Quick answer: In Forum Projects Private Limited v. Gaurav Karnani & Ors., 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 arbitral tribunal’s order appointing a surveyor and restraining any change to the common areas of a residential condominium, “Atmosphere,” pending arbitration. The developer argued the dispute was non-arbitrable because it fell within the Real Estate (Regulation and Development) Act, 2016, and that the tribunal ought to have decided that objection before granting any interim relief. The Court expressly declined to rule on arbitrability itself, holding that question belongs to the tribunal under Section 16, and found nothing illegal or perverse in the tribunal granting limited, status-quo-preserving measures under Section 17 while that objection remained pending.
1. Introduction
Residential developments sold as condominiums or “sub-leased” apartments routinely generate two overlapping kinds of dispute: a regulatory one, over whether construction matches the plan sanctioned by the municipal authority and registered with the Real Estate Regulatory Authority (RERA), and a private one, over what a particular buyer’s agreement entitles them to. Forum Projects Private Limited v. Gaurav Karnani & Ors., decided by a Single Judge of the Calcutta High Court’s Original Side on 24 September 2026, sits at the intersection of both, and adds a further layer: the buyers’ agreement in this case carried an arbitration clause, so the private dispute was already before an arbitral tribunal when the developer challenged the tribunal’s interim orders in the High Court.
The developer, Forum Projects Private Limited, had constructed two penthouses and an additional apartment on a project called “Atmosphere,” beyond what its buyers said the original common-area allocation contemplated. The buyers — sub-lessees of an apartment in the same tower — sought, and obtained from the arbitral tribunal, an order appointing a surveyor to inspect the disputed construction and restraining the developer from further altering the common areas, while a threshold objection that the dispute was not arbitrable at all remained undecided. The developer’s appeal turned on two connected propositions: that RERA’s regulatory scheme ousts arbitration over disputes of this kind, and that, even if arbitrable, the tribunal could not lawfully grant interim relief without first ruling on that objection. This article sets out the facts, the Court’s reasoning on the relationship between Sections 16 and 17 of the Arbitration and Conciliation Act, what the judgment leaves open on the RERA-arbitration question, and what the case means for developers, homebuyers, and the drafting of buyer agreements for multi-owner developments.
2. Case summary and background
Forum Projects Private Limited developed “Atmosphere — The Luxurious Condominium,” a two-tower residential complex on the Eastern Metropolitan Bypass in Kolkata, built on land held under a registered Deed of Lease from the Kolkata Municipal Corporation (KMC) dated 17 April 2010. The building plan, sanctioned by the KMC and revised over time, eventually permitted, among other things, two penthouses on the top floors of the two towers and an additional apartment — described in the judgment as the “E-Deck” apartment — on a level between them. By a registered Indenture of Sub-Lease dated 23 September 2022, the developer sub-let Apartment No. B-205 in the East Tower to the respondents, Gaurav Karnani and others.
The main structure was completed by December 2018; the penthouses and the E-Deck apartment were built later, with the E-Deck apartment substantially complete by December 2018 and the penthouses by mid-2024. The E-Deck apartment and one penthouse were subsequently sub-let or assigned to other parties, and the second penthouse was under an agreement to sub-let to a further party — none of whom were before the arbitral tribunal or the High Court in these proceedings.
In December 2024, the respondents invoked Section 9 of the Arbitration and Conciliation Act, 1996 before the District Judge, South 24-Parganas, seeking an injunction against further construction and against creating third-party interests in the penthouses and the E-Deck apartment, relying on their registered Sub-Lease Deed. An ad-interim and then a final order granted that injunction; the developer’s appeal against it led, by consent, to the appointment of a sole Arbitrator. The respondents then filed a Statement of Claim before the Arbitral Tribunal seeking declarations that the developer’s construction of the penthouses and the E-Deck apartment was unauthorised and violated their Sub-Lease Deed, a mandatory injunction to demolish it and restore the common area, and a permanent injunction against further construction or alteration.
In parallel, the respondents complained to the West Bengal Real Estate Regulatory Authority (WBRERA) in March 2025, seeking cancellation of the project’s RERA registration, a finding of fraud on homebuyers, and a restraint on the developer dealing with the project’s common areas, along with a substantial monetary claim. WBRERA directed KMC to inspect the E-Deck level and penthouses; that order was affirmed by the West Bengal Real Estate Appellate Tribunal (REAT) in January 2026, and the inspection was carried out.
