NIYAMA VARTHA
HIGH COURT BENCH SETS ASIDE ARBITRATOR’S ADVOCATE COMMISSIONER ORDER IN DLF CASE
Arbitrators Lack Jurisdiction to Appoint Advocate Commissioners for Evidence Collection, Rules Kerala High Court
Justice Easwaran S. holds that powers under Section 17 cannot bypass statutory restrictions of Sections 26 and 27; High Court’s Article 227 supervisory power remains unimpaired by Section 37 appeal bars.
In a landmark ruling reinforcing the boundaries of arbitral authority, the High Court of Kerala today allowed an original petition filed by real estate developer DLF Southern Towns Pvt. Ltd., setting aside an order passed by a sole arbitrator that had appointed an Advocate Commissioner to conduct a land measurement over 24.63 acres in Kakkanad.
Delivering the judgment in OP (C) No. 815 of 2026, Hon’ble Mr. Justice Easwaran S. held in unequivocal terms that an Arbitral Tribunal does not possess the legal mandate to appoint an Advocate Commissioner for collecting evidence or conducting a roving enquiry into property measurements under the guise of interim measures.
Core Legal Principle Enunciated:
“Merely because Section 17 provides power to the arbitrator to grant interim relief, he cannot bypass the prohibition under Section 26 and grant such relief in exercise of the power under Section 17… the arbitrator does not have any power to appoint an advocate commissioner except to appoint person(s) to solicit expert opinion.”
— Paragraph 16, High Court JudgmentBackground of the Multi-Million Square Feet Property Dispute
The dispute originated from an arbitration proceeding initiated by flat buyers Aditya Deo and Arathi Aditya Deo (Claimants) regarding Apartment No. E 093 D measuring 317.52 square meters in DLF’s “New Town Heights” residential project situated at Kakkanad Village, Kanayannur Taluk, Ernakulam.
The claimants alleged that DLF failed to convey the full agreed undivided share of land proportional to their apartment super area relative to the overall 24.63-acre land complex. They submitted a claim seeking conveyance of undivided land share, damages, and compensation.
During the arbitral proceedings, the claimants moved an interim application (I.A. No. 1 of 2025) requesting the Arbitral Tribunal to appoint an Advocate Commissioner to inspect and measure the entire 24.63 acres of land, along with individual allotments across the multi-story complex.
Despite stiff objections raised by DLF contending that such an appointment violated Sections 26 and 27 of the Arbitration and Conciliation Act, 1996, the sole arbitrator passed an order on October 9, 2025 (Ext. P5) appointing an Advocate Commissioner. DLF challenged this order under Section 37 before the Commercial Court-III, Ernakulam (MA (Arb) No. 366/2025), which dismissed the appeal on February 21, 2026. Aggrieved, DLF moved the High Court under Article 227 of the Constitution of India.
Two Key Issues Resolved by the High Court
Justice Easwaran S. framed and answered two crucial legal questions that carry wide ramifications for commercial arbitration in India:
Is an Original Petition under Article 227 Maintainable Against a Section 37 Appeal Order?
HELD: YES. The respondents argued that Section 37(3) explicitly states that “No second appeal shall lie from an order passed in appeal under this section…”. However, the High Court held that statutory provisions cannot curtail or put a clog on the supervisory powers vested in High Courts under Article 227 of the Constitution of India. The constitutional remedy remains open when lower courts or tribunals act beyond their jurisdiction.
Does an Arbitrator Have the Power to Appoint an Advocate Commissioner?
HELD: NO. The power under Section 26 is limited to appointing experts to report on specific technical issues. Section 27 mandates that for taking evidence or executing commissions, the tribunal must apply to the civil court for assistance. The court ruled that an arbitrator cannot circumvent the prohibitions of Sections 26 and 27 by invoking general powers under Section 17(1).
The Court observed that the core issue before the arbitrator was whether the claimants were entitled to transfer of undivided shares based on the terms of the sale agreement, apartment buyer’s agreement, and maintenance agreements.
“The question before the arbitrator can very well be decided based on interpretation of documents… appointment of an advocate commissioner for measuring out the entire extent of property as well as individual allotment is not required… the attempt made by claimants is to conduct a roving inquiry and collect evidence, which is impermissible.”
Accordingly, the High Court allowed the original petition, quashed Ext. P5 order of the Arbitrator and Ext. P8 order of the Commercial Court-III, Ernakulam, and dismissed the commission application (I.A. No. 1/2025).
THE STATUTORY MATRIX AT A GLANCE Arbitration & Conciliation Act, 1996
Empowers the Arbitral Tribunal to grant interim protection measures during proceedings. High Court ruled this power is strictly subject to the specific procedural rules of Sections 26 and 27.
