1.

The Enforceability of Arbitration Clauses in Draft

Agreements
Question: are they valid?

Answer – No they are not valid as it is not yet concluded.

Relevant Sections:

Section 2(h) – Party

Section 7 – Arbitration Agreement

Section 4 of the ICA – when is it accepted

Cases:

1. Afcons Infrastructure Ltd. v. Cherian Varkey

Construction Co. (P) Ltd
2. U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd.
3. Orissa Stevedores Ltd. v. Orissa Mineral
Development Co. Ltd
Introduction
1. The foundation of arbitration rests on a simple yet
profound principle: no consent, no arbitration.
2. This indispensable element came under scrutiny in the
landmark case of Afcons Infrastructure Ltd. v.
Cherian Varkey Construction Co. (P) Ltd.1.
3. In this case, the Supreme Court of India held that courts
cannot send parties to arbitration under Section 89 of the
Civil Procedure Code, 19082 (CPC) in the absence of the
parties' express consent.
4. Consent is not just a procedural requirement but the
bedrock of arbitration itself.
5. In the absence of consent, the very premise of arbitration
collapses, turning it into an involuntary imposition rather
than a chosen remedy.
6. The question that arises here is how to determine whether
there is consent between the parties to resolve disputes
through arbitration.
7. Referral courts have a responsibility to determine the
existence of an arbitration agreement between the parties
before referring them to the Arbitral Tribunal.
 8. One of the essential requirements for establishing the
existence of an arbitration agreement is that it must be in
writing. Furthermore, if the record of such an agreement
emerges from the exchange of letters, telex, or any mode
of electronic communication, then the arbitration
agreement is deemed to be in writing between the parties.
9. QUESTION:- But what would be the scenario if the dispute
arises between the parties at the stage of finalising the
contract, wherein parties are still negotiating the terms of
the contract and have incorporated certain clauses,
including an arbitration clause, but the agreement has not
yet been signed? Would the inclusion of the arbitration
clause or the exchange of such a draft agreement amount
to the existence of an arbitration agreement?
Existence of valid arbitration agreement
1. It is essential to understand the fundamental principles
outlined under Contract Act, 1872 (ICA) to understand the
formation of concluded contract between parties.
2. Section 4 of the ICA provides that communication of a
proposal is complete when it comes to the knowledge of
the person to whom it is made.
3. Similarly, the communication of acceptance is complete as
against the proposer, when it is put to the knowledge of
the proposer.
4. Further, Section 7 of the ICA explicitly states that for a
proposal to get converted into a promise, the acceptance
must be absolute and unqualified, and it should be
conveyed in a usual and reasonable manner.
5. These principles of contract formation under the ICA also
apply to the formation of an arbitration agreement under
Section 7 of the Arbitration and Conciliation Act.
6. Section 7 of the Arbitration and Conciliation Act
contemplates a situation wherein an arbitration
agreement may be formed through the exchange of letters
or even through a written reference to a document that
has an arbitration clause. An arbitration agreement
need not be signed and executed formally to be
binding on the parties. However, for an arbitration
agreement to be valid, the parties must be ad idem (of
 the same mind) and must accept the terms and
conditions specified in the agreement.
7. In cases where a dispute arises during contract
negotiations — such as when one party sends a
draft agreement to the other with material
alterations to the terms — the altered draft
constitutes a counterproposal. In such a scenario,
where the contract is in number of parts, a binding
arbitration agreement is formed only when the
contracting party expressly provides its absolute
and unqualified acceptance of the revised terms.
Acceptance by conduct
1. It is a well-settled position of law that an offer can also be
accepted by the conduct. Therefore, a question that arises
here is whether the communication of a unilateral
offer/counterproposal amounts to the acceptance of the
arbitration agreement by the conduct of the parties?
2. The said question was briefly discussed by the Supreme
Court in U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P)
Ltd., wherein the Supreme Court addressed an appeal
regarding the existence of an arbitration agreement.
3. Facts
a. The dispute arose when the parties decided to enter
into an agreement for a joint venture to submit a
tender to the Board and, in this regard, exchanged a
draft agreement that included arbitration clause. The
respondent, after altering material terms of the draft
agreement, sent the revised version to the appellant
and also unilaterally submitted the amended
agreement to the Board. However, before the tender
could be finally accepted by the Board, the appellant
withdrew from the process. As a result, the
respondent claimed damages from the appellant and
sought the appointment of an arbitrator for
adjudication of disputes.
4. Contentions of the appellant
a. The appellant contested the claim of the respondent
by stating that no valid arbitration agreement
existed, as the parties were in the negotiating stage
 and the material provisions of the contract were not
settled. The stand of the respondent is that the
agreement was entered into force when the
respondent sent a counterproposal to the appellant
and appellant had not returned the proposal,
therefore, it was argued that the appellant, despite
not signing it, acted on it, implying indirect
acceptance and thus concluded contract came into
existence.
5. Held:
a. However, the Supreme Court observed that material
changes to certain clauses of the contract by the
respondent would significantly impact the
determination of the concluded contract between the
parties. The draft agreement sent by the respondent
to the appellant was merely a counterproposal, and
without the appellant's express consent, it could not
be said that appellant understood the agreement in
the same manner as the respondent did. Therefore,
in the absence of consensus ad idem on the material
terms of the contract, no concluded contract
emerged; and consequently, no arbitration
agreement could be said to exist between the
parties.
Validity of arbitration clauses in the draft agreements
While determining the existence of arbitration agreement
between the parties, the Calcutta High Court in Orissa
Stevedores Ltd. v. Orissa Mineral Development Co. Ltd.,
deals with an interesting question, wherein the petitioner
sought to enforce the arbitration agreement by stating that
modification suggested by it in the draft agreement did not
alter the arbitration clause and therefore the arbitration clause
is deemed to have been accepted between the parties.

1. Facts
a. As per the facts of the case, the respondent shared a
draft agreement with the petitioner for finalisation so
that a formal agreement could be executed between
 the parties. However, the petitioner suggested a
modification to one of the minor terms of the draft
agreement without questioning the arbitration clause
contained therein and as a result, a formal
agreement could not be executed between the
parties. Later, after performing a substantial part of
the contract, the dispute arose between the parties,
and petitioner invoked the arbitration clause
contained in the draft agreement.
Held:
1. If it is held that the modification suggested did not affect
the arbitration clause and as such the arbitration clause is
deemed to have been accepted, there would be a serious
problem.
2. The Court observed that there was an exchange of letters,
which serves as a record of the draft agreement having
been exchanged between the parties. However, it cannot
be said there exists a valid arbitration agreement between
them. When the petitioner suggested modifications to the
draft agreement, it effectively sent a counterproposal to
the respondent rather than accepting the terms of the
draft agreement as sent by the respondent. The Court
further clarified that without a proper agreement,
the arbitrator could not ascertain whether the
modifications suggested by one party to another
were accepted or rejected by the parties and
whether the original draft agreement was final.
3. Despite the presence of an unaltered arbitration clause in
the draft agreement, the parties cannot be compelled to
arbitrate based on clauses that were never discussed or
agreed upon between the parties. The incorporation or
modification of the clauses in the draft agreement could
serve as a safeguard or provide a strategic advantage to
one party and may be detrimental to the interests of
another party in the event of arbitration. Therefore,
without the absolute and unqualified acceptance to these
clauses there cannot be said to have an agreement
between the parties to go to arbitration.
 4. The draft agreement that was sent by the respondent to
the petitioner was the proposal, when the petitioner
suggested modification, however insignificant, there was
no absolute or unqualified acceptance by the petitioner of
the proposal contained in the draft agreement. However,
the petitioner made a counterproposal and suggested new
agreement which clearly shows that the parties were not
at ad idem on the draft agreement and therefore no
arbitration agreement can be said to exist between the
parties.
Conclusion
At the heart of arbitration lies the concept of meeting of minds
without it, arbitration ceases to be a chosen mechanism and
instead becomes an imposed mechanism. Courts must
therefore go beyond the mere presence of an arbitration clause
in a draft agreement and rather ascertain whether there was an
absolute and unqualified acceptance of the arbitration
agreement by the parties. As the saying goes, “A prelude to a
contract should not be confused with the contract
itself”. The stage of negotiation, including the exchange
of draft agreements, is an antecedent step and does not
amount to an unequivocal acceptance of arbitration
terms. The essential features of an enforceable arbitration
agreement include a definite commitment instead of mere
option to arbitrate, with a clear and mutual intent of the
parties. Thus, if there is no concluded arbitration agreement,
courts should not force parties into arbitration simply because a
draft agreement has an arbitration clause in it.

