The Wide Scope of Section 9 of the Arbitration and Conciliation Act, 1996

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.¹” — Abraham Lincoln

The present statutory regime that regulates arbitration in India is the Arbitration and Conciliation Act, 1996² (“the Act” for brevity). The Act is comprehensive and seeks to protect the interests of the parties; one such provision aimed at safeguarding the interests of the parties before, during and after the commencement of arbitral proceedings is the power to grant interim relief. The Act envisages interim measures under Section 9³ and Section 17⁴ of the Act. There is a basic distinction between the two provisions i.e. the forum before which the interim measures can be sought and the stage of proceedings when the application can be moved. Section 9 of the Act stipulates the powers of the court to grant interim relief before or during the arbitral proceedings or after the passing of the arbitral award and also lays down a restriction under clause (3) after the constitution of the Arbitral Tribunal unless such circumstances exist which may render a remedy under Section 17 inefficacious. Section 17 lays down that the parties may apply to the Arbitral Tribunal for interim relief during the arbitral proceedings.

The general principles which are taken into account while granting interim relief are: (i) prima facie case; (ii) balance of convenience in favour of grant of interim relief; and (iii) irreparable injury or loss to the applicant for interim relief. Though, the Arbitral Tribunal is not bound ⁵ by the Civil Procedure Code, 1908⁶ but the general principles are fairly taken into account while determining the questions.

This raises a question whether the court is restricted in its scope in terms of the provisions of the Civil Procedure Code also whether it is barred from entertaining an application under Section 9 of the Act after the constitution of the Arbitral Tribunal. In Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India Ltd.⁷, the Supreme Court has held that the provisions of the Civil Procedure Code are not binding upon Section 9 of the Act and on mere technicality the relief cannot be withheld. In the instant matter, the Bombay High Court allowed the application filed under Section 9 of the Act by Arcellor Mittal Nippon Steel India Limited which directed Essar Services to deposit Rs 47.41 crores with the Prothonotary and Senior Master of the High Court. Essar Services filed an appeal before the Supreme Court challenging the aforesaid order and the Supreme Court categorically held:

48. Section 9 of the Arbitration Act confers wide power on the court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 ⁸ of the Arbitration Act. All that the court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition.

49. If a strong prima facie case is made out and the balance of convenience is in favour of interim relief being granted, the court exercising power under Section 9 of the Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 CPC⁹.

50. Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending arbitral award is not imperative for the grant of relief under Section 9 of the Arbitration Act. A strong possibility of diminution of assets would suffice. To assess the balance of convenience, the court is required to examine and weigh the consequences of refusal of interim relief to the applicant for interim relief in case of success in the proceedings, against the consequence of grant of the interim relief to the opponent in case the proceedings should ultimately fail.

The object of Section 9(3) has been laid down by the Supreme Court:

37. … to avoid courts being flooded with Section 9 petitions when an Arbitral Tribunal is constituted for two good reasons —

(i) that the clogged court system ought to be decongested; and

(ii) that an Arbitral Tribunal, once constituted, would be able to grant interim relief in a timely and efficacious manner.¹⁰

Different observations upon this question have been made by the High Courts of different States. “Once an Arbitral Tribunal is constituted, an application for interim relief should ordinarily be decided by the Arbitral Tribunal.”¹¹

27. A harmonious reading of Section 9(1) with Section 9(3) of the 1996 Act, as amended by the 2015 Amendment Act¹², makes it amply clear that, even after the amendment of the 1996 Act by incorporation of Section 9(3), the Court is not denuded of power to grant interim relief once an Arbitral Tribunal is constituted.¹³

In Benara Bearings & Pistons Ltd. v. Mahle Engine Components India (P) Ltd.¹⁴ a Division Bench of the Delhi High Court held:

24. … We are of the view that Section 9(3) does not operate as an ouster clause insofar as the courts’ powers are concerned. It is a well-known principle that whenever the legislature intends an ouster, it makes it clear.

25. We may also note that there is no provision under the said Act which, even as a transitory measure, requires the court to relegate or transfer a pending Section 9(1) application to the Arbitral Tribunal, the moment an Arbitral Tribunal has been constituted.

The Kerala High Court observed:

8. … Normally, the court shall not entertain an application under Section 9(1) of the Act after the constitution of the Arbitral Tribunal. But the court has the power to entertain an application under Section 9(1) of the Act even after the constitution of the Arbitral Tribunal unless the court finds that in the circumstances of the case the party has got efficacious remedy under Section 17 of the Act¹⁵.

The Delhi High Court in Avantha Holdings Ltd. v. Vistra ITCL India Ltd. ¹⁶ observed:

45. The court, while exercising its power under Section 9 of the 1996 Act, has to be acutely conscious of the power vested in the arbitrator/Arbitral Tribunal, by Section 17 of the same Act. A reading of Section 9 and Section 17 of the 1996 Act reveals that they are identically worded. The “interim measures ”, which can be ordered by the Arbitral Tribunal, under Section 17, are the very same as those which can be ordered by the court under Section 9. It is for this reason that sub-section (3) of Section 9 proscribes grant of interim measures, by the court, consequent on constitution of the Arbitral Tribunal, save and except where the court finds that circumstances exist, which may not render the remedy, under Section 17, to be efficacious. The court, while exercising jurisdiction under Section 9, even at a pre-arbitration stage, cannot, therefore, usurp the jurisdiction which would, otherwise, be vested in the arbitrator, or the Arbitral Tribunal, yet to be constituted.

In Ajay Singh v. Kal Airways (P) Ltd.¹⁷ the Delhi High Court held that wide powers are granted to the court under Section 9 and that the courts cannot be bound littera scripta by the provisions of Orders 38 and 39 ¹⁸ but must follow the principles underlying.

In Srei Infrastructure Finance Ltd. v. Ravi Udyog (P) Ltd.¹⁹ the Calcutta High Court held,

“An application under Section 9 of the Arbitration and Conciliation Act, 1996 for interim relief is not to be judged as per the standards of a plaint in a suit.”

The Act being a special legislation ²⁰ could not be restricted in its scope in terms of the provisions of the Civil Procedure Code. Thus, to bind the powers of the court under any provision of the Act as per the standards laid down in the Civil Procedure Code would not be amenable. The same has been reiterated by a number of judgments of the High Courts and rightly upheld by the Supreme Court in Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India Ltd.²¹ This gives wide powers to the courts while exercising authority under Section 9 of the Act. The court is not strictly bound by the provisions of Order 38 Rule 5 while granting relief under Section 9 of the Act and the scope of Section 9 is very broad. It is the court’s discretion to grant a wide range of interim measures which may appear to the court to be just and proper. The discretion has to be exercised in a judicious manner and not arbitrarily.