A&C Act| Judge's Prior Interim Order U/S 9 No Ground For Recusal From Petition U/S 34: Sikkim High Court
Dismissing a revision petition filed by the State under Section 115 CPC, the Court held that a presiding officer who granted interim relief under Section 9 is not required to automatically recuse from deciding a Section 34 application arising out of the same arbitration.
The Sikkim High Court has held that a judge who previously decided an application for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 is not automatically disqualified from subsequently hearing a challenge to the arbitral award under Section 34 of the Act. It noted that unless a litigant establishes a real and reasonable apprehension of bias, an application for recusal cannot be entertained on the mere ground that the judge expressed a prima facie view on the merits during interim proceedings.
The Bench further held that a revision petition under Section 115 of the CPC is not maintainable against an interlocutory order refusing recusal, as allowing the plea would merely change the presiding judge rather than finally dispose of the suit or proceedings.
A Single Bench of Justice Bhaskar Raj Pradhan observed, “…the learned Judge who decided the application under Section 9 of the Arbitration Act does not have to automatically recuse from subsequently hearing the appeal under section 34 arising from the same arbitration unless the State of Sikkim is able to demonstrate a real and reasonable apprehension of bias. If an application for recusal is permitted on the mere asking on the ground that the learned Judge had decided one way or the other earlier on an application under Section 9 of the Arbitration Act, it would lead to the party choosing their Judge which would not be proper for administration of justice. An application under Section 9 and an appeal under Section 34 of the Arbitration Act involves different inquiries. Section 9 deals with interim and protective measures while Section 34 is an appeal to set aside the award under limited statutory grounds”.
Zangpo Sherpa, Additional Advocate General appeared for the petitioner and Advocate K.D. Bhutia appeared for the respondent.
The dispute stems from a lease agreement concerning the Hotel Norkhil campus in Gangtok. In May 2021, the respondent, Nimmi Oberoi, filed an application under Section 9(ii) of the Arbitration Act before the Commercial Court, East Sikkim at Gangtok, seeking interim protection. On May 31, 2021, the Commercial Court granted an injunction restraining the State of Sikkim from disturbing the respondent's possession until the commencement of arbitration.
Though the High Court initially set aside the injunction on appeal, the Supreme Court subsequently intervened, set aside the High Court's ruling, and appointed a sole arbitrator. The arbitrator passed an award on December 5, 2022, against the State of Sikkim. The State then filed an application under Section 34 of the Arbitration Act to set aside the award before the Commercial Court at Gangtok.
Due to the initial presiding judge recusing himself because his spouse was representing the respondent, the High Court administratively transferred the case to the Commercial Court at Mangan.
However, the State of Sikkim sought the recusal of the Presiding Officer at Mangan on the ground that he was the same judge who had passed the interim injunction against the State under Section 9 in May 2021. After the Commercial Court at Mangan rejected the recusal plea on April 13, 2026, the State approached the High Court in revision under Section 115 CPC.
On the Supreme Court's precedents including DLF Housing & Construction Co. Pvt. Ltd. v. Sarup Singh (1972) SCR 368 and Tek Singh v. Shashi Verma & Anr. Civil Appeal No.1416 of 2019, the High Court emphasized that the 1999 Amendment to Section 115 CPC bars revisions against interlocutory orders.
“The impugned order of refusal to recuse from the case even if it was decided in favour of the State of Sikkim would not have disposed of the suit or other proceedings. All that it would result in would be a change of the Presiding Officer or the Court. However, neither the suit nor other proceeding would be disposed of. Therefore, I am in agreement with the objection raised by the learned Counsel for the respondent that this is not a case in which the revisional powers under Section 115 of the CPC ought to be exercised”, it noted.
The Bench noted that while Section 9 involves interim protective measures based on prima facie observations, Section 34 deals with setting aside awards on limited statutory grounds. Citing Neelam Manmohan Attavar v. Manmohan Attavar (dead) through Legal Representatives (2021) 3 SCC 727, the Bench held that prior adverse orders do not constitute grounds for recusal, and litigants cannot be permitted to seek a bench of their choice.
Observing that the judge had explicitly limited his earlier Section 9 analysis to a prima facie view without making conclusive findings on the arbitral award's validity, the Court dismissed the revision petition.
Cause Title: State of Sikkim v. Nimmi Oberoi (CRP No. 6 of 2026)
Appearances:
Petitioner: Zangpo Sherpa, Additional Advocate General.
Respondent: Debarshi Dutta (through V.C.) with K.D. Bhutia, Advocates.