Footnote 10 is Orissa Stevedores Ltd., 2010 SCC OnLine Cal

490.
 2. Waiver of the Right to Object under the Arbitration and
Conciliation Act, 1996

Based on the principle of estoppel, Article 4 of the UNCITRAL

Model Law on International Commercial Arbitration (“Model
Law”) was introduced with a view to ensuring efficiency in
the arbitration process.1 However, in the travaux
preparatoires (or the official record of the negotiations), the
States expressed concern that if applied too rigidly, the
provision could be used unfairly against a party.2 This
act of balancing the rigour of the waiver provision with
the right of a party in arbitration remains a concern,
especially in countries like India, where ad hoc arbitration
continues to be a significant part of the arbitration proceedings.
Article 4 of the Model Law finds place in Section 4 of the
Arbitration and Conciliation Act, 1996 (“the Act”) which
provides for the deemed waiver by a party of the right to object
in certain circumstances 4

WAIVER UNDER THE UNCITRAL MODEL LAW

1. It is contained in section 4 of the Model Law.

2. The need for a general principle of waiver was first
discussed in the Fifth Session of the Working Group on
International Contract Practices, United Nations
Commission on International Trade Law (“the Working
Group”) in the context of whether an arbitration
agreement would stand invalidated if it did not
comply with the requirements of the proposed
model law.
3. However, it was only in the Sixth Session of the Working
Group that the parties gave form to the general principle
 of waiver by introducing “Article I quarter”.8 The proposed
provision read as follows:—
a. “A party who knows that any provision of, or
requirement under, this Law has not been complied
with and yet proceeds with the arbitration without
stating his objection to such non-compliance
promptly or, if a time-limit is provided therefor in
this Law, within such period time shall be deemed to
have waived his right to object.”
b. Although some supported the deletion of such a draft
article, the prevailing view was that a general waiver
rule was required but in a less rigid form so that it
can only be applied in cases of fundamental
violations of procedural provisions.
c. Parties suggested that the language be softened by
removing the word “promptly” with less strict words
such as “without delay” and that the provision be
restricted in its application to only non-mandatory
provisions as against all provisions.
d. Parties also discussed introducing a provision which
specified which provisions of the Model Law would be
mandatory.
4. In the subsequent Seventh Session, the Working Group
made three notable changes to the text:
a. the first was the introduction of “A party who knows
or ought to have known” in place of “a party who
knows”;
b. the second was the replacement of “promptly” with
“without delay”; and,
c. the third was the introduction of “or, if a time-limit is
provided thereof, within such period of time”.
5. The language regarding knowledge of the person appears
to be in consonance with the general requirement that
there can be no waiver unless the person against whom
the waiver is claimed has full knowledge of his rights and
 of the facts which would have enabled him to make an
effective election as to the waiver.
6. The Session also discussed the important aspect of scope
of the provision. While one faction was in favour of the
provision being given effect to only during the arbitration
proceedings, the majority felt that its effect ought to be
extended to the post-award stage as well i.e. in the stage
of recognition and enforcement of the award.
7. Of relevance is also the consent amongst the parties of
the Working Group to do away with the draft provision
which set out a list of mandatory provisions.
8. In its place, based on the note of the Secretariat, the
Working Group agreed that the non-mandatory
character of the articles, such as Articles 2(e),
23(2) and 26(2) and (3) should be expressed in
those provisions by words such as “unless
otherwise agreed by the parties”. More importantly,
the Working Group also clarified that merely because in
some articles the non-mandatory character was expressed
therein, it did not automatically mean that all those
provisions of law which did not express their non-
mandatory character were necessarily of a mandatory
character.
9. Ultimately, the Working Group felt that the nature of a
provision where its non-mandatory nature was not
specifically expressed therein, ought to be determined by
the arbitrator and the Judges.
10. In fact, it appears that both India and Sweden did not
favour a demarcation of mandatory and non-mandatory
provisions under the proposed Article 4.19 Sweden took
the view that the demarcation if at all, ought to be left to
the arbitrator or the Judge depending on the facts of the
case.20 However, the predominant view in the Working
Group was the need to draw a line between mandatory
and non-mandatory provisions in the proposed Article 4.
11. Taking all these discussions into consideration, the
Secretariat in its report observed that the application of
the proposed Article 4 was subject to the following
conditions:
a. first, the procedural requirement which has not been
compiled with, must be either a non-mandatory
provision of the Model Law or in the arbitration
agreement. If extended to fundamental procedural
defects, it would result in rigidity
b. second, the party knew or ought to have known of
the non-compliance. However, it was clarified that
“ought to have known” should not be applied to
every kind of negligent ignorance but should be
restricted to instances where a party could not claim
to be unaware of the defect;
c. third, the party did not state his objections without
delay, or, if a time-limit is provided, within such
period of time.
d. lastly, the party without objecting should proceed
with the arbitration.
12. Pertinently, the report also clarified that the object
of the waiver provision was to ensure that a party
who has deemed to have waived his right to object
is prevented from raising the objection in the
subsequent stage of the proceeding as well as after
the award was rendered.26 That is, the party cannot
use the non-compliance as a ground for setting
aside the award or preventing enforcement of the
same.
13. However, the final text of Article 4 of the Model Law
adopted by the Uncitral was different from the text
discussed by the Secretariat in its report as it omitted the
phrase “ought to have known”.
14. Further, it also appears that “without delay” was modified
to “without undue delay”.
 15. This could have been because of the objections raised by
parties including Unctad that the phrase “without delay”
was too vague.
16. Further, although there were requests to demarcate the
mandatory and non-mandatory provisions the final text
adopted by the Uncitral does not make any such
demarcation.
17. It is in this background that Article 4 of the Model Law
came to be introduced.

WAIVER UNDER SECTION 4 OF THE ARBITRATION AND

CONCILIATION ACT

Although structured slightly differently, Section 4 of the A&C

Act retains language identical to Article 4 of the Model Law; it is
reproduced as follows:

4. Waiver of right to object.—

A party who knows that—
(a) any provision of this Part from which the parties may
derogate, or,
(b) any requirement under the arbitration agreement,
Has not been complied with and yet proceeds with the
arbitration without stating his objection to such non-compliance
without undue delay or, if a time-limit is provided for stating
that objection, within that period of time, shall be deemed to
have waived his right to so object.
(emphasis supplied)
1. It is apparent from the language of Section 4 of the A&C
Act that a party must have knowledge of the
derogation or violation for the provision to apply.
2. Knowledge
 a. Knowledge of the party has always been a
prerequisite in the general application of the principle
of waiver.
b. This requirement of actual intent or knowledge is also
reflected in the language of Section 4 of the A&C Act,
which is distinct from the language used in the earlier
draft Article 4 of the Model Law, which was “a party
who knows or ought to have known”
c. The phrase “know that” has been interpreted to
mean “actual knowledge” as it does not contain the
phrase “knows or ought to know”.
d. Knowledge of the party is also closely linked to the
conduct of the party during the arbitration — whether
the party despite having knowledge of the defect
participated in the proceeding without stating the
objection in time.
3. Definition of waiver
a. As in the case of the Model Law, the term “waiver”
has not been defined under the Act. Indian courts
have defined waiver as the intentional or voluntary
relinquishment of a legal right or advantage.
b. In fact, courts have drawn a distinction between
“waiver” and “estoppel” based on intent, as in
waiver, the essential element is actual intent to
abandon or surrender a right, while in estoppel, such
intent is immaterial.
c. However, “waiver” and “abandonment” have been
used synonymously as the latter also includes an
element of intent.

