ALKA CHANDEWAR versus SHAMSHUL ISHRAR KHAN
[2017] 6 S.C.R. 533, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2017] 6 S.C.R. 533 
ALKA CHANDEWAR 
v. 
SHAMSHUL TSHRAR KHAN 
(Civil Appeal No. 8720 of 2017) 
JULY06, 2017 
[R. F. NARIMAN AND SANJAY KISHAN KAUL, JJ.] 
Arbitration and Conciliation Act, 1996 - ss. 2 7 (5) and 17 (2) 
A 
B 
- Courts power to punish for contempt of orders made by Arbitral 
tribunal - Scope and ambit of - Held: Section 27(5) specifically C 
states that persons guilty of any contempt to the arbitral tribunal 
during the conduct of the arbitral proceedings is within its ken -
Entire object of providing that a party may approach the arbitral 
tribunal instead of the Court for interim reliefs would be stultified if 
interim orders passed by such tribunal are toothless - It is to give 
teeth to such orders that an express provision is made in s. 27(5) -
D 
More so, s. 17(2) was added, so that the cumbersome procedure of 
arbitral tribunal having to apply every time to the High Court for 
contempt of its orders would no longer be necessmy - On facts, the 
order passed by the High Court that s.27(5) does not empower the 
arbitral tribunal to make representation to the court for contempt 
E 
of the orders including interim order unless they are in respect of 
taking evidence, set aside - Matter remanded back to decide the 
alleged .contempt on facts. 
Allowing the appeal, the Court 
HELD: 1.1 On reading Section 27(5) of the Arbitration 
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and Conciliation Act, 1996 literally, persons failing to attend in 
accordance with the court process fall under a separate
category 
from "any other default". Further, the Section is not confined to 
a person being guilty of contempt only when failing to attend in 
accordance with such process. The Section specifically states that 
persons guilty of any contempt to the Arbitral Tribunal during G 
the conduct of the Arbitral proceedings is within its ken. The 
said language is, in fact, in consonance with the Chapter heading 
of Chapter V, "Conduct of arbitral proceedings". Further, it is 
well settled that a marginal note can be used as an internal aid to 
533 
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534 
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B 
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SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
interpretation of sta'tutes only in order to show what is the general 
drift of the section. It may also be resorted to when the plain 
meaning of the section is not clear. In the instant case, the plain 
meaning of sub-section (5) is resorted to. This being the case, it 
is difficult to appreciate the reasoning of the High Court. Also, in 
consonance with the modern rule of interpretation of statutes, 
the entire object of providing that a party may approach the 
Arbitral Tribunal instead of the C9urt for interim reliefs would 
be stultified if interim orders passed by such Tribunal are 
toothless. It is to give teeth to such orders that an express 
provision is made in Section 27(5) of the Act. [Para 7) [539-E-G) 
1.2 Sub-section(2) to Section 17 was added by the 
Amendment Act 2015, so that the cumbersome procedure of an 
Arbitral Tribunal having to apply every time to the High Court 
for contempt of its orders would no longer be necessary. Such 
orders would now be deemed to be orders of the Court for all 
D purposes and would be enforced under the Civil Procedure Code, 
1908 in the same manner as if they Were orders of the Court. 
The submission that sub-section (2) of section 17 introduced by 
the 2015 Amendment Act now provides for the necessary remedy 
against infraction of interim orders by tribunal is of no substance 
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F 
G 
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in view of the fact that Section 17(2) was enacted for the purpose 
of providing a
"complete solution" to the problem. [Para 10) 
[541-F-G] 
1.3 The judgment of the High Court is set aside. The 
matter is remanded to decide the alleged contempt on facts. 
[Para 11] [542-A-B) 
Maruti Udyog Limited v. Mahinder C Mehta & Ors 
[2007) 10 SCR 933: 2007 (13) SCC 220; Mis Ambalal 
Sarabhai Enterprises v. Mis Amrit Lal & Co. & Anr. 
[20011 2 Suppl. scR 195 : (2001) s sec 397 -
referred to. 
[2007] 10 SCR 933 
Case Law Reference 
referred to 
[2001] 2 Suppl. SCR 195 
referred to 
Para4 
Paras
ALKA CHANDEWAR v. SHAMSHUL ISHRAR KHAN 
535 
CIVIL APPELLATE JURISDICTION: Civil Appeal No.8720 
A 
of 2017. 
From the Judgment and Order dated 27.10.2015 of the High 
Court ofJudicature at Bombay in Contempt Petition No.102 of2015. 
B. H. Marlapalle, Sr. Adv. S. Y. Chi tale, Abhijat P. Medh, Advs. 
for the Appellant. 
Rana Mukherjee, Sr. Adv., Partha Sil, Tavish B. Prasad, 
Ms. Subhoshree Sil, Advs. for the Respondent. 
