1

SCHOOL OF EXCELLENCE IN LAW

NAME : NANDHINEE. S

REG. NO. : H320082

COURSE : LL. B (HONS.)

YEAR : SECOND YEAR – SEMESTER IV

SECTION : ‘B’

SUBJECT : H3CC402 – ALTERNATIVE DISPUTE RESOLUTION

MECHANISM

TOPIC : AN APPLICATION TO COURT SEEKING INTERIM

INJUNCTION OR APPOINTMENT OF RECEIVER
BEFORE THE ARBITRATION HAVE BEGUN.

STUDENT’S SIGNATURE FACULTY SIGNATURE

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TABLE OF CONTENTS

Sl.No TOPIC PAGE NO

1 Introduction 3

2 Interim measures in Arbitraion : An Overview 3

3 Who can apply for interim measures? 4

4 Overview of Section 9 4

5 Overview of Section 17 4

6 Difference between Section 9 and Section 17 5

7 Which court to apply? 5

8 Interim reliefs from the court 6

9 Interim reliefs from the tribunal 7

10 Enforceability of an interim order by court 8

11 Petition under Section 9 for interim measure by court 9

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1. Introduction
With the changes introduced by the Arbitration and Conciliation Amendment Act, 2015
(“Amendment Act 2015”), arbitral tribunals have now been vested with wider powers to grant
interim measures. In this backdrop, it is of paramount importance to understand the nature of
interim reliefs which can be granted by courts and arbitral tribunals and their respective
limitations.

2. Interim measures in arbitration: an overview

In India, the Arbitration & Conciliation Act, 1996 (“Act”) which was formulated on the
basis of UNCITRAL Model Law on International Commercial Arbitration, 1985 (“Model Law”),
provides for interim measures under Sections 9 and 17 by courts and arbitral tribunals
respectively. Section 9 of the Act is broadly based on Article 9 of Model Law and provides for
the grant of interim measures by a court. Unlike Model Law, Section 9 provides for interim
measures of protection not just before the commencement of arbitral proceedings 1 and during the
arbitral proceedings but also post the arbitral award has been rendered (but prior to its
enforcement).
The Amendment Act 2015 has introduced certain changes to the provisions on interim
reliefs with respect to kind of reliefs available and the time-frame for seeking such reliefs before
courts, i.e., if an order of interim relief has been granted by a court prior to the constitution of the
arbitral tribunal, parties are required to initiate arbitral proceedings within a period of ninety days.
Once arbitral proceedings have commenced, the parties would have to seek interim reliefs before
the arbitral tribunal. A court would ordinarily not entertain a petition for interim reliefs in such a
situation unless the party is able to prove the existence of circumstances that make a relief
granted by an arbitral tribunal inefficacious. After an award has been rendered by the arbitral
tribunal, the successful party may also choose to approach courts for interim reliefs to secure and
safeguard the effectiveness of the arbitral award prior to its enforcement.
The application would generally have to be made before a court prior to the enforcement
of the award in case of both domestic and international commercial arbitrations. Interim measures
ordered by arbitral tribunal set out in Section 17 of the Act, are also essentially based on Article
17 of the Model Law. The operation of this provision is triggered only at the request of a party to
the arbitral proceedings, only after the constitution of the tribunal. A party may seek interim
reliefs up to the point in time at which an award is made by the tribunal. Previously, there was a
debate whether the powers of an arbitral tribunal to grant interim reliefs were narrower compared
to the power of a court under Section 9 of the Act. However, with the amendments in place, the

1
Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479: “...when an application under
Section 9 is filed before the commencement of the arbitral proceedings, there has to be manifest
intention on the part of the applicant to take recourse to the arbitral proceedings if, at the time when
the application under Section 9 is filed, the proceedings have not commenced under Section 21 of the
1996 Act.”
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powers of an arbitral tribunal to grant interim reliefs have been made at par with those of the
court under Section 9 of the Act.