4. Proceeding with arbitration:

a. Russel on Arbitration states that a party who takes
part in the proceeding is in a different position from
one who does not take part in the proceedings.
b. To this effect, Section 4 of the A&C Act states “yet
proceeds with arbitration”.37 The travaux
 preparatoires referring to Article 4 of the Model Law
states:—
c. … “proceeding” would include, for example,
appearance at a hearing or a communication to the
Arbitral Tribunal or the other party.
Therefore, a party would not be deemed to have waived his
right, if for instance, a postal strike or similar impediment
prevented him for an extended period of time from sending any
communication at all.
5. Time limit of objection
a. Hence, time at which the party was expected to raise
an objection is an important factor to determine
when a party is said to have proceeded to arbitration.
The time-limit contemplated under the provision
must be provided in the arbitration agreement, or the
rules relating to arbitration or may be such as may
be allowed by the tribunal. If there is no time-limit
specified, then the said objection must be raised
“without undue delay”.
6. Parties may derogate:
a. Another significant precondition for the application of
Section 4 of the Arbitration and Conciliation Act is the
phrase “any provision of this part from which parties
may derogate”.
b. One of the earliest cases on what constitutes a
mandatory provision was Narayan Prasad Lohia v.
Nikunj Kumar Lohia (Lohia) where a three-Judge
Bench of the Hon'ble Supreme Court was presented
with the issue of whether a mandatory provision
of the Act can be waived by the parties42.
c. In the said case, parties had proceeded to arbitration
with two arbitrators.
d. Thereafter, one of the parties sought to set aside the
award on the ground that Section 10 of the A&C Act
was a mandatory provision which could not be
derogated from and hence the award was invalid.
 e. The Hon'ble Supreme Court observed that the answer
to whether Section 10 of the A&C Act was derogable
depended upon if the party had the right to object to
the composition of the Arbitral Tribunal and if so, at
what stage.
f. Applying the said test, the Hon'ble Supreme Court
held that Section 10 of the A&C Act was a
derogable provision as a party was free to
object to the composition of the Arbitral
Tribunal under Section 16(2) of the A&C Act.
g. Further, the Hon'ble Court held that if a party did not
raise the objection regarding composition of the
Arbitral Tribunal under Sections 12, 13 and 16, then
it was precluded from raising the same at a later
stage.
h. It is interesting to note that the Hon'ble Court held
that so long as the composition of the Arbitral
Tribunal was in terms of the arbitration agreement
between the parties, Section 34 of the A&C Act does
not permit challenge of the award merely because
the composition of the Arbitral Tribunal was in
violation of the provisions of Part I of the Act.4
i. The Court relied on this observation to conclude that
this also indicates that Section 10 is a derogable
provision.
j. Although the reference to the larger Bench was made
in Lohia (supra) to clarify if mandatory provisions can
be waived, the findings in the judgment were
restricted to Section 10 of the A&C Act.
7. In the subsequent case of Adani Enterprises Ltd. v.
Antikeros Shipping Corpn., one of the parties relied on
the decision in Lohia to argue that Section 11 of the A&C
Act could be derogated from and the petitioner having
addressed arguments before the arbitrator had waived its
right. – but this was not allowed. – Section 11 was held to
be non-derogable.
 a. The Hon'ble Bombay High Court referred to Lohia41
and observed that in the said case, the Court had
applied the test of Section 16 read with Section 10 of
the A&C Act to determine whether Section 10 of the
A&C Act was derogable.51 However, in the case of
Section 11 of the A&C Act, the Hon'ble Court was of
the view that such a test could not be applied51 as
Section 11 could not be derogated from since the
provision confers powers on the High Court and the
Supreme Court.51 Therefore, a party by its conduct,
cannot have deemed to have waived its right to
recourse under Section 11 of the A&C Act.

Therefore, the above demonstrates the preconditions

governing the application of Section 4 of the A&C Act.
Understanding these conditions in light of a few key provisions
of the Act may help provide insight into how the provision
applies to arbitration or related proceedings.

Section 4 and Section 8 of the Arbitration and Conciliation Act

 In sum, It is deemed to be waived only with the filling of the first statement of
defence, not otherwise.
 Simultaneous filling is no waiver.
 Rely to the interim relief proceedings is no waiver.
 Objecting after the statement of defence is a waiver.

Section 8(1) of the A&C Act provides the right of a party to refer
the dispute to arbitration subject to the condition that the same
is done within the timeline set out therein i.e. before submitting
the first statement on the substance of the dispute.
The Hon'ble Supreme Court in Rashtriya Ispat Nigam Ltd. v.
Verma Transport Company held that if a party has filed an
application before actually filing its first statement on the
substance of the dispute, the party cannot have said to have
waived its right or acquiesced itself to the jurisdiction.
Further, the Hon'ble Court held that for waiver to apply, there
must be a finding on the part of the judicial authority that the
party has waived its right to invoke arbitration.
In the subsequent judgment of Booz Allen & Hamilton Inc.
v. SBI Home Finance Ltd., it was clarified that the intention
of the party to submit to the jurisdiction of the court must be
deciphered from the statement, application, affidavit but a
mere objection to an interim application cannot be considered
as submission of a statement on the substance of the dispute.
More importantly, the Hon'ble Supreme Court also held that
though Section 8 of the A&C Act does not prescribe a time-limit,
an application under Section 8 of the A&C Act must be filed at
the earliest opportunity and a party that willingly participates in
the proceedings in the suit and subjects himself to the
jurisdiction of the court cannot subsequently say that the
parties should be referred to arbitration in view of the existence
of an arbitration agreement.
It has been clarified that the simultaneous filing of the
reference to arbitration along with the written statement has
been held to be valid under Section 8 of the A&C Act.
However, where a party has filed the written statement prior to
seeking a reference to arbitration albeit with a “without
prejudice to the arbitration agreement”, the same was held
insufficient to defend a consequence of waiver of arbitration.

Thus the conduct of the party must be taken into consideration

while determining whether the party has waived its right.

In the context of interim orders, any action taken to vacate an

interim order has been held to not amount to waiver. This is
because, an interim proceedings being incidental to the main
proceeding, any step taken to contest an existing interim order
cannot be considered as waiver or abandonment of the right
under an arbitration agreement.

Section 4 and Section 11 of the Arbitration and Conciliation Act

 Mere participation in the proceedings to appoint the
arbitrator is not a waiver to object on jurisdiction or
arbitrability.
 But if the parties have not objected to the validity of the
arbitration agreement at the time of the section 11
agreement – it cannot raise such a defence later on.
 Because although the section 11 does not use the words
prima facie unlike section 8 – court has the power there to
check the validity of the agreement under 11.
1. Unlike Section 8 of the A&C Act62, Section 11 does not
contain any explicit reference to the power of the court to
determine the validity of arbitration agreement.
2. However, the phrase “existence of arbitration agreement”
as reflected in Section 11 of the A&C Act has been held to
include the aspect of validity of arbitration agreement and
the scope of judicial review of the court under the two
provisions have been held to be identical.
3. However, Section 11 of the A&C Act does not specify a
fixed time by which any objection with respect to the
existence of the arbitration agreement ought to be raised.
4. In the absence of such a limit, pursuant to Section 4(b) of
the A&C Act, a party may be required to raise an objection
without undue delay. Delay has been considered in
petitions under Section 11 of the A&C Act wherein a party
at a belated stage has been precluded from raising
objections with respect to arbitrability of the dispute,
having not raised the said objection previously.
5. In BSNL v. Motorola India (P) Ltd., the appellant
challenged the order of the Hon'ble High Court appointing
an arbitrator pursuant to Section 11 of the A&C Act on the
 ground that the arbitration agreement did not cover a
dispute with respect to liquidated damages.
6. The Hon'ble Supreme Court relied on Section 4 of the A&C
Act and held that after the Hon'ble High Court had passed
orders appointing the arbitrator subject to further
objections, the appellants ought to have raised an
objection prior to the first arbitration hearing and since the
appellants had not raised any such an objection, the
appellants had clearly failed to meet the stated
requirement to object to the arbitration without delay;
hence, the Hon'ble Court held that their right to object was
deemed to be waived.
7. It is well established that mere participation in the
appointment of an arbitrator cannot be termed deemed
waiver of the party's right to object on the grounds of
jurisdiction or arbitrability.69 This is in consonance with
Section 16(2) of the A&C Act which states that merely
because a party has participated in the appointment of an
arbitrator, it cannot be precluded from raising an objection
on the grounds of jurisdiction or maintainability.
8. Therefore, it can be argued that in the absence of a fixed
time, the appropriate time-limit by which objection should
be raised will be subject to the facts and circumstances of
the case.

Section 4 and Sections 12 and 13 of the Arbitration and

Conciliation Act
 Haryana Space Application Centre v. Pan India
Consultants (P) Ltd. (
 Bharat Broadband Network Ltd. v. United Telecoms
Ltd.
 Mere Participation in the proceedings cannot be considered to be an waiver unless there is a
express waiver to that regards.

