Introduction
In Manash Kamal Bezboruah v. M/s Bokahola Tea Company Private Limited & Ors. (2026 INSC 701), decided on 14 July 2026, the Supreme Court of India held that an arbitral tribunal’s order rejecting a jurisdictional objection under Section 16 of the Arbitration and Conciliation Act, 1996 cannot ordinarily be challenged before a High Court under Article 227 of the Constitution.
The Bench of Justice K.V. Viswanathan and Justice Vijay Bishnoi, in a judgment written by Justice Bishnoi, held that the proper remedy is a challenge under Section 34 of the Act after the final award is made. The ruling matters for two reasons. It restates the high “patent lack of inherent jurisdiction” test for Article 227 petitions. It also applies that test to a question that is contested more and more often in Indian arbitration: whether companies that never signed an arbitration agreement can be bound by it.
Background: A Family Partnership Dispute That Passed Through Three Forums
The dispute arose from M/s Boloma Tea Company, a family partnership firm formed in 1948. Under a partnership deed dated 16 November 1976, the appellant held a 25% share. He was an IAS officer who had obtained the Government of India’s permission in 1974 to become a sleeping partner. Clause 5 of the deed said that any dispute among the partners would first go to the other partners. If it remained unresolved, it would go to “the arbitration of mutually agreed third party.”
Three private companies were central to the dispute: M/s Bokahola Tea Company Pvt. Ltd. and M/s Kasojan Tea Company Pvt. Ltd., both incorporated in 1967 under the Companies Act, 1956, and M/s Bokahola Investment Pvt. Ltd., incorporated in 1995. None of them signed the partnership deed. The appellant later argued that these companies were incorporated with money borrowed from the firm.
In 2012, the appellant filed Title Suit No. 38 of 2012 before the Civil Judge (Senior Division), Jorhat. He sought rendition of accounts and alleged mismanagement and financial irregularities. One defendant applied under Section 8 of the Act to have the dispute referred to arbitration. On 7 August 2014, the Trial Court rejected that application. It relied on Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya (2003) 5 SCC 531 and held that a suit cannot be split up where necessary defendants are not parties to the arbitration agreement.
The Gauhati High Court upheld that view on 1 November 2021. The matter then reached the Supreme Court as Civil Appeal No. 13188 of 2024. Mediation at the Supreme Court Mediation Centre failed. On 21 November 2024, with the parties’ consent, the Court referred the disputes to arbitration and appointed Justice (Retd.) B.P. Katakey as Sole Arbitrator. The appointment was subject to the disclosure requirements of Section 12 and the fee structure in the Fourth Schedule. The three companies had been made parties to that appeal and were served, but they did not contest it.
How the Jurisdictional Objection Reached the High Court
Once the arbitration began, the three companies applied to the tribunal to have their names deleted from the array of parties. They filed under Order VII Rule 11 read with Order I Rule 10(2) and Section 151 of the Code of Civil Procedure, 1908. The Supreme Court later treated these applications, correctly, as jurisdictional objections under Section 16 of the Act.
On 9 June 2025, the tribunal framed issues. These included whether the proceedings were maintainable against non-signatories, whether the claims were barred by Section 69 of the Indian Partnership Act, 1932 or by limitation, and whether the claims of oppression and mismanagement could be heard only by the forums set up under the Companies Act, 2013.
On 4 August 2025, the tribunal nonetheless rejected the deletion applications. It gave two reasons. First, the “group of companies” doctrine was settled law. Second, the Supreme Court’s consent reference had left the tribunal no room to reconsider whether the non-signatories were bound.
The companies then filed a Civil Revision Petition (CRP/120/2025) under Article 227 before the Gauhati High Court. On 2 September 2025, the High Court stayed the tribunal’s notices to them and allowed the rest of the arbitration to continue. On 28 January 2026, it rejected the appellant’s objection that the petition was not maintainable. It relied on Deep Industries Ltd. v. ONGC (2020) 15 SCC 706 and Punjab State Power Corporation Ltd. v. Emta Coal Ltd. (2020) 17 SCC 93.
Its reasoning was that the Supreme Court’s consent order said nothing about the group of companies doctrine, so a plea of inherent lack of jurisdiction could not be dismissed at the threshold. The Supreme Court stayed both High Court orders on 16 February 2026. On 19 March 2026, it allowed the companies’ application for exemption from participating and asked the arbitrator to consider adjourning the proceedings beyond 20 April 2026.
