Arbitrator has no power to appoint advocate commissioner for collecting evidence, power under section 17 subject to bar in sections 26 and 27: Kerala high court

Kerala High Court Rules Arbitrators Cannot Appoint Advocate Commissioners for Evidence Collection; Legal Powers Limited Under Section 17, as Barred by Sections 26 and 27.

Case Title: DLF Southern Towns Pvt. Ltd. v. Aditya Deo and Anr.

Citation: (2026) ibclaw.in 4484 HC

Coram: Justice Easwaran S.

The Kerala High Court has held that an Arbitral Tribunal does not have the power to appoint an advocate commissioner to collect evidence, and that the power to grant interim measures under Section 17 of the Arbitration and Conciliation Act, 1996 cannot be used to bypass the bar contained in Sections 26 and 27 of the Act.

The dispute arose out of an agreement for sale of an apartment, under which the claimants sought a direction to the petitioner to convey the undivided share of land proportionate to the super area of their apartment, out of a total extent of 24.63 acres. During the pendency of the claim, the claimants sought appointment of an advocate commissioner to report on various points, including measurement of the extent of land. The petitioner objected that the Arbitrator lacked jurisdiction to entertain such an application in view of the bar under Sections 26 and 27 of the Act. The Arbitrator overruled the objection and appointed an advocate commissioner in exercise of power under Section 17. An appeal under Section 37 before the Commercial Court, Ernakulam was dismissed, affirming the Arbitrator's order, leading to the original petition under Article 227 of the Constitution.

On maintainability, the respondents argued that no further challenge lay against an order passed in an appeal under Section 37, relying on Manash Kamal Bezboruah v. Bokahola Tea Company Private Limited, 2026 SCC OnLine SC 1330. The Court held that the power under Article 227 cannot be curtailed or circumvented by any statute, and that the bar under Section 37(3) against a second appeal does not extend to proceedings under Article 227. The petition was accordingly held maintainable.

On merits, the Court referred to its earlier decision in Punarnava Ayurveda Hospital Pvt. Ltd. v. Arbitrator for NH 66 and District Collector, 2023 KLT OnLine 2081, which held that an Arbitral Tribunal cannot appoint an advocate commissioner either under Section 26 or Section 27 of the Act, and can at most appoint an expert under Section 26. The Court held that this bar cannot be circumvented by invoking Section 17, since the power to grant interim relief under Section 17 is subject to the exceptions specified under Section 26. It found that the attempt to appoint an advocate commissioner to measure the entire extent of 24.63 acres was, in substance, an attempt to conduct a roving inquiry and collect evidence for adjudication of the claim, which was impermissible.

On the argument that the order was not amenable to challenge under Article 227 in view of Deep Industries v. Oil and Natural Gas Corporation Limited, (2020) 15 SCC 706, the Court noted that the petitioner had exhausted the alternate remedy under Section 37, and referred to its decision in Purushothaman Thitta v. Pothan Rajan, 2026 KHC OnLine 414, which had delineated the circumstances in which a petition under Article 227 would lie against an order of an arbitrator.

The Court further held that the real dispute, whether the claimants were entitled to transfer of the undivided share over the entire extent of the land, could be decided on interpretation of the documents and the agreement of sale, without requiring measurement of the property through a commissioner. The original petition was accordingly allowed, and the Arbitrator's order dated October 9, 2025 and the Commercial Court's order dated February 21, 2026 were set aside, with the application for appointment of an advocate commissioner being dismissed. The Arbitrator was left free to proceed with the claim in accordance with law.