Section 12 of the A&C Act provides the grounds of challenge to

the appointment of an arbitrator and Section 13 lays down the
procedure for challenging the arbitrator. Under the said
provisions, a party who wishes to challenge the appointment
must raise its objection within the following time-frame:
(a) provided under the agreement; or,
(b) within fifteen days from the date on which the tribunal is
constituted or the party becomes aware of the circumstances of
conflict.
A party, however, who has participated in the appointment of
an arbitrator is not precluded from raising an objection under
Section 12 of the A&C Act if he becomes aware of the
circumstances after the appointment.
The waiver of a party's right to object with respect to
institution of Section 12 of the A&C Act may be contingent upon
the nature of the ineligibility.
The Law Commission of India in its Report suggested having
two lists, one based on the red and orange lists of the IBA
Guidelines on Conflicts of Interest in International Arbitration
and the other being a smaller more serious subset of situations.
Accordingly, Section 12 of the A&C Act was amended to
include two schedules: the Fifth Schedule and the
Seventh Schedule.
With respect to the latter, in Haryana Space Application
Centre v. Pan India Consultants (P) Ltd. (Haryana), - this
case said that 12(5) cannot be derroated from but it failed to
look at the proviso of that - the Hon'ble Supreme Court held
that notwithstanding any prior agreement, Section 12(5) of the
A&C Act read with the Seventh Schedule was a mandatory
provision which could not be derogated from. However,
the Hon'ble Court in Haryana failed to consider the
proviso to Section 12(5) of the A&C Act which permits
parties to waive such ineligibility subsequent to the
dispute arising between the parties.
This right to waive an ineligibility of the arbitrator was based
on the Law Commission of India envisaging situations such as
family arbitrations, where parties, subsequent to the dispute
arising, may want to retain an arbitrator despite his ineligibility.
However, the Hon'ble Supreme Court has clarified in Bharat
Broadband Network Ltd. v. United Telecoms Ltd.82, that
while waiver under Section 4 of the A&C Act includes cases of
deemed waiver by conduct, the waiver under Section 12(5) of
the A&C Act must be by way of an express agreement in
writing by the parties.
The Hon'ble Court also held that given the express language in
Section 12(5) of the A&C Act, Section 4 of the A&C Act would
not apply.
Hence, merely by participating in an arbitration proceeding or
by failing to object, a party cannot have deemed to have
waived its right to object under Section 12(5) of the A&C Act as
it is a mandatory provision.

Section 4 and Section 16 of the Arbitration and Conciliation Act

 If it is not raised prior to that it is considered to be waived.
But if it was raised even earlier like in section 11
application but not before the tribunal, it was not
considered to be waived.
 But a part cannot directly go for the challenge at the stage
of 34 without expressing the same before the section 16
tribunal.
1. Section 16 of the A&C Act encompasses the kompetenz
kompetenz principle and governs the power of the Arbitral
Tribunal to rule on its own jurisdiction. However, any
objection with respect to the Arbitral Tribunal's jurisdiction
must be raised at a stage not later than the submission of
the statement of defence and a plea that the Arbitral
Tribunal is exceeding its authority should be raised as
soon as it is possible. Any delay in making such a plea,
may be condoned subject to the party being able to justify
such delay.
2. In Konkan Railway Corpn. Ltd. v. Rani Construction
(P) Ltd. the Hon'ble Supreme Court held that the
authority of the Arbitral Tribunal under Section 16 of the
A&C Act is not confined to the width of its jurisdiction, but
goes to the very root of its jurisdiction. Therefore, the
Arbitral Tribunal has wide powers to determine any
objection that affects its jurisdiction. However, any such
objection must be raised within the time stipulated
in the said provision. Should an award be passed
without an objection being raised with respect to
jurisdiction within the time period provided, the
courts have held that an award cannot be annulled
on the said ground.
3. In the more recent decision of Quippo Construction
Equipment Ltd. v. Janardan Nirman (P) Ltd.92, the
Hon'ble Supreme Court reiterated this finding and held
that where the respondent despite being aware of
the proceedings, had not participated in the
arbitration proceedings and raised the objections
with respect to the jurisdiction, the respondent was
deemed to have waived all such objections. However,
even where a party did not raise the objection before the
Arbitral Tribunal under Section 16(2) of the A&C Act but
raised it in the earlier proceedings under Section 11
of the A&C Act which was pending appeal, the
Hon'ble Supreme Court held that the principle of
waiver would not be applicable. Therefore, it appears
that a party that was aware of the arbitral proceedings but
chose not to participate in the proceedings and has also
not raised it in any stage prior to the petition under
Section 34 of the A&C Act, is deemed to have waived its
right to object.
Section 4 and Section 34 of the Arbitration and Conciliation Act
The grounds provided under Section 34(2)(a) and (b) of the
A&C Act can be divided into three categories —
a. grounds which affect the jurisdiction of the arbitration
proceedings;
a. With respect to the first ground on the jurisdiction of
the Arbitral Tribunal, as stated earlier, a party is
deemed to have waived its right to object in a
proceeding under Section 34 of the A&C Act if it did
not raise the objection before the Arbitral Tribunal
under Section 16 of the A&C Act.
b. grounds which affect party interest alone; and
c. grounds which go to the public policy of India as explained
in the Explanation contained therein.
However, in the case of other grounds, (other than) any
number of irregularities in the arbitral proceedings may form
the basis for such a ground. In such a case, to avoid waiver by
conduct, a party must make clear that he is proceeding
with the arbitration despite such irregularity without
prejudice to his right to raise such an objection at a
later stage. This provides sufficient opportunity to not only
rectify the irregularity but also prevents a court from holding
that such an irregularity has been waived at a later stage.
In addition, with respect to some grounds such as public policy
of India under Section 34(2)(b)(ii) of the A&C Act where an
element of public interest may be involved, the doctrine
of waiver cannot be applied. Thus, the applicability of
Section 4 of the A&C Act to Section 34 of the A&C Act, may be
subject to the nature of the ground being taken by the party to
challenge the award.

CONCLUSION
The issue of waiver is often a contentious one. The party who is
driving an arbitration may want to take advantage of the
tardiness of the rival party. This problem is more pronounced in
India where ad hoc arbitration is very common and institutional
arbitration is only beginning to make inroads. Part of the
solution lies in the moving to institutional arbitration since the
process in institutional arbitration is far more definite.
Additionally, institutions have a mechanism to deal with the
many of these issues that relate to waiver.
The question of how stringent the rule of waiver should be, has
no easy answer. The effect of a waiver could be to extinguish a
right in a party. On the other hand, it should also not amount to
rewarding (or not penalising) a party who has not been diligent.
One way in which to balance the two to ensure efficiency, could
be to introduce a more rigorous regime of costs, which the Act
provides for but is not being implemented sufficiently. If a party
wishes to contest a waiver, it ought to be saddled with suitable
costs.
Ultimately, the law would have to ensure that justice is done.
Arbitration proceedings cannot be removed from this notion.
Indian courts must also strive to ensure a pro arbitration tilt by
keeping interventions to the minimum. Where a balancing act
is needed by a court intervention on account of the lack of
diligence on the part of a party to promote efficiency, it cannot
be without consequences of costs. One hopes that such a
regime would ensure that parties are a lot more diligent and
efficient. If parties do that, the whole question of waiver may
become academic in time to time, which ironically, may be the
most fitting tribute to the provision.
 3. Section 8 of the Arbitration & Conciliation Act, 1996, Does
Not Envisage Making of a Separate Application If Due
Objection is Made Before the Court to its Jurisdiction

The Hon’ble Delhi High Court in Madhu Sudan Sharma &

Ors. v. Omaxe Ltd. recently held that once a party has taken
objection in its written statement to the jurisdiction of the Court
to entertain the suit due to the presence of the arbitration
clause between the parties, it would amount to sufficient
compliance of Section 8 of the Arbitration & Conciliation Act,
1996 (“the Act”). The Court also held that once a party extracts
an arbitration clause in its written submission to object to the
jurisdiction of the Court, a separate application under
Section 8 of the Act would not be necessary.
The implication here is that when a party takes such an
objection to the maintainability of the suit, it need not file a
separate application under Section 8 of the Act to
convince the Court regarding the non-maintainability of
the suit because of a binding arbitration clause between
the parties.