Competing Submissions Before the Supreme Court
The appellant argued that the three companies were “veritable parties” under the Constitution Bench ruling in Cox and Kings Ltd. v. SAP India Pvt. Ltd. (2024) 4 SCC 1. He pointed to the relationships between the parties, the shared subject matter and the companies’ funding from the firm. He also argued that, having stayed silent before the Supreme Court, the companies were estopped from attacking the consent reference.
He relied on the 101st Report of the Law Commission of India to argue that allowing a challenge to a rejected Section 16 plea before the award would defeat the statutory scheme. He cited Associate Builders v. DDA (2015) 3 SCC 49 and M/s Tarini Prasad Mohanty v. M/s Sunflag Iron and Steel Company Limited (2026 INSC 566) to show that no perversity had been demonstrated. He added that the High Court had given no reasons on that point.
The companies argued that the appellant was approbating and reprobating. In the civil suit, he had argued that they were not parties to the arbitration agreement, and he had defeated the Section 8 application on exactly that basis. They argued that they did not meet the Cox and Kings test, and that the consent order bound only the parties who actually consented. They also argued that the defendant who consented had no board resolution authorising it to consent on their behalf. Finally, they submitted that a tribunal assuming jurisdiction merely because a party did not appear before the Supreme Court fell within the “narrow band of perversity” that justifies interference under Article 227.
The Statutory Scheme: Section 5, Section 16 and Section 34
The Court began with the architecture of the Act, describing it as “a Code in itself.” The Court stressed that this phrase has real legal consequences. The main one appears in Section 5. It is a non-obstante clause that bars judicial intervention in matters governed by Part I of the Act except where the Act itself provides for it. The clause reflects Parliament’s decision to adopt the UNCITRAL Model Law and its policy of limiting court interference.
Section 16 gives statutory effect to the doctrine of kompetenz-kompetenz, which allows the tribunal to rule on its own jurisdiction, including objections about the existence or validity of the arbitration agreement. The provision builds in a deliberate asymmetry. Under Section 16(5), when the tribunal rejects a jurisdictional plea, it must continue the proceedings and make an award. Section 16(6) then allows the aggrieved party to raise the objection in a Section 34 application to set aside the award.
By contrast, Section 37(2)(a) allows an immediate appeal only when the tribunal accepts a plea under Section 16(2) or 16(3). This distinction is intentional. An order accepting a jurisdictional objection ends the arbitration, so it must be open to immediate review. An order rejecting the objection only postpones scrutiny until the award, so the arbitration can proceed without interruption.
Article 227 Survives Section 5, but Only in Exceptional Cases
The Court accepted that the High Courts’ supervisory power over courts and tribunals under Article 227 forms part of the basic structure of the Constitution and cannot be excluded by legislation. Section 5 therefore cannot remove that constitutional jurisdiction. The Court held, however, that the existence of the power does not justify using it routinely against orders made during an arbitration.
To support this, the Court relied on a consistent line of precedent. In SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 618, the Constitution Bench expressly disapproved of High Courts treating every order of an arbitral tribunal as open to correction under Articles 226 or 227. It held that once arbitration has begun, parties must wait for the award unless Section 37 gives them a right of appeal. In Deep Industries, the Court confirmed that Article 227 is untouched by Section 5. It nonetheless confined interference to orders “patently lacking in inherent jurisdiction.”
A three-judge Bench in Punjab State Power Corporation Ltd. then explained what that standard means. A petition to a writ court against the dismissal of a Section 16 application can succeed only if the order is so perverse that the only possible conclusion is a patent lack of inherent jurisdiction. Such a defect “requires no argument whatsoever” and must “stare one in the face.” In that case, the Court also criticised parties for misusing the Deep Industries formulation and said that High Courts should dismiss such petitions promptly, and could impose heavy costs.
The Court also relied on its recent decision in Tarini Prasad Mohanty, which drew on Godrej Sara Lee Ltd. v. Excise and Taxation Officer to distinguish between whether a writ petition is maintainable and whether the court should entertain it. An alternative statutory remedy does not make a writ petition non-maintainable. However, when the enactment provides a remedy under Section 34 and expects minimal interference under Section 5, the threshold for exercising writ discretion at an interim stage is higher. This distinction explains how the present ruling works. The Court did not declare Article 227 petitions against arbitral orders legally barred. It held that a High Court should not entertain them unless a manifest jurisdictional defect is shown.
