Interim measures decide the shape of many real estate arbitrations long before any award. In Forum Projects Private Limited v. Gaurav Karnani, APO 11 of 2026 (2026:CHC-OS:413), decided on 24 September 2026, the Calcutta High Court dismissed a developer’s appeal under Section 37 of the Arbitration and Conciliation Act, 1996 against an arbitrator’s interim order that appointed an independent surveyor and restrained alteration of common areas in a luxury residential complex. The judgment maps the limited terrain of Section 37(2)(b) review — and confirms that arbitrability objections belong first to the tribunal.
The order under appeal
The arbitral tribunal, seized of the apartment holders’ claims, did three things. It appointed an independent surveyor to record the physical state of the penthouses, E-Deck and common areas — converting a shouting match about construction into a documented factual record. It directed status quo, restraining alteration of common areas pending adjudication. And it deferred the developer’s objections to maintainability and arbitrability, to be decided by the tribunal itself under Section 16. The developer’s appeal under Section 37 attacked all three; Justice Gaurang Kanth sustained all three.
Three principles the judgment applies
Real estate disputes and the arbitrability question
Developers frequently argue that disputes touching RERA, municipal sanction plans or common-area rights cannot be arbitrated. The objection is serious but sequenced: the tribunal examines it first, and its ruling travels to court either immediately (if the tribunal declines jurisdiction) or with the award. What a party cannot do is use the objection to paralyse interim protection — otherwise every arbitration could be stripped of teeth by pleading a statutory overlay. The Calcutta approach keeps the ring held while the jurisdictional question is decided in its proper forum.
| Stage | Forum | Provision |
|---|---|---|
| Interim protection during arbitration | Arbitral tribunal (or court where tribunal relief is inefficacious) | Sections 17 and 9 |
| Objection to jurisdiction/arbitrability | The tribunal itself, first | Section 16 |
| Appeal against grant/refusal of interim measures | Court — narrow review | Section 37(2)(b) |
| Challenge to the eventual award (including on arbitrability) | Court | Section 34 |
For Delhi practitioners, the template transfers directly: DIAC and ad hoc tribunals seated in Delhi routinely appoint local commissioners and surveyors in construction and real-estate matters, and the Delhi High Court’s Section 37 jurisprudence applies the same restrained standard. The practical lesson for parties resisting interim measures is to fight them on their own terms — balance of convenience, irreparability, proportionality — rather than through jurisdictional objections the tribunal is yet to decide.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What was the underlying dispute?
Apartment holders in the developer’s "Atmosphere" project alleged that construction on penthouses and an E-Deck apartment violated their rights over common areas under their 2022 sub-lease. They invoked arbitration and obtained interim protection from the tribunal: an independent surveyor to establish the physical facts, and status quo on the disputed areas.
On what basis did the developer appeal?
Principally that the claims were not arbitrable — engaging RERA and municipal-law questions — and that the tribunal’s measures were unjustified. The court held the tribunal had properly deferred maintainability and arbitrability for decision under Section 16, and that the interim measures were procedurally sound and not perverse.
How wide is appellate review under Section 37(2)(b)?
Narrow. The appellate court asks whether the tribunal applied the correct principles and reached a plausible view — not whether it would have ordered differently. Interference is reserved for perversity, jurisdictional error or disregard of settled principles governing interim relief.
Can an arbitrator appoint a surveyor or commissioner?
Yes. Section 17 empowers tribunals to order interim measures including preservation, inspection and the taking of evidence-related protective steps; fact-finding through an independent expert to hold the ring is a recognised, minimally invasive measure — which is why the court found no fault with it.