Brief Background
1. Madhu Sudan Sharma case,
2. Facts
a. Appellant – challenged the decision of the trial court
in the recovery suit – it raised the objection in that
suit – but it was not considered. – but no separate
application was made – held – that it can be allowed –
the separate application was not needed in any case.
b. the appellants and the respondent executed a
Memorandum of Understanding (“MoU”) dated May
2, 2005, in which the appellants were to acquire 29
bighas of the respondent’s land. The MoU contained
provisions permitting the respondent to terminate it if
the appellants failed to get the required land
clearances. In such an instance, the appellants would
 have to reimburse the respondent’s payment and all
related charges
c. Allegedly, with obligations under the MoU remaining
unfulfilled, the respondent filed a civil suit against the
appellants under Order XXXVII of the Civil Procedure
Code, 1908 (“CPC”) to recover INR 87,42,500 paid to
the appellants along with interest.
d. The appellants applied for leave to defend the suit,
contending that several issues needed consideration,
including the maintainability of the suit because of an
arbitration clause in the MoU. The respondent,
however, contended that the suit was maintainable
under the Act. The Court granted conditional leave to
the appellants to defend the suit, with specific
conditions.
e. Throughout the legal proceedings before the
subordinate court as well as the Delhi High Court, the
appellants persistently invoked Section 8 of the Act
and submitted that the suit was not maintainable
because of the arbitration clause contained in the
MoU. The Court didn’t consider the appellants’
objection to the maintainability of the suit and
proceeded to decree the suit vide the impugned
judgment dated July 15, 2019. The aggrieved
appellants then challenged the impugned
order/decree under Section 96 of the CPC,
leading to the passing of the present
judgment.
3. Arguments by the appellants
a. The appellants challenged the impugned
order/decree on the basis that a Section 8 of the Act
mandates that the party request arbitration “not later
than when submitting the first statement of the
substance of the dispute,” which the appellants had
complied with.
b. The appellants contended that they had raised a
Section 8 objection once in the written statement
filed consequent to the liberty granted and next in a
previous application under Order XXXVII Rules 3(5) of
 the CPC, whereby they had sought leave to defend
the suit.
c. The appellants also argued in the rejoinder that the
plea of waiver was unfounded. The impugned order
acknowledged their objection to the suit’s
continuation despite the arbitration agreement in the
MoU, which they had also raised in their written
statement
4. Respondents Submissions
a. Counter to the appellants’ contentions, the
respondent submitted that the appellants’ objections
to the maintainability of the suit predicated on
Section 8 of the Act were belated as they had not
raised these before the submission of the first
statement on the merits of the case.
b. The respondent argued that the mere raising of an
objection regarding the maintainability of the suit in
the written statement could not amount to
compliance with the requirements of Section 8 of the
Act, as the provision necessarily envisages making a
separate application.
c. Additionally, by granting conditional leave to defend,
the Judge had considered the appellants’ objections
under Section 8 of the Act and rightly rejected them
while proceeding to decree the suit. Further, the
respondent contended that in the event the
appellants’ initial objection sufficed, the appellants’
subsequent conduct in contesting the suit and
allowing it to proceed to trial and judgment
constituted a waiver and abandonment of their right
to invoke Section 8.
5. Held:
a. At the outset, the High Court rejected the
respondent’s contention that the appellants’
objection was belated. The Court quoted the Section
8 of the Act to emphasise that an application to refer
the dispute to arbitration could not be submitted
after the first statement on the substance of the
dispute, i.e., the written statement. Thus, it was
 acceptable to submit a Section 8 application with or
before the filing of the written submission. The Court
noted that, in the present case, the appellant had
made the Section 8 objection not just in the written
statement, but even earlier, in the application under
Order XXXVII Rule 3(5) CPC for grant of leave to
defend the suit.
b. The Court, therefore, observed that the Commercial
Court had erred in holding that the Section 8
objection was raised belatedly.
c. On the requirement of a separate application under
Section 8 of the Act, the Court held that once an
arbitration clause was extracted in the written
submission, it would be too hypertechnical to
hold that the objection was not made until the
filing of a separate application contesting to
the maintainability of the suit.
d. The Court observed that it was bound by the
judgment of the Division Bench of this Court in
Sharad P. Jagtiani v. Edelweiss Securities Ltd.
[2] The Division Bench had held that in the absence
of a specific request to refer the dispute between the
parties to arbitration, raising objection stating that
the suit was not maintainable because of the
arbitration clause could be interpreted as an
implied request to refer the dispute to
arbitration. The Court, therefore, held that a
specific application or even a request to refer
the parties to arbitration was not a non-
negotiable pre-requisite for making a Section 8
objection when the objection was contained in
the written statement itself.
e. The court also noted the Hon’ble Supreme Court’s
judgment in Sukanya Holdings Pvt. Ltd v.
Jayesh H. Pandya,[3] where the Apex Court had
held that Section 8 of the Act mandated requesting
for a referral of the dispute to arbitration to divest
the civil court of its jurisdiction to decide the dispute.
In doing so, the court explicitly clarified that its
 judgment in Sharad (Supra) merely supplemented
the principle enshrined in Sukanya Holdings (Supra)
and did not, in any manner, supplant or rule contrary
to it.
f. The Court also referred to the Supreme Court
judgment in SBP & Co. v. Patel Engineering Ltd.,
[4] which unequivocally held that where a suit is
instituted, in ignorance of the arbitration agreement
between the parties, and the opposite party raises an
objection based on Section 8 of the Act, the Court is
bound to refer the parties to arbitration if the
objection is found to be sustainable.
6. Whether a petition fo rejection of plaint based on
Section 8 is sufficient or we need a separate
application:
a. Recently, the High Court of Telangana at
Hyderabad in Naolin Infrastructure (P) Ltd. v.
Kalpana Industries, scrutinised, whether
submitting an application in accordance with Order 7
Rule 115 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the CPC”), might satisfy
the stipulations outlined in Section 8 of the
Arbitration and Conciliation Act.
b. The ratio of this judgment has sparked much
debate: Can an application for rejection of a
plaint under Order 7 Rule 11 CPC on the basis
of the arbitration clause itself be adequate
notice to the court to refer the parties to
arbitration?
c. Section 8 of the Arbitration and Conciliation Act,
however, declares that any judicial authority, on
whom such award is sought to be enforced, before
which an application is made for such purpose, shall,
if it finds that such award relates to a matter which is
within the scope of the arbitration agreement, refer
the parties to arbitration.
d. This has to be done upon the application of a party
made not later than when the first statement on the
substance of the dispute is filed. However, such an
 application is not be entertained unless a copy
of the original arbitration agreement or a duly
certified copy thereof is produced before the
Court.
e. On the other hand, Order 7 Rule 11 CPC lists grounds
for rejecting a plaint, such as the –
i. plaint failing to identify a cause of action,
ii. the relief claimed being underestimated,
iii. the relief claimed being barred by law,
iv. the plaint not being properly stamped, and so
on.
f. When a defendant files an application under Order 7
Rule 11 CPC, claiming that proceedings cannot be
maintained due to an arbitration agreement, the
defendant is essentially arguing that the court lacks
jurisdiction in the matter because the dispute must
be resolved through arbitration.
g. In Naolin Infrastructure (P) Ltd. case, the
Telangana High Court has dealt with the issue of a
case wherein an application was moved by the
defendant before the Court under Order 7 Rule 11
CPC for rejection of the plaint on the ground that the
dispute was covered by an arbitration agreement.
The Court was called upon to decide as to whether
such an application could be held to be considered
under adequate compliance with Section 8 of the
Arbitration Act.
h. The Court held that an application under Section 8 is
in the nature of an intimation to the court regarding
the existence of an arbitration agreement. This
makes the court relieved of its assumption that there
was no ousting of its jurisdiction. Besides this, the
court mentioned that with special law, such as the
Arbitration and Conciliation Act, it has to supersede
the general law, like the CPC, so that delay in the
dispute resolution process does not go ahead further.
The Court brought into the notice the fact that an
application of this type i.e. Order 7 Rule 11 CPC,
bringing to the notice of the court existence of an
 arbitration agreement, should be construed to satisfy
the provision of Section 8 of the Arbitration and
Conciliation Act, namely, notice to the court that the
case be referred to arbitration.
i. In Vidya Drolia v. Durga Trading Corpn., the
Supreme Court of India, specifically indicated a
requirement whereby judicial intervention under
Section 8 must be restricted. In this case, the Court
emphasised that the scope of civil courts at the
referral stage is only to perform a prima facie review
of the existence and validity of the arbitration
agreement. This court held that the
determination that Arbitral Tribunal is the
appropriate Tribunal to try the dispute,
including those issues of arbitrability, directs
the courts to generally defer to arbitration
except when it is “clearly” apparent that the
arbitration agreement does not exist or is
invalid or that the dispute is clearly non-
arbitrable.
j. Therefore, this narration illustrates the principle that
once an arbitration agreement is brought to the
notice of the court — as in the case of an application
under Order 7 Rule 11 CPC, the jurisdiction of the
court would stand ousted, and the court is then
bound to refer the parties to arbitration without
entering into protracted judicial debate.
k. In Sundaram Finance Ltd. v. T. Thankam, the
Supreme Court of India analysed one of the
important principles of civil court proceedings where
the arbitration agreement exists.
i. The Court held that once an application is filed
under Section 8 of the Arbitration Act, the focus
of the civil court would shift from whether it has
jurisdiction to whether its jurisdiction has been
ousted by the arbitration agreement.
ii. This is necessary, for whilst researches on
jurisdiction are generally found, the specific
question here posed is whether the court's
 jurisdiction over the case has been taken away
by a statute, in this case, by the Arbitration and
Conciliation Act.
iii. The rule of “generalia specialibus non
derogant”, that special legislation takes
precedence over general statutes-forms the
basis of this approach. Thus, civil courts should
prioritise the provisions of the Arbitration and
Conciliation Act to avoid unnecessary delays
and complications, thereby, streamlining
dispute resolution and reducing case pendency.
l. The Delhi High Court in Madhu Sudan Sharma v.
Omaxe Ltd.9 held that that the law concerning the
need to refer disputes to arbitration under the
Arbitration and Conciliation Act, as incorporated by
Section 8(1), is crystal clear and leaves no scope for
any ambiguity. The Court explained that this
requirement is more procedural than substantive in
nature. The basic condition required under Section 8
is an arbitration agreement in existence between the
parties. Once there is a valid and existing arbitration
agreement, the court's jurisdiction to adjudicate the
dispute has been ousted by its recognition of such an
arbitration agreement. The formalities of requesting a
reference to arbitration are secondary; what is crucial
is that the court is informed of the arbitration
agreement. This principle leads to the fact that
once the arbitration agreement is brought to
the notice of the court, the court becomes
coram non judice meaning thereby there is lack
of jurisdiction to continue entertaining the suit.
Any further action on the case by the court
would be without jurisdiction.
7. A conspectus of the above narration would reveal that
whenever an application is filed for the rejection of a plaint
on account of a subsisting arbitration agreement, that in
itself, would be sufficient notice to the court to refer the
dispute to arbitration and the court would lack jurisdiction
to entertain the matter, any time after such a disclosure.
 4. Section 10 - Narayan Prasad Lohia v. Nikunj Kumar Lohia
[2002] 38 SCL 625 (SC)
Relevant Sections:

1. Section 10
2. Section 16
3. Section 34

The case revolved around the composition of an arbitral

tribunal. The Appellant argued that Section 10 of the Arbitration
and Conciliation Act, 1996, was a mandatory provision that
could not be ignored. According to sub-section (1) of Section
10, parties could decide the number of arbitrators, but the total
number could not be even. Sub-section (2) further stated that if
the parties did not specify the number of arbitrators, the
tribunal would automatically consist of a sole arbitrator.
The Appellant pointed out that while parties had the freedom to
decide the number of arbitrators, they could not choose an
even number. It was also contended that any agreement
allowing an even number of arbitrators would be against the
mandatory provisions of the Act and, therefore, legally invalid.
Issues before the Court

 Is Section 10 of the Arbitration Act a provision that cannot

be ignored or set aside under any circumstances?
 Can parties voluntarily agree to waive a mandatory
requirement of the Arbitration Act?

Appellant's Arguments:

i. The appellant argued that the arbitration agreement was

invalid because the Arbitral Tribunal was not properly
formed.
ii. Since the tribunal itself was not validly constituted, any
proceedings or awards made by it would also be invalid
and unenforceable.
iii. The appellant contended that a legally flawed tribunal
could not pass a binding decision.
Respondent's Arguments:
 i. The respondents countered by citing Sections 4, 10, and
16 of the Arbitration Act, stating that these provisions
should be interpreted harmoniously to avoid conflicts.
ii. They emphasized that Section 10 begins with the
phrase, "The parties are free to determine the number of
arbitrators," meaning arbitration is based on mutual
agreement
iii. The respondents argued that:

a) The parties could mutually agree on an even

number of arbitrators.
b) Even after agreeing to an even number, a party
still had the right to object to the tribunal’s
composition.
c) Such an objection could be raised even if the party
had participated in appointing the arbitrator, as per
Section 16(2).
d) Section 16 was broad enough to allow objections
regarding the composition of the tribunal.

iv. It was further submitted that an award could only be

challenged on the grounds of tribunal composition if an
objection had first been raised before the tribunal under
Section 16 and had been rejected. Therefore, the
challenge needed to be made at the earliest opportunity.
v. Additionally, the respondents pointed out that Section
34(2)(a)(v) does not allow an award to be set aside on the
ground of tribunal composition if it was formed as per the
parties' agreement.
vi. In the present case, the tribunal’s composition was
claimed to be in line with the agreement between the
parties.

Analysis of the Court

The Supreme Court analyzed Sections 10 and 16 of the
Arbitration Act and concluded that an objection to the
composition of the Arbitral Tribunal is not mandatory
(derogable). This means that if a party does not raise an
objection within the time limit mentioned in Section
16(2), they lose the right to challenge it later. The Court
clarified that Section 10 should be read along with Section 16,
making it clear that the provision is not absolute.
The Court further stated that even if a party was involved in
appointing the arbitrator or participated in the process, they
could still challenge the tribunal's composition later. However,
it rejected the appellant’s argument that Section 10 should be
treated as a matter of public policy and made non-derogable.
The Court reasoned that arbitration is based on an agreement
between the parties, and it is not possible for the Legislature to
regulate every aspect of it in detail.
Concluding Remark
In simple terms, the current legal position is that parties can
appoint an even number of arbitrators, even though this seems
to go against the intent of the law. However, if any party has an
objection to this, they must raise it at the earliest opportunity
before the Arbitral Tribunal itself. After the Supreme Court’s
ruling, the law has essentially been reaffirmed to align with the
literal wording of the statute, despite the proviso in the section
suggesting otherwise.
 5. Section 12 - Delhi High Court sets aside arbitral award due
to violation of S. 12(5) Arbitration Act - Union Of India v. M.
V. Omni Projects (India) Ltd., O.M.P. (Comm) 355 of 2023,
Order dated 08-05-2024
A petition under Section 34 of the Arbitration and Conciliation
Act, 1996, (‘the Act’) was filed by Union of India (‘UoI’), the
petitioner, for setting aside an award passed by the sole
arbitrator on the ground that the arbitrator was appointed
unilaterally by UoI.
Jasmeet Singh, J., while allowing the petition, held that an
award passed by an arbitrator who is appointed unilaterally is a
nullity and is liable to be set aside.
Facts:
In 2015, UoI issued an open tender for construction work at
Dwarka, New Delhi. The project included various components
such as institutional and hostel blocks with a basement,
auditorium, boundary wall, and comprehensive infrastructure
systems. The respondent participated in the tender and was
awarded the contract through. The work was to be completed
within 15 months, however, due to disputes, the respondent
invoked arbitration per the arbitration clause under the General
Conditions of Contract (‘GCC’). When UoI failed to appoint an
arbitrator, the respondent filed a Section 11 petition before the
Court, leading to an order to appoint an arbitrator.
Consequently, the Addl. Director General appointed a Sole
Arbitrator, who conducted the arbitration, and passed an
award, partially favouring the respondent.
Contention of UoI
UoI contended that the appointment of the sole arbitrator was
invalid under Section 12(5) of the Act, and that Addl. Director
General was ineligible to appoint the arbitrator, thereby
rendering the arbitration proceedings null and void.
Contention of Respondent
The respondent contended that the appointment was made
pursuant to the Court order in passed by the Court in the
Section 11 petition, and therefore, was not unilaterally done by
UoI.
Decision and Analysis
Upon hearing the submissions made by the parties, the Court
noted that it was a well-established principle that a unilateral
appointment of an arbitrator was not legally permissible.
The Court relied on Bharat Broadband Network Ltd. v.
United Telecoms Ltd. (2019) 5 SCC 755 wherein it was
observed that Section 12(5) of the Act invalidated any prior
agreement if the arbitrator falls under any category listed in
the Seventh Schedule, unless waived by an express written
agreement after the disputes have arisen.
The Court further relied on its recent decision in
Telecommunication Consultants India Ltd. v. Shivaa
Trading 2024 SCC OnLine Del 2937, reiterating that any
arbitration proceedings by an ineligible arbitrator under Section
12(5) are void ab initio. Thus, the Court held that the
appointment by UoI violated Section 12(5) and also the law laid
down on the subject vide several Supreme Court judgments.
The Court, therefore, allowed the petition and set aside the
award.
 6. Section 16 - A Domineering Power in the Hands of
Arbitrator