Authorizes tribunal to appoint experts to report on specific technical issues. Does not permit appointing Advocate Commissioners to collect factual evidence for parties.
Mandates that the tribunal or party with approval must apply to the Court for assistance in taking evidence or issuing commissions.
While Sec 37(3) bars second appeals, Article 227 gives High Courts overriding constitutional supervisory jurisdiction over tribunals and courts.
DLF Southern Towns Pvt. Ltd. v. Aditya Deo & Anr.
| CNR Number: | KLHC010200782026 |
| Citation: | 2026:KER:58587 |
| Case No: | OP (C) No. 815 of 2026 |
| Presided By: | Hon’ble Mr. Justice Easwaran S. |
| Judgment Date: | August 3, 2026 |
| Lower Appeal: | Comm. Court-III, Ernakulam (MA 366/25) |
| Arising From: | Arb. Case No. 1 of 2024 (IA 1/2025) |
For Petitioner (DLF): M. Gopikrishnan Nambiar, K. John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham, Raja Kannan, Dominic Antony, Izhar Mohammed.
For Respondents (Claimants): Anil Xavier (Sr.), M. Rishikesh Shenoy, Susy George, George Pothan Poothicote, Kurian George Poothicote, Gayathri Jayakumar.
Reining in Arbitral Excess: Why Procedural Discipline Matters
The decision of Justice Easwaran S. comes as a timely reminder that while arbitral tribunals enjoy broad procedural autonomy, they are statutory creations bound by the explicit framework of the Arbitration and Conciliation Act, 1996.
In real estate and infrastructure disputes, parties frequently seek advocate commissions to inspect premises or measure expansive tracts of land. However, turning an arbitrator into an evidence-gathering tribunal through roving commissions threatens the fundamental speed and efficiency of arbitration.
By upholding the precedent in Punarnava Ayurveda Hospital, the Kerala High Court has established clarity: document interpretation must precede intrusive field inspections.
Precedents Analyzed in Judgment
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Punarnava Ayurveda Hospital Pvt. Ltd. v. Arbitrator
2023 KLT OnLine 2081
Held that Arbitrators cannot appoint Advocate Commissioners under Section 26 or 27.
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Deep Industries v. ONGC
(2020) 15 SCC 706
Article 227 power against tribunal interim orders limited to exceptional rarity.
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Manash Kamal Bezboruah v. Bokahola Tea Co.
2026 SCC OnLine SC 1330
Cited by respondents regarding constitutional appeal bars.
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Purushothaman Thitta v. Pothan Rajan
2026 KHC OnLine 414
Delineates specific grounds where Art 227 lies against arbitral orders.
Litigation Timeline
- Sale Deed executed for Apartment E 093 D.
- Claim Statement filed in Arb. Case No. 1/2024.
- Claimants file I.A. 1/2025 for Advocate Commissioner.
- Arbitrator passes order appointing Commissioner (Ext. P5).
- Comm. Court-III dismisses DLF’s Sec 37 Appeal (Ext. P8).
- Kerala High Court sets aside Advocate Commissioner order.
Key Passages from the Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 3RD DAY OF AUGUST 2026 / 12TH SRAVANA, 1948
OP (C) NO. 815 OF 2026 | Neutral Citation: 2026:KER:58587
“9. A cursory reading of the aforesaid provision shows that no further second appeal is provided against an order under Section 37 of the Act except to the Supreme Court. But the question before this Court is whether Section 37 can exclude the High Court from exercising the powers under Article 227 of the Constitution of India.
10. The power under Article 227 of the Constitution of India cannot be circumvented or restricted by any statutory provision. In other words, no statute could put a clog on the power of the High Court in exercising its powers under Article 227 of the Constitution of India.”
“15. In the considered view of this court, when Sections 26 and 27 prohibit an arbitrator from appointing an advocate commissioner for the purpose of collecting evidence and that this Court in Punarnava Ayurveda Hospital Pvt. Ltd. (supra) has held that the arbitrator does not have such a power to appoint an advocate commissioner, the bar cannot be circumvented by the arbitrator by taking recourse to the powers under Section 17(1) of the Act.
16. Merely because Section 17 provides power to the arbitrator to grant interim relief, he cannot bypass the prohibition under Section 26 and grant such relief in exercise of the power under Section 17.”
“…This being the position, the arbitrator went outside the scope of his powers under the Arbitration and Conciliation Act, 1996 and appointed an advocate commissioner to solicit material evidence as prayed for, which is impermissible under law… Accordingly, the original petition is allowed by setting aside Exts.P5 order of the Arbitrator dated 9.10.2025 and P8 order of the Commercial Court-III, Ernakulam dated 21.2.2026. Ext.P3 application for appointment of an Advocate Commissioner before the Arbitrator will stand dismissed.”