3. Who can apply for interim measures?

Any party to the arbitration agreement can make an application for interim measures in
the course of the arbitral proceedings. However, after making of the arbitral award, only a
successful party which is entitled to seek the enforcement of the award can apply to the court
under Section 9 for protection in terms of Section 9 (ii) of the Act. This emanates from the
understanding that the scheme of Section 9 postulates an application for the grant of an interim
measure of protection after the making of an arbitral award and before it is enforced for securing
the property for the benefit of the party which seeks enforcement of the award. 2 As was observed
by the Bombay High Court (quoted below) that an unsuccessful party would not be, in any event,
entitled to enforcement for the simple reason that there is no award in its favour to be enforced:
“If an application is made at the instance of such an unsuccessful party under section 9, there will
not be any occasion to grant any interim measure which will be in the aid of the execution of the
arbitral Award as such a party will not be entitled to seek enforcement under section 36.”3
Consequently, even on the award being set aside, the party whose claim has been rejected
vide the said award, cannot apply for interim measures under Section 9 of the Act. This is
premised on the understanding that the court, under Section 34 of the Act does not act as a court
of appeal, and does not review the merits of the dispute.4

4. Overview of Section 9
To file a Section 9, one must necessarily be a party to the contract which contains the
arbitration agreement. If a party voluntarily wants to join itself in arbitration and the existing
parties do not object to the same, in that case, the third party who is willingly submitting itself to
the arbitration cannot take away the fact that they are bound by the arbitration. 

5. Overview of Section 17
Section 17 deals with the interim relief sought from the Arbitral Tribunal. Per
Amendment of 2015, Section 17 has been made para materia with Section 9. Arbitrators now
have all powers to grant relief as available under Section 9. The enforcement thereof can be taken
as a decree as a civil court. Only difference is the arbitrator cannot bind a third party as they can
only bind the contractual parties to any injunction or any interim measures. In case a party seeks
interim measures against a third party, in that case, the party has to approach the Hon’ble Court. 
2
Dirk India Private Limited v. Maharashtra State Electricity Generation Company Limited 2013 (7)
Bom.C.R 493
3
Wind World (India) Ltd. v. Enercon GmbH and others 2017 SCC OnLine Bom 1147 (para 18)
4
Dirk India Private Limited v. Maharashtra State Electricity Generation Company Limited 2013 (7)
Bom.C.R 493
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6. Difference between Section 9 and Section 17.

When we seek a relief under Section 17, if the arbitrator passes an interim measure even
without considering the provisions of CPC, the courts have seen over time that when the
principles by which the arbitrator was guided were not absolutely perverse, were not in teeth of
the settled guidelines, then it may not strictly apply the principles of CPC ipso facto. However,
while passing an order, it should be kept in mind that he should meet the ends of justice and
sufficiently consider all documents, pleadings and evidence on record. In his opinion under the
prevalent circumstances of the particular fact such a relief ought to be given otherwise the entire
arbitral proceeding would be a joke. So the courts in those cases seek little restrain in setting
aside such orders unless and until the arbitrator passes an order without giving a chance at all or
considering material which was not supplied to the other party to contest or certain considerations
beyond the four corners of the contract. In those cases orders can be interfered but not otherwise.
Section 17 is also challengeable under Section 37. 

7. Which court to apply?

The ‘court’ as defined in Section 2(1)(e) of the Act can either be a district court or a High
Court having ‘original jurisdiction’, which would have the jurisdiction to decide the subject
matter of the arbitration as if the same were the subject matter of a civil suit. In case of an
international commercial arbitration, i.e., an arbitration relating to a commercial dispute where at
least one of the parties is non-Indian, only a High Court of a state in India will have powers under
the Act. Following the Supreme Court’s judgment in Bharat Aluminium Company v Kaiser
Aluminium5, the court of the seat of arbitration will have jurisdiction under the Act. Fixation of a
seat of arbitration is equivalent to assigning exclusive jurisdiction to the courts of the seat for any
supervisory functions over including powers to interim reliefs. Needless to say, such designation
of the seat would oust the jurisdiction of all other courts.6
In case an application is made to a court under Part I of the Act with respect to the
arbitration agreement, Section 42 of the Act will apply to preclude the making of all subsequent
applications under Part I (including those under Section 9 of the Act) to any court except the
court to which such application has been made. Similarly, if an application for interim relief is
made to a court, all subsequent applications under Part I would have to be made to that court to
which an application has been made under Section 9 of the Act. For assessing the powers of the
court to grant interim measures under Section 9 of the Act vis-à-vis powers of the arbitral tribunal
under Section 17 of the Act, the introduction of the following clause to Section 9 of the Act
merits discussion: “(3) Once the arbitral tribunal has been constituted, the Court shall not
entertain an application under sub-section (1), unless the Court finds that circumstances exist
which may not render the remedy provided under section 17 efficacious.” Thus, to avoid
prejudice to any party subsequent to the constitution of the arbitral tribunal, courts have begun to