For quite some time now, Indian courts have been promoting
alternate modes of resolving disputes amongst the parties,
provided such alternate modes of resolving disputes are agreed
upon by the parties consensually, and thus, eliminating the
need to delve into intricacies of the case itself and referring the
parties to opt for alternative mechanisms for speedy and
effective resolution of disputes.
Generally, while appointing an arbitrator, the courts primarily
and solely take into consideration whether there exists an
arbitration agreement between the parties, in writing, or if
there stands any communication with that effect in terms of
Section 71 of the Arbitration and Conciliation Act, 19962
(Statute). Further, the courts have held that any grievance of
the party(ies) referred to arbitration based on the arbitration
clause, has to be raised before the arbitrator itself and not
before the court, including the validity of the agreement
containing the arbitration clause including the jurisdiction of the
appointed arbitrator to adjudicate the
disputes/claims/counterclaim raised or propose to be raised.
Section 163 of the Statute itself provides for the Arbitral
Tribunal4 to rule on its own jurisdiction as whether to preside
over a particular dispute referred to it or not. This power of the
Arbitral Tribunal aims at reducing the burden on the already
overburdened courts of our country. However, the power given
to an Arbitral Tribunal to rule on its own jurisdiction is not
something, which should be exercised in a usual/carefree
manner but the same has to be exercised with great caution
and responsibility because as per the provisions of the Statute,
if the Arbitral Tribunal uses its power to affirm its jurisdiction
over a dispute, then the party aggrieved has to await
completion of the arbitral proceedings and in terms of Section
16(6) of the Statute, the only remedy left is to voice its
concerns via filing of objections under Section 345 of the
Statute. Therefore, it is discretionary concomitant power vested
with the Arbitral Tribunal that must be exercised responsibly,
judicially and in manifest compliance of principles of natural
justice.
Adding to the prowess of the already empowered Arbitral
Tribunal, the courts have interpreted that such power covers
within its sweep the power to rule on its own jurisdiction6 in
cases where the issue is raised on the power of the Arbitral
Tribunal regarding joinder of third parties to arbitral
proceedings.

The power of the Arbitral Tribunal to implead or add a non-

signatory as a party in an ongoing arbitral proceeding has been
opined variedly by the High Courts. While on one hand the
Delhi High Court has held that no power to implead a non-
signatory is vested with the Arbitral Tribunal7 and on the other
hand held that such power is duly vested with the Arbitral
Tribunal.8 Further, the Bombay High Court has clearly
recognised the power of the Arbitral Tribunal to implead non-
signatory as a party to the ongoing arbitral proceedings and
decide on its own jurisdiction over such issue, if objected by
such non-signatory during the arbitral proceedings.9
The Supreme Court in Cox & Kings Ltd. v. SAP India (P) Ltd.10
followed by Ajay Madhusudan Patel v. Jyotrindra S. Patel11, has
put a quietus on the issue regarding the power of the Arbitral
Tribunal to implead a non-signatory in the arbitral proceedings
and its power to decide on its jurisdiction in case of non-
signatory challenging the jurisdiction of an Arbitral Tribunal, by
affirming that it is for the Arbitral Tribunal to decide, as per the
facts and circumstances of each case, if such non-signatory is
to be impleaded as a party to the arbitral proceedings.
The Supreme Court in “SBI General Insurance Co. Ltd. v. Krish
Spinning12” and Ajay Madhusudan Patel case13 stated that all
the courts have to see solely is the prima facie existence of
arbitration clause or an agreement, in writing, including the
conduct of the parties regarding referring their disputes to
arbitration. If the courts at a prima facie view arrive at a
decision as to the existence of the arbitration agreement
between the parties, then all the objections of the parties with
respect to the validity/illegality/jurisdiction/legality should be
raised before the Arbitral Tribunal itself and not before the
courts. This proposition stems from the object and reason of the
Arbitration and Conciliation Act, 1996 which aims at reducing
judicial interference in the matters pertaining to arbitration. It is
all the more necessary because the parties who have mutually
decided to settle their disputes byway alternate dispute
resolution mechanisms, deem to have surrendered their right to
agitate the disputes so arisen before the courts i.e. they shall
first knock the doors of the Arbitral Tribunal for adjudication of
the disputes and if aggrieved by the orders or the award
passed by the Arbitral Tribunal, they can challenge the same
before the courts.
Earlier there was a trend that the courts used to go into the
merits of the case so as to satisfy themselves regarding the
existence and validity of the arbitration agreement between the
parties and check whether the disputes are arbitrable or
whether the Arbitral Tribunal has exceeded his jurisdiction or
not. This practice of the courts was discouraged by the
Supreme Court. The Supreme Court in Martin Burn case14 in
para 27 has held that—

A prima facie case does not mean a case proved to the hilt, but
a case which can be said to be established if the evidence
which is led in support of the case were to be believed.

The courts have now shifted their stance from entertaining such
jurisdictional and maintainability issues to leaving such issues
for the dispute resolution mechanism, opted by the parties for
the adjudication of such disputes, thereby reducing their
burden and paving the way for minimum judicial interference,
which was the intention behind the enactment of a special law
by way of Statute.
In A. Ayyasamy case15, the Supreme Court held that when an
application under Section 816 of the Statute is filed before the
civil court then the courts must not see that whether they have
jurisdiction to try this case before them, instead it must be seen
that whether their jurisdiction is being ousted or not by any law
in force. Following the maxim “general law should yield to the
special law ¾ generalia specialibus non-derogant”, it has been
the rule that when there is a special law in force for a particular
kind of dispute then the general rule should not be applied
unless and until the special rule provides for it.

Under Section 16 of the Statute, the Arbitral Tribunal itself has

been vested with the power to rule upon its jurisdiction.
Further, various courts while scrutinising upon the jurisdiction
of the Arbitral Tribunal to decide upon disputes with the
allegation of fraud have opined that the allegations of fraud
have been long dealt with by the civil courts in the context of
civil and commercial disputes.17 So, there should not be any
reason to exclude such disputes from getting resolved through
arbitration.

The Supreme Court in Vidya Drolia case18 observed that

allegations of fraud until they relate to a civil dispute can be
made subject-matter of the arbitration. Also, in Deccan Paper
Mills case19, it was held that merely because a transaction
involves criminal overtones, it does not mean that the subject-
matter becomes non-arbitrable.

Recently, the Delhi High Court in the matter titled Home & Soul
(P) Ltd. v. T.V. Today Network Ltd.20, wherein the appellant has
approached the Court in writ jurisdiction aggrieved from an
order passed by the Arbitral Tribunal, who has disposed of the
application filed by the appellant under Section 16 of the
Statute challenging the jurisdiction of the Arbitral Tribunal on
the point of limitation, held that if any challenge to the
jurisdiction of the Arbitral Tribunal is raised before the arbitrator
under Sections 16(2) and (3) of the Statute, then the arbitrator
may either accept or reject such contention raised and in such
case if the contention of the party, raising the issue of the lack
of jurisdiction of the Arbitral Tribunal to adjudicate, is accepted
by the Arbitral Tribunal then the said order is appealable under
Section 3721 of the Statute otherwise the same has to be
challenged, if aggrieved by such order, only after the passing of
the arbitral award under Section 34 of the Statute. Simply put,
if the Arbitral Tribunal rejects the contention raised by a party
regarding the lack of jurisdiction of Arbitral Tribunal, then the
only remedy left with the party is to challenge the said order
passed by the Arbitral Tribunal under Section 34 of the Statute
i.e. after passing of the arbitral award by the Arbitral Tribunal,
until which the arbitral proceedings shall continue without any
hindrance.

Taking into consideration the narrow scope of Section 34 of the

Statute, the parties must be very careful and mindful before
agreeing to a dispute resolution clause in an agreement
because such contentions/issues raised and if adjudicated
against, leave no or little scope of overturning of such decision
by the Division Bench under Section 37 of the Statute or by
High Court under writ jurisdiction or Supreme Court under
special leave. All this eventually leads to unwanted delay which
defeats the very purpose of the party to resolve the disputes
via alternative dispute resolution (ADR) mechanism.

In Booz Allen case22, the Supreme Court provided with non-

exhaustive list to act as an example as nowhere all the disputes
can be made subject-matter of arbitration. Whilst differentiating
between the actions in rem i.e. the actions that affect the world
at large, as contrasted from the actions/rights in personam,
which involves an action that affects the parties only, the
Supreme Court held that traditionally all the disputes that arose
out of actions in personam are considered as arbitration-
friendly and can be settled through a private forum, while on
the other hand all the rights that arose from the actions in rem
are needed to be adjudicated by a public forum such as courts,
being not suitable for arbitration. However, it was also observed
that this not being a rigid or inflexible rule, disputes that relate
to subordinate rights in personam arising from rights in rem are
and have always been considered to be arbitrable.