The Judgment of the Court was delivered by 
R. F. NARIMAN, J. 1. Leave granted. 
B 
c 
2. The present appeal arises from the judgment of the Bombay 
High Court dated 271h October, 2015, in which the High Court has 
construed Section 27(5) of the Arbitration and Conciliation Act, 1996 
(hereinafter referred to as "the Act") in a somewhat restrictive manner. 
The facts necessary to appreciate the point involved in this appeal are 
D 
that on 7'h October, 2010, the sole Arbitrator appointed by the parties 
passed an interim order under Section 17 of the said Act, in which it was 
mentioned that no further flats were to be disposed of without the leave 
of the Arbitral Tribunal. In breach of this order, it is alleged that on 14'h 
October, 2010 the respondent in fact transferred five such flats. By the 
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order passed on 22"d March, 2012, it was held by the learned Arbitrator 
that the order of 71h October, 2010 had, in fact, been breached by the 
respondent and certain other interim directions were made by the 
aforesaid order. Ultimately, by an order dated
5'h May, 2014, the learned 
Arbitrator referred the aforesaid contempt of the order dated 7•h October, 
2010 to the High Court to pass necessary orders thereon under Section 
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27(5) of the Act. 
3. In the judgment under appeal, the High Court held: 
"In view of the above discussion, Section 27(5) of the Arbitration 
and Conciliation Act, 1996 does not empower the Tribunal to make 
representation to the Court for contempt if the orders including 
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the interim orders passed by the Arbitrator except in respect of 
taking evidence are violated by the party. The Contempt Petition 
being the representation made by the Tribunal is beyond the period 
of limitation and is not maintainable in law. Moreover, the final 
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SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
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award ofRs.8 crores is granted in favour of the petitioner by the 
Arbitrator." 
4. We have heard learned counsel for the parties. Shri B.H. 
Marlapalle, learned senior counsel appearing on behalf of the appellant, 
has argued that Sections 9 and 17 being alternative remedies available 
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to the parties before the Tribunal, if orders made under Section-17 were 
unenforceable, they would be mere ropes of sand as a result of which 
the provision would be rendered otiose. He also argued that Section 27 
of the Act does not leave any doubt as to the scope and ambit of the 
Court's power to punish for contempt of orders made by the Arbitral 
Tribunal. He relied upon a Delhi High Court judgment, and a judgment 
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delivered by this Court reported in 2007 ( 13) SCC 220. 
5 .On the other hand, Shri Rana Mukherjee, learned senior counsel 
appearing on behalf of the respondent, has supported the High Court 
judgment. However, he very fairly states before us that he does not 
support the High Court judgment on the aspect oflimitation. According 
D 
to him, the marginal note of Section 27 makes it clear that Section 27(5) 
would only apply to assistance in taking evidence and not to any other 
contempt that may be committed. According to him, this lacuna in the 
law has now been filled pursuant to the 246'h Law Commission Report, 
which he has referred to and relied upon, after which Section 17(2) has 
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been inserted by the Amendment
Act of 2015. 
6. Having heard learned counsel for the parties, we first set out 
the relevant statutory provisions as under: 
9. Interim measures, etc. by Court -(I) A party may, before, or 
during arbitral proceedings or at any time after the making of the arbitral 
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award but before it is enforced in accordance with section 36, apply to a 
court: 
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(i) for the appointment of a guardian for a minor or person of 
unsound mind for the purposes of arbitral proceedings; or 
(ii) for an interim measure of protection in respect of any of the 
following matters, namely: 
(a) the preservation, interim,custody or sale of any goods, which 
are the subject matter of the arbitration agreement; 
(b) securing the amount in dispute in the arbitration;
ALKA CHANDEWAR v. SHAMSHUL ISHRAR KHAN 
537 
[R. F. NARIMAN, J.] 
(c) the detention, preservation or inspection of any property or A 
thing which is the subject-matter of the dispute in arbitration, or 
as to which any question may arise therein and authorising for 
any of the aforesaid purposes any person to enter upon any land 
or building in the possession of any party, or authorising any samples 
to be taken or any observation to be made, or experiment to be 
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tried, which may be necessary or expedient for the purpose of 
obtaining full information or evidence; 
(d) interim injunction or the appointment of a receiver; 
( e) such other interim measure of protection as may appear to the 
court to be just and convenient, 
c 
and the Court shall have the same power for making orders as it 
has for the purpose of, and in relation to, any proceedings before 
it. 
[(2) Where, before the commencement of the arbitral proceedings, 
a Court passes an order for any interim measure of protection 
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under sub-section (1 ), the arbitral proceedings shall be commenced 
within a period of ninety days from the date of such order or 
within such further time as the Court may determine. 