Before the Arbitral Tribunal, the respondents applied under Section 17 of the Arbitration and Conciliation Act for an independent surveyor to inspect the same construction and for a restraint against altering the common areas pending arbitration. The developer opposed the application and, in its Statement of Defence, separately objected that the dispute was not arbitrable at all, being governed by RERA and the KMC Act’s own specialised fora. By an order dated 5 February 2026, the Arbitrator recorded the developer’s objection, left it open for decision under Section 16, and granted the two interim measures sought — the surveyor’s inspection and the restraint on altering the common areas. The developer’s appeal against that order, under Section 37 of the Act, is the subject of this judgment.
3. Legal analysis
3.1 The limited compass of a Section 37 appeal against interim relief
The Court began by fixing the boundaries of what was actually before it. The impugned order was an interim measure under Section 17; it did not decide, one way or the other, the developer’s objection to arbitrability, which the Arbitrator had expressly recorded and left open under Section 16. The Court held that the question of jurisdiction and arbitrability is, in the first instance, for the Arbitral Tribunal to decide, and confined itself to whether the interim measures granted suffered from illegality or perversity warranting interference under Section 37. This threshold move does much of the analytical work in the judgment: it converts what the developer framed as a jurisdictional challenge into a much narrower question about the propriety of two specific, protective directions.
3.2 Declining to resolve the RERA-arbitration divergence
Both sides marshalled substantial, and genuinely divided, authority on whether disputes of this kind are arbitrable notwithstanding RERA. The developer relied on Vidya Drolia & Ors. v. Durga Trading Corporation, (2021) 2 SCC 1, and Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. & Ors., (2011) 5 SCC 532, for the proposition that a dispute committed to a specialised statutory forum is non-arbitrable, together with High Court authority — Army Welfare Housing Organisation & Anr. v. Col. R. Ganesan, 2021 SCC OnLine Mad 16554; Nesh India Infrastructure Private Ltd. v. Savita Sah & Ors., AIR 2025 Pat 19; and Rashmi Reality Builders Pvt. Ltd. v. Rahul Rajendrakumar Pagariya & Ors., 2024 SCC OnLine Bom 3871 — applying that principle to RERA disputes specifically. The respondents countered with Priyanka Taksh Sood v. Sunworld Residency (P) Ltd., 2022 SCC OnLine Del 4717, and Pallab Ghosh v. Simplex Infrastructures Ltd., 2024 SCC OnLine Gau 751, for the view that Sections 88 and 89 of RERA oust other remedies only where there is an actual inconsistency, and on Experion Developers (P) Ltd. v. Sushma Ashok Shiroor, (2022) 15 SCC 286, and IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241, for the proposition — decided in the context of the Consumer Protection Act rather than arbitration — that RERA remedies run concurrently with, rather than displacing, other available remedies.
The Court did not adopt either line. It recorded that the propositions were “neither self-evident nor free from rival authority,” and treated that very divergence as confirmation that the question belonged to the Arbitral Tribunal under Section 16, not to itself on an appeal confined to Section 17 relief. This is a notable restraint: rather than using an interlocutory appeal as an occasion to settle a live and contested question about the reach of RERA, the Court left the field open, meaning neither party’s authorities were endorsed or rejected — they remain arguments to be weighed by the Arbitrator in the first instance, and, in due course, by whichever court reviews that ruling.
3.3 Sections 16 and 17 do not operate in sequence
The developer’s more technical argument was procedural: relying on T.K. Lathika v. Seth Karsandas Jamnadas, (1999) 6 SCC 632, and Sathyanath & Anr. v. Sarojamani, (2022) 7 SCC 644, it argued that a preliminary objection going to jurisdiction must be decided before any interim relief is granted. The Court rejected this, holding that T.K. Lathika arose in a different statutory context and does not lay down a universal procedural rule binding on every forum. Section 16(5) of the Arbitration and Conciliation Act obliges the tribunal, upon rejecting an objection to its jurisdiction, to continue with the proceedings — but it does not require the objection to be decided before any other step, including one under Section 17, can be taken. The Court characterised Section 16 as going to “the continuance and jurisdiction of the reference” and Section 17 as concerned with “preserving the subject matter of the dispute” from being rendered infructuous by an intervening change in the status quo, and held that requiring every jurisdictional objection to be finally decided before interim protection could issue would, in a case like this one, defeat Section 17’s purpose — since alteration of the common areas, once done, could not be undone.
3.4 What made these particular measures acceptable
The Court was careful to tie its holding to the character of the specific relief granted, not to a general proposition that interim measures are always available regardless of a pending arbitrability challenge. It described the surveyor’s inspection as “a neutral, fact-finding exercise” that would assist whichever tribunal ultimately decided the merits, and the restraint on altering the common areas as “protective and status-quo in character,” requiring no demolition or restoration and pre-empting nothing. Neither measure, the Court held, finally adjudicated any right or foreclosed the developer’s pending objection. This distinction matters: had the Arbitrator granted final or mandatory relief — an order to demolish, for instance, rather than merely to preserve the status quo — the calculus under Section 37 might have looked different, since the case for insisting on a prior ruling on arbitrability grows stronger the more an interim order approximates final relief.