A Procedural Requirement for High Courts: A Prima Facie Finding After Hearing Both Sides
The most practical part of the judgment is in paragraph 30. The Court said that before a High Court entertains a revision petition under Article 227 against an order made under Section 16, it should record a prima facie finding of patent lack of inherent jurisdiction. It should do so only after giving the opposing parties a hearing.
The Gauhati High Court had done neither. Its interim order of 2 September 2025 stayed the notices issued to the three companies without any such finding. Its order of 28 January 2026 upheld maintainability because the plea of inherent lack of jurisdiction “cannot be totally negated at this stage.” The Supreme Court held that this standard was the reverse of the correct one. The question is not whether a jurisdictional plea can be ruled out. The question is whether a patent defect is apparent on the face of the order.
Non-Signatories and Kompetenz-Kompetenz After Cox and Kings
On the substance of the jurisdictional objection, the Court relied on Cox and Kings. There, the Constitution Bench held that deciding whether a non-signatory is a veritable party to an arbitration agreement requires a detailed inquiry into facts, circumstances and law. At the referral stage, the court only has to be satisfied, prima facie, that an arbitration agreement exists. Whether the non-signatory is actually bound is a question for the arbitral tribunal. The Court held that this allocation gives real effect to kompetenz-kompetenz under Section 16. It concluded that the tribunal had “absolute competence” to decide whether the three companies were veritable parties despite not having signed the deed.
This reasoning led to the answer in the case. A tribunal that decides whether a non-signatory is bound is doing exactly what Section 16 authorises. Even if its reasoning on that question is open to debate, the decision cannot amount to an inherent lack of jurisdiction. Here, the High Court’s concern was that the tribunal had treated the consent order as settling the question. At most, that was a challenge to the tribunal’s reasoning, not to its authority to decide the question. Such a challenge belongs in a Section 34 proceeding.
Silence Before the Supreme Court and Collateral Challenges
The Court was also critical of the companies’ conduct. They had been parties to Civil Appeal No. 13188 of 2024 and had been served, yet they neither contested the appeal nor, at any point, sought a modification or review of the order of 21 November 2024. The Court held that if they believed the consent order prejudiced them, the correct course was to seek modification or review before the Supreme Court. They could not raise the objection later through a revision petition in the High Court. The Court observed that this approach caused an avoidable round of litigation and that repeated judicial interventions of this kind undermine the purpose of the Act.
The Court did not decide the approbate-and-reprobate argument, the question of the consenting defendant’s authority, or whether the companies met the Cox and Kings test. It left all of these issues to the tribunal.
Final Directions of the Court
The Supreme Court set aside the High Court’s orders of 2 September 2025 and 28 January 2026 and dismissed the revision petition. It held that the remedy against the rejection of a Section 16 application lies strictly under Section 34 after the final award. The tribunal had already framed specific issues on the non-signatory objection. The Court therefore directed it to decide the status of the three companies independently and uninfluenced by the Supreme Court’s judgment, and to complete the arbitration expeditiously in accordance with law.
This direction matters. The consent order of 21 November 2024 will not be treated as having conclusively bound the non-signatory companies. The tribunal must decide their status on the merits under the Cox and Kings framework. If the companies are aggrieved by the final award, they keep their right to challenge the tribunal’s jurisdictional finding under Section 34, as Section 16(6) expressly allows.
Conclusion
The judgment in Manash Kamal Bezboruah v. Bokahola Tea Company confirms that the constitutional survival of Article 227 does not permit a jurisdictional objection to be litigated in parallel while an arbitration is pending. When a tribunal rejects a Section 16 plea, including a plea by a non-signatory that it is not a veritable party, the objection must wait for the award and be raised under Section 34.
It can come before a High Court earlier only in the rare case where the order shows a patent lack of inherent jurisdiction, and only after the High Court records a prima facie finding to that effect having heard both sides. The ruling brings together the reasoning of SBP & Co., Deep Industries, Punjab State Power Corporation Ltd., Cox and Kings and Tarini Prasad Mohanty into a consistent position that respects both the constitutional power of the High Courts and the minimal-intervention policy of the Arbitration and Conciliation Act, 1996.
The limits of court intervention in arbitration also intersect with issues of Cross-Border Legal Privilege in International Arbitration, particularly where procedural and evidentiary questions arise.