(3) Once the arbitral tribunal has been constituted, the Court 
shall not entertain an application under sub-section (I), unless the 
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Court finds that circumstances exists which may not render the 
remedy provided under section 17 efficacious.] 
17. Interim measures ordered by arbitral tribunal- [(!)A
party 
may, during the arbitral proceedings or at any time after the making 
of the arbitral award but before it is enforced in accordance with 
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section 36, apply to the arbitral tribunal-
(i) for the .appointment of a guardian for a minor or person of 
unsound mind for the purposes of arbitral proceedings; or 
(ii) for an interim measure of protection in respect of any of the 
following matters, namely:-
( a) the preservation, interim custody or sale of any goods which 
are the subject matter of the arbitration agreement; 
(b) securing the amount in dispute in the arbitration; 
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SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
( c) the detention, preservation or inspection of any property or 
thing which is the subject matter of the dispute in arbitration, or as 
to which any question may arise therein and authorising for any 
of the aforesaid purposes any person to enter upon any land or 
building in the possession of any party, or authorising any samples 
to be taken, or any observation to be made, or experiment to be 
tried, which may be necessary or expedient for the purpose of 
obtaining full information or evidence; 
( d) interim injunction or the appointment of a receiver; 
( e) such other interim measure of protection as may appear to 
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the arbitral tribunal to be just and convenient, 
and the arbitral tribunal shall have the same power for making 
orders, as the court has for the purpose of, and in relation to, any 
proceedings before it. 
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(2) Subject to any orders passed in an appeal under section 37, 
any order issued by the arbitral tribunal under this section shall be 
deemed to be an order of the Court for all purposes and shall be 
enforceable under the Code of Civil Procedure, 1908 (5of1908), 
in the same manner as if it were an order of the Court.] 
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27. Court assistance in taking evidence-( l) The arbitral tribunal, 
or a party with the approval of the arbitral tribunal, may apply to 
the court for assistance in taking evidence. 
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(2) the application shall specify-
( a) the names and addresses of the parties and
the arbitrators; 
(b) the general nature of the claim and the relief sought; 
( c) the evidence to be obtained, in particular, -
(i) the name and address of any person to be heard as witness or 
expert witness and a statement of the subject-matter of the 
testimony required; 
(ii) the description of any document to be produced or property 
to be inspected.
ALKA CHANDEWAR v. SHAMSHUL ISHRAR KHAN 
539 
[R. F. NARIMAN, J.] 
(3) The Court may, within its competence and according to its 
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rules on taking evidence, execute the request by ordering that the 
evidence be provided directly to the arbitral tribunal. 
(4) The Court may, while making an order under sub-section (3), 
issue the same processes to witnesses as it may issue in suits 
tried before it. 
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(5) Persons failing to attend in accordance with such process, or 
making any other default, or refusing to give their evidence, or 
guilty of any contempt to the arbitral tribunal during the conduct 
ofarbitral proceedings, shall be subject to the like disadvantages, 
penalties and punishments by order of the court on the c 
representation of the arbitral tribunal as they would incur for the 
like offences in suits tried before the Court. 
(6) In this section the expression "Processes" includes summonses 
and commissions for the examination of witnesses and summonses 
to produce documents. 
D 
7. If Section 27(5) is read literally, there is no difficulty in accepting 
the plea of learned senior advocate for the appellant, because persons 
failing to attend in accordance with the court process fall under a separate 
category from "any other default". Further, the Section is not confined 
to a person being guilty of contempt only when failing to attend in 
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ac.cordance with such process. The Section specifically states that persons 
guilty ofany contempt to the Arbitral
Tribunal during the conduct of the. 
Arbitral proceedings is within its ken. The aforesaid language is, in fact, 
in consonance with the Chapter heading of Chapter V, "Conduct of arbitral 
proceedings". Further, it is well settled that a marginal note can be used 
as an internal aid to interpretation of statutes only in order to show what 
F 
is the general drift of the section. It may also be resorted to when the 
plain meaning of the section is not clear. In the present case we must go 
by the plain meaning of sub-section (5). This being the case, we find it 
difficult to appreciate the reasoning of the High Court. Also, in 
consonance with the modem rule of interpretation of statutes, the entire 
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object of providing that a party may approach the Arbitral Tribunal instead 
of the Court for interim reliefs would be stultified ifinterim orders passed 
by such Tribunal are toothless. It is to give teeth to such orders that an 
express provision is made in Section 27(5) of the Act. 