3.5 The standard of appellate review under Section 37
The Court also set out, and applied, the now well-established limits on a Section 37 appeal: that its scope is “akin to, and as circumscribed as,” a challenge under Section 34, and does not permit the appellate court to re-appreciate evidence or substitute its own view for the tribunal’s merely because another view was also possible. Citing Ramakant Ambalal Choksi v. Harish Ambalal Choksi & Ors., (2024) 11 SCC 351, for the principle that an appellate court will not disturb a discretionary order unless it was exercised arbitrarily, capriciously, perversely, or in disregard of settled legal principle, the Court held that where the Arbitrator’s course was a plausible and permissible one under Sections 16 and 17, interference was not warranted even if a different view was also available.
3.6 Non-joinder of third-party allottees
The developer separately argued that the order could not stand because the penthouses and E-Deck apartment had since been transferred to third parties — none of whom were before the Arbitral Tribunal — relying on State Bank of India v. Ericsson India Pvt. Ltd. & Ors., (2018) 16 SCC 617, Kishor Singh Ratan Singh Jadeja v. Maruti Corporations & Ors., (2009) 11 SCC 229, and Kauvery Medical Care (India) Ltd. v. CeeDee Yes Health Care Services (P) Ltd. & Ors., (2024) 5 CTC 524, for the proposition that an interim order cannot bind persons not party to the proceeding. The respondents’ answer — that a preliminary survey does not adjudicate any other flat owner’s rights, and that KMC, a statutory regulator, has no obligations under the Sub-Lease Deed in any event — appears to have been accepted implicitly: the Court’s reasoning on this point again returns to the non-final, fact-gathering character of the measures granted, rather than engaging with the third parties’ standing as a separate question. Readers should note that the judgment does not expressly rule on whether those absent transferees’ rights are, or are not, affected by the restraint; it disposes of the point by characterising the restraint as one that “does not require the Appellant to demolish, restore or undo anything” and therefore does not, in the Court’s assessment, need their prior participation.
3.7 What the judgment does not decide
It bears emphasis that this judgment resolves nothing about whether RERA ousts arbitration for disputes concerning a condominium’s common areas, whether the respondents’ claim is a right in rem or in personam, or whether the developer’s construction of the penthouses and E-Deck apartment was in fact unauthorised. All of that — including the developer’s objection under Section 16 — remains to be decided, first by the Arbitral Tribunal and, potentially, on subsequent challenge. The judgment is, in that sense, procedural rather than substantive: it is authority for how Sections 16 and 17 interact, not for any proposition about the merits of the underlying dispute or the broader question of RERA’s relationship with arbitration clauses in buyer agreements.
4. Practical significance
For developers of multi-owner residential projects, the judgment is a reminder that an arbitration clause in a buyer’s agreement does not insulate a developer from interim scrutiny merely because a jurisdictional objection has been raised and is pending; a tribunal may still grant narrowly protective, status-quo relief — inspections, restraints against alteration — without first ruling on that objection, and an appellate court is unlikely to disturb that sequencing where the relief granted stops short of final adjudication. Developers negotiating or defending Section 17 applications should therefore focus less on the abstract arbitrability question, which this judgment shows courts may decline to resolve at the interim stage, and more on demonstrating that any relief sought goes beyond preservation of the status quo into effectively final relief — since that is the line the Court drew between measures it would tolerate and measures that might have required a prior ruling on jurisdiction.
For homebuyers and sub-lessees holding rights over demarcated common areas, the case illustrates the value of pursuing both regulatory and contractual tracks in parallel — a RERA complaint addressing compliance with the sanctioned plan, and an arbitration (or civil suit, where no arbitration clause exists) addressing the buyer’s own contractual entitlement — without either track being treated as displacing the other, at least at the interim stage. Counsel drafting buyer agreements or sub-lease deeds for projects with shared amenities should consider whether the agreement’s arbitration clause, and any accompanying dispute-resolution scheme, adequately anticipates disputes over common areas specifically, since those disputes tend to implicate third parties (other allottees, the municipal sanctioning authority) whose absence from the arbitral reference can itself become a ground of challenge, as it did here.
For counsel advising on Section 17 applications generally, the judgment offers a workable template for the kind of relief most likely to survive appellate scrutiny while a jurisdictional objection is pending: measures that are investigative or preservative — a survey, a status-quo restraint — rather than mandatory or restorative. Framing interim relief in these terms, and expressly inviting the tribunal to record the opposing side’s jurisdictional objection as still open (as the Arbitrator did here), appears to be the safer course for a party seeking urgent protection without pre-empting a live challenge to the forum’s competence.