5
(2012) 9 SCC 552
6
Indus Mobile Distribution Private Ltd. v. Datawind Innovations Private & Ors (2017) 7 SCC 678
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refrain themselves from making orders under Section 9 of the Act. 7 However, subsequent to the
amendments in Section 9 of the Act, the court can grant interim measures in the following
circumstances:

 Prior to the constitution of the tribunal

 After the award has been made and prior to its enforcement.
 Recently, a Division Bench of the Kerala High Court observed that when an
application is made before a court under Section 9(1) of the Act after the award is
made but yet to be enforced, the court shall bear in mind that it is a stage where the
arbitral tribunal has ceased to function.8 It further held that, the court has to adopt a
liberal approach in such circumstances.9
 In the course of the arbitral proceedings, after the constitution of the tribunal,
when an interim measure granted by the tribunal would not be efficacious. In
granting interim reliefs in such cases, courts assess the relevant facts and
circumstances with precision including instances like the lethargic manner of
arbitrators in granting interim reliefs in respect of assets rendering the remedy
inefficacious.10 Some courts have been of the view that courts would be required to
adopt a strict approach in entertaining such applications under Section 9, in the
course of the arbitral proceedings.11

8. Interim reliefs from the court

Section 9 of the Arbitration and Conciliation Act, permits interim measures and any party to
an arbitration agreement can seek relief by way of an interim application from the court under
Section 9 of the Arbitration and Conciliation Act before the commencement of the arbitral
proceedings or after the pronouncement of award but before its enforcement.

Sub sections (2) and (3) of Section 9 were introduced by the 2015 amendment. The sub
Section (3) is a provision in the nature of an exception as the legislature has very clearly
communicated its intent that the court does not have the mandate to entertain an application under
Section 9 after the arbitral tribunal's constitution. The words being used by the legislature are "the
Court shall not entertain", which makes it crystal clear that once Arbitration has been invoked and
the Arbitral Tribunal has been constituted then court shall not entertain applications under Section 9
of the Arbitration and Conciliation Act. However, an exception to this rule has also been provided
i.e., the court may entertain an application under Section 9 after the constitution of arbitral tribunal
only under extraordinary circumstances, i.e., when the remedy available under Section 17 can be said
to be becoming inefficacious . Otherwise, in other circumstances, remedy in form of an interim relief
after the constitution of arbitral tribunal first lies under Section 17 of the Act.

7
Manbhupinder Singh Atwal v. Neeraj Kumarpal Shah 2019 GLH (3) 234
8
M Ashraf v. Kasim VK 2018 SCC Online Ker 4913
9
ibid
10
SREI Equipment Finance Limited (Sefl) v. Ray Infra Services Private Limited & Anr., 2016 SCC OnLine Cal 6765
11
See, M Ashraf v. Kasim VK 2018 SCC Online Ker 4913
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The object of insertion of both the Sub-Sections i.e., (2) and (3) is to see that the steps are not
unnecessarily resorted to for interim measure under Section 9 or that the measures under this section
are not unduly protracted by the party who may have obtained the order for interim measures under
Section 9 but would while away the time in commencing the actual arbitral proceedings in order to
continue enjoying the interim measures. Therefore, by resorting to Sub-Section (2) in Section 9, it is
provided that if before the commencement of arbitral proceedings a court has passed order of interim
measure of protection under Sub-Section (1), arbitration proceedings shall have to commence within
a period of 90 days from the date of such order.