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SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
8. In fact, the Delhi High Court by the judgment dated 18
11' 
August, 2009, reported in 2009 (112) Delhi Reported Judgments 657, 
has correctly construed Section 27(5) of the Act. Further, it must be 
remembered that this Court in Mis Ambalal Sarabhai Enterprises vs. M/ 
s Amrit Lal & Co. & Anr. (2001) 8 SCC 397 has held that parties to 
arbitration proceedings are put to an election as to whether to apply for 
interim relief before the Tribunal under Section 17 or before the Court 
under Section 9. Such election would be meaningless ifinterim orders 
passed by the Arbitral Tribunal were to be written in water, as all parties 
would then go only to the Court, which would render Section 17 a dead 
letter. 
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9. Coming to Shri Rana Mukherjee's submission that sub-section 
(2) of Section 17 introduced by the 2015 Amendment Act now provides 
for the necessary remedy against infraction of interim orders by Tribunal, 
suffice it to state that the Law Commission itself, in its 246'" report, 
found the need to go one step further than what was provided in Section 
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27(5) as construed by the Delhi High Court (supra). The Commission, 
in its report, had this to say: 
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POWERS OF TRIBUNAL TO ORDER INTERIM MEASURES 
46. Under section 17, the arbitral tribunal has the power to order 
interim measures of protection unless the parties have excluded such 
power by agreement. Section 17 is an important provision, which is 
crucial to
the working of the arbitration system, since it ensures that 
even for the purposes of interim measures, the parties can approach the 
arbitral tribunal rather than await orders from a Court. 
The efficacy of section 17 is however, seriously compromised 
given the lack of any suitable statutory mechanism for the enforcement 
of such interim orders of the arbitral tribunal. 
47. In Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 
SCC 479, the Supreme Court observed that though section 17 gives the 
arbitral tribunal the power to pass orders, the same cannot be enforced 
as orders of a court and it is for this reason only that section 9 gives the 
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court power to pass interim orders during the arbitration proceedings. 
Subsequently, in M.D. Army Welfare Housing Organisation v. 
Sumangal Services Pvt. Ltd., (2004) 9 SCC 619 the Court had held 
that under section 17 of the Act no power is conferred on the arbitral 
tribunal to enforce its order nor does it provide for judicial enforcement 
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thereof.
ALKA CHANDEWAR v. SHAMSHUL ISHRAR KHAN 
541 
[R. F. NARIMAN, J.] 
48. In the face ofsucli c~tegorical judicial opinion, the Delhi 
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High Court attempted to find a suitable legislative basis for enforcing the 
orders of the arbitral tribunal under Section 17 in the case of Sri Krishan 
v. Anand, (2009) 3 Arb LR 447 (Del) (followed in Indiabulls Financial 
Services v. Jubilee Plots, OMP Nos.452-453/2009 Order dated 
18.08.2009). The Delhi High Court held that any person failing to comply 
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with the order of the arbitral tribunal under section 17 would be deemed 
to be "making any other default" or "guilty" of any contempt to the 
arbitral tribunal during the conduct of the proceedings" under section 
27(5) of Act. The remedy of the aggrieved party would then be to apply 
to the arbitral tribunal for making a representation to the Court to mete 
out appropriate punishment. Once such a representation is received by 
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the Court from the arbitral tribunal, the Court would be competent to 
deal with such party in default as if it is in contempt of an order of the 
Court, i.e., either under the provisions of the Contempt of Courts Act or 
under the provisions of Order 39 Rule 2A Code of Civil Procedure, 
1908. 
49. The Commission believes that while it is important to provide 
teeth to the interim orders of the arbitral tribunal as well as to provide for 
their enforcement, the judgment of the Delhi High Court in Sri Krishan 
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v. Anand is not a complete solution. The
Commission has, therefore, 
recommended amendments to section 17 of the Act which would give 
teeth to the orders of the Arbitral Tribunal and the same would be 
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statutorily enforceable in the same manner as the Orders of a Court. In 
this respect, the views of the Commission are consistent with (though do 
not go as far as) the 2006 amendments to Article 17 of the UNCITRAL 
Model Law. 
10. Pursuant to this report, sub-section(2) to Section 17 was 
added by the Amendment Act 2015, so that the cumbersome procedure 
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of an Arbitral Tribunal ·having to apply every time to the High Court for 
contempt of its orders would no longer be necessary. Such orders would 
now be deemed to be orders of the Court for all purposes and would be 
enforced under the Civil Procedure Code, 1908 in the same manner as if G 
they were orders of the Court. Thus we do not find Shri Rana 
Mukherjee's submission to be of any substance in view of the fact that 
Section 17(2) was enacted for the purpose of providing a "complete 
solution" to the problem. 
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SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
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11.Accordingly, we allow the appeal and set aside the judgment 
of the Bombay High Court. The matter is remanded to decide the alleged 
contempt on facts. It would be open for the respondent to argue before 
the High Court that he has, on the facts of the case, not committed any 
contempt. 
Nidhi Jain 
Appeal allowed.