Finally, the judgment is a caution for parties who are not before the arbitral tribunal but whose interests may be affected by its orders — such as the third-party transferees of the penthouses and E-Deck apartment in this case. Where a project involves successive transfers of units carved out of common areas, transferees and their counsel should track any parallel arbitration or RERA proceeding concerning the project, since an interim order in that proceeding, even one framed as non-final, may practically constrain what can be done with a unit they hold, notwithstanding their absence from the reference.
5. Conclusion
Forum Projects Private Limited v. Gaurav Karnani & Ors. does not decide whether RERA ousts arbitration over a condominium’s common-area disputes — a question on which the authorities cited before the Calcutta High Court point in genuinely different directions, and which the Court, rightly in its own estimation, left to the Arbitral Tribunal. Its contribution is narrower but still useful: it confirms that Sections 16 and 17 of the Arbitration and Conciliation Act operate independently rather than sequentially, that a tribunal may grant protective, non-final interim measures while a jurisdictional objection remains undecided, and that an appellate court exercising the confined jurisdiction available under Section 37 will not disturb that course merely because a different sequencing was also arguable. For a species of dispute — shared amenities in a multi-owner development — where delay in preserving the status quo can itself render the underlying claim academic, that is not a small point.
Citations
- Forum Projects Private Limited v. Gaurav Karnani & Ors., APO 11 of 2026 (IA No. GA 1 of 2026), High Court at Calcutta, Civil Appellate Jurisdiction, Original Side (Gaurang Kanth, J.), reserved 18 August 2026, delivered 24 September 2026; neutral citation 2026:CHC-OS:413. Source: Indian Kanoon, accessed 26 September 2026.
Authorities cited by the parties (not adopted or rejected by the Court on the arbitrability question, which was left open)
- Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. & Ors., (2011) 5 SCC 532.
- Vidya Drolia & Ors. v. Durga Trading Corporation, (2021) 2 SCC 1.
- Army Welfare Housing Organisation & Anr. v. Col. R. Ganesan, 2021 SCC OnLine Mad 16554.
- Nesh India Infrastructure Private Ltd. v. Savita Sah & Ors., AIR 2025 Pat 19.
- Rashmi Reality Builders Pvt. Ltd. v. Rahul Rajendrakumar Pagariya & Ors., 2024 SCC OnLine Bom 3871.
- Priyanka Taksh Sood v. Sunworld Residency (P) Ltd., 2022 SCC OnLine Del 4717.
- Pallab Ghosh v. Simplex Infrastructures Ltd., 2024 SCC OnLine Gau 751.
- Experion Developers (P) Ltd. v. Sushma Ashok Shiroor, (2022) 15 SCC 286.
- IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241.
Authorities relied on by the Court in its own reasoning
- Ramakant Ambalal Choksi v. Harish Ambalal Choksi & Ors., (2024) 11 SCC 351 (limited scope of appellate interference with a discretionary order).
- T.K. Lathika v. Seth Karsandas Jamnadas, (1999) 6 SCC 632, and Sathyanath & Anr. v. Sarojamani, (2022) 7 SCC 644 (cited by the appellant; distinguished by the Court as arising in a different statutory context).
- State Bank of India v. Ericsson India Pvt. Ltd. & Ors., (2018) 16 SCC 617; Kishor Singh Ratan Singh Jadeja v. Maruti Corporations & Ors., (2009) 11 SCC 229; Kauvery Medical Care (India) Ltd. v. CeeDee Yes Health Care Services (P) Ltd. & Ors., (2024) 5 CTC 524 (cited by the appellant on non-joinder; not separately adjudicated by the Court).
Statutory provisions engaged
- Sections 9, 16, 17, 19, 27 and 37, Arbitration and Conciliation Act, 1996 (interim measures before a court and before a tribunal; competence to rule on jurisdiction; scope of appeal against interim orders).
- Sections 7, 88 and 89, Real Estate (Regulation and Development) Act, 2016 (registration and cancellation of a project; relationship between RERA and other laws).
- Section 415, Kolkata Municipal Corporation Act, 1980 (specialised tribunal referenced in argument on non-arbitrability).
This article relies solely on the text of the judgment itself for its account of the facts and the Court’s reasoning; authorities cited only in the parties’ submissions are identified as such above and are not otherwise verified against their own text.
This article is not legal advice and does not create an attorney–client relationship. Readers should verify the certified copy of the judgment and any subsequent clarificatory orders before relying on it, and consult a qualified advocate on the facts of their matter.