Therefore, the circumstances wherein the court can exercise powers under Section 9 of the Act
for giving interim reliefs are as follows:

1. Before the Arbitral Tribunal has come into existence i.e., before the constitution of Arbitral
Tribunal

2. After the pronouncement of Arbitral Award but before its enforcement

3. When the remedy available under Section 17 would be inefficacious

It is also pertinent to mention that a relief granted by a court under Section 9 in the form of an order
may be enforced like any other order under any other statute passed by the court.

9. Interim reliefs from the tribunal

Section 17 of the Arbitration and Conciliation Act gives power to the arbitral tribunal to grant
interim reliefs to any of the parties when an application under the said Section is filed before the
tribunal. Section 17 of the Act comes into play only when the arbitral tribunal has been
constituted and an award has not been passed by the tribunals. Hence, the circumstances when the
arbitral tribunal is at liberty to decide an application under Section 17 are:

1. During the continuance of arbitral proceedings, i.e., after the tribunal has been constituted

2. Before the arbitral tribunal passes an arbitral award

Before the 2015 Amendment Act came into force, Section 17 gave a wide range of powers to
the arbitral tribunal as the tribunals had powers to issue any sort of interim measures of protection
and there was no exception or limitation carved out in the 1940 Act.

However, the 2015 Amend ment Act limited the powers of the arbitral tribunal and carved out
the situations and the manner of exercising powers under Section 17 of the Act.

However, even before the 2015 amendment, the courts had time and again made it clear that
the powers granted to arbitral tribunal under Section 17 were limited in nature and less in comparison
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to Section 9 of the Act, i.e., the power vested with the court to grant interim relief has always been
more than the arbitral tribunal.

10. Enforceability of an interim order granted by a court

Interim reliefs granted by a court may be enforced like any other order of court. In case of
wilful non-compliance/disobedience of the judgment/order, parties may choose to initiate contempt
proceedings for civil contempt under Section 2 (b) of the Contempt of Courts Act, 1971.12 The parties
in wilful non-compliance may be punished with the maximum punishment as provided in terms of
Section 12 of the Contempt of Courts Act, 1971.13

PETITION UNDER SECTION 9 FOR INTERIM MEASURE BY COURT

12
Mtech Solutions v. Pclit Solutions Pvt. Ltd, CCP No.132/2007 in OMP No.320/2007 (judgment dated 31 July 2009 of
the Delhi High Court)
13
Terra Manufacturing and Sales v. M/S Alagendiraa Apparels, CONT. CAS (C) No 920/2009 (judgment dated 19 October
2011 of the Delhi High Court)
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In the Court of District Judge, Misc Case No. of 2022

XYZ ....... Petitioner/Applicant; Vs. ABC ....... Respondent/Opposite Party.

Petition under Section 9 of the Arbitration and Conciliation Act, the petitioner/applicant

above named begs to state as under: —

1. That the petitioner/applicant entered into a Contract Agreement on: for supply/construction,
etc. of.

2. That the said Contract Agreement contains an arbitration clause which is being reproduced
here in under: —

3. That [all relevant facts to show why interference of the court is needed to protect the
subject-matter of the dispute or for securing the amount in dispute in the arbitration.

PRAYER

Wherefore, it is respectfully prayed that this Hon'ble Court may be pleased to direct the

respondents to furnish security in the form of .................. of like amount of the claims of the

claimant/applicant or order such other suitable interim measure, etc. for the preservation, interim

custody, etc. of the subject-matter of the dispute in arbitration pending/proposed to be settled by

arbitration, etc. and which shall be in the interest of justice.

COIMBATORE

DATED: Applicant

VERIFICATION
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I, XYZ, the petitioner/applicant above named do hereby verify that the contents of paragraphs

.... to. .... are true to my personal knowledge, while those of paragraphs. .... to ...... are based on legal

advice and records.

COIMBATORE.

DATED: Applicant