the parties consent. By maintaining this boundary, the Supreme Court has reinforced an important principle of arbitration jurisprudence: autonomy and efficiency are central to arbitration, but neither can be achieved by disregarding the jurisdictional architecture deliberately established by the legislature.