The Delhi High Court in the matter titled NCC Ltd. v. Indian Oil
Corpn. Ltd.23 held that unless there is a chalk and cheese or
black and white situation, the Court concerned under Section
1124 should follow the conservative course and allow parties to
have their say in front of the Arbitral Tribunal. If there is any
contest concerning the issue as to whether the dispute
concerned falls within the realm of the arbitration agreement,
then the best recourse to this would be to allow the arbitrator
to form a view in the matter and the courts should avoid
adjudicating on the same. This will save the cost incurred by
the parties due to unnecessary litigation. The courts should
check the ulterior motive and discourage such litigation
strategies/activities of the parties avoiding recourse to
arbitration.

The Statute and then the pro-arbitration approach of the higher

courts has led to the widening of the scope of the powers
vested with the Arbitral Tribunal to decide a particular dispute
without judicial intervention. This widening of the scope of the
Arbitral Tribunal is aimed at reducing judicial intervention of the
courts sans which object of the Statute cannot be achieved and
entertaining every challenge or appeal made before them
against any order passed by the Arbitral Tribunal would
tantamount to adding burden to an already burdened judicial
system.

The moot question which arises at this point is whether the

Arbitral Tribunal should or should not be clothed with such
powers against which there is a solution but with limited focus?
One cannot shy away from the fact that the only remedy left
with the aggrieved party in an instance if the arbitrator is in
cahoots with the other party, be it for impleading a non-
signatory or passing of a biased award, is to wait until the
award is passed by the Arbitral Tribunal and hope that the same
suffers from grave patent error so as to enable him to challenge
the same under Section 34 of the Statute.

In the present scenario, where alternate dispute resolution

mechanisms are being promoted both by the judicial system
and are also been actively preferred by the parties, one needs
to take into consideration all the pros and cons of such dispute
resolution mechanism and only thereafter make a mindful
decision to enter into an agreement providing their consent for
adjudication of the disputes through such mechanisms.

In conclusion it is but necessary that since we are aware of the

overburdening of the judicial system of our country, where
disputes are so common, one requires desperate measures.
Therefore, transparent and unbiased arbitration is not only just
only an alternate remedy but the need of the hour, since the
judicial system of the country is overburdened where the
pendency with the High Courts is more than 8.3 lakhs cases,
which is pending since last 10 years. It is rightfully said that
“justice delayed is justice denied” which stands true in the
present scenario of the judicial system. Therefore, to curtail
such biasedness of the Arbitral Tribunal, institutionalised
arbitration shall be preferred by the parties where the presiding
arbitrators are not known to either of the parties or it should be
left for the courts to appoint the Arbitral Tribunal for the
adjudication of disputes. Such mode of resolving disputes
reduce the chances of one sided or staged arbitral proceedings.
Furthermore, even the arbitrators should be mindful of the fact
that the exercise of their discretion while adjudicating the
disputes is of such high amplitude that the parties have a very
narrow scope to get it set aside or modified. Thus, the Arbitral
Tribunal which has been vested with some great power, the
same shall be exercised with abundant caution and
responsibility.
1 Arbitration and Conciliation Act, 1996, S. 7.
2 Arbitration and Conciliation Act, 1996.
3 Arbitration and Conciliation Act, 1996, S. 16.
4 Arbitration and Conciliation Act, 1996, S. 2(d).
5 Arbitration and Conciliation Act, 1996, S. 34.
6 Cardinal Energy and Infra Structure (P) Ltd. v. Subramanya
Construction and Development Co. Ltd., 2024 SCC OnLine Bom
964.
7 Arupri Logistics (P) Ltd. v. Vilas Gupta, 2023 SCC OnLine Del
4297.
8 Indraprastha Power Generation Co. Ltd. v. Hero Solar Energy
(P) Ltd., 2024 SCC OnLine Del 6080.
9 Cardinal Energy and Infra Structure (P) Ltd. v. Subramanya
Construction and Development Co. Ltd., 2024 SCC OnLine Bom
964.
10 (2024) 4 SCC 1.
11 (2025) 2 SCC 147.
12 2024 SCC OnLine SC 1754.
13 (2025) 2 SCC 147.
14 Martin Burn Ltd. v. R.N. Bangerjee, 1957 SCC OnLine SC 51.
15 A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.
16 Arbitration and Conciliation Act, 1996, S. 8.
17 A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.
18 Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1.
19 Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties,
(2021) 4 SCC 786.
20 2024 SCC OnLine Del 7252.
21 Arbitration and Conciliation Act, 1996, S. 37.
22 Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011)
5 SCC 532.
23 2019 SCC OnLine Del 6964.
24 Arbitration and Conciliation Act, 1996, S. 11.
 7. Timeline to follow under Section 9(2) of the Arbitration and
Conciliation Act 1996
Section 9 + Section 21

Introduction
Section 9 of the Arbitration and Conciliation Act 1996
(“Arbitration Act”)[1] deals with the powers of courts to grant
interim reliefs, before or during arbitral proceedings or at any
time after the making of the arbitral award but before it is
enforced, to parties in order to safeguard the subject matter of
the arbitration.

Once a court has passed an order under Section 9(1)(ii), i.e., an

order of “any interim measure of protection”, then arbitral
proceedings[2] must be commenced within ninety (90) days
“from the date of such order” or “within such further time as
the court may determine” as provided under Section 9(2).

The bar on the civil court’s jurisdiction under Section 9(3) is

applicable to instances where the arbitral tribunal has already
been constituted. In this article, we have restricted our analysis
to examining the scope and ambit of Section 9(2) of the
Arbitration Act and adherence to the timeline.

The Arbitration and Conciliation (Amendment) Act 2015

inserted Subsections (2) and (3) to Section 9 of the Arbitration
Act. Before the amendment and inclusion of the timeline under
Section 9(2), the Supreme Court (“SC”), in its 1999 judgment
reported in Sundaram Finance v. NEPC India Pvt. Ltd., had
adjudicated on the timeline to commence arbitral
proceedings vis-à-vis Section 9 of the Arbitration Act. The SC
ruled that when a party seeks interim measures of
protection under Section 9, it implicitly accepts that a
final and binding arbitration agreement exists and that
a dispute referable to the arbitral tribunal has
arisen. Thus, when a Section 9 petition is filed before the
commencement of arbitral proceedings, the applicant must
demonstrate manifest intention to take effective steps in
commencing the impending arbitral proceedings. A notice
under Section 21 of the Arbitration Act may be sufficient
to establish the manifest intention to have the dispute
referred to an arbitral tribunal.

However, for a scenario where a party seeks relief under

Section 9 even prior to issuing a notice of arbitration, the SC
held that the relevant court would have to be satisfied
about the existence of a valid arbitration agreement and
the applicant’s intention to take the dispute to
arbitration. The court may also pass a conditional order under
Section 9 directing the applicant to such terms as it
deems fit with a view to ensure that the applicant takes
effective steps for commencing the arbitral proceedings.

Ambiguity about date of commencement of 90-day

period under Section 9(2) of the Arbitration Act
The twin requirements –

(i) manifest intention to arbitrate and

(ii) effective steps being taken to commence arbitral
proceedings after receiving “any interim measure
of protection” under Section 9 Arbitration Act –
must be fulfilled;

however, ambiguity exists about

(i) whether “any interim measure of protection” under

Section 9(1)(ii) includes both ad interim and interim
orders and
(ii) whether the 90-day period under Section 9(2)
commences from the date of the ad interim or the final
interim order.

The wordings of Section 9(2) of the Arbitration Act do not

distinguish between interim or ad interim orders and broadly
state that

“(2) Where, before the commencement of the arbitral

proceedings, a Court passes an order for any interim
measure of protection under sub-section (1), the arbitral
proceedings shall be commenced within a period of ninety
days from the date of such order or within such further
time as the Court may determine.”
In Information TV Private Limited v. Jitendra Dahyabhai
Patel 2024 SCC OnLine Del 810, the Delhi High Court
(“DHC”) adjudicated upon a petition under Section 11(6) of the
Arbitration Act for the appointment of an arbitrator. The
Respondent, among other things, alleged that since 2021 the
Petitioner was sitting on an interim order the Court had granted
in a Section 9 petition the Petitioner had sought and had
chosen to invoke arbitration only in 2023.

Thus, the Petitioner was barred from approaching the Court

under Section 9(2) of the Arbitration Act for not demonstrating
a clear and manifest intention to arbitrate. The DHC, relying
on Sundaram Finance held the following:

“…The Question as to when arbitral proceedings have to be

commenced after filing a section 9 petition is no longer res
integra and has been decided way back in 1999 by the
Supreme Court in Sundaram Finance…. In terms of the said
judgment, there are only two components that need to be
looked at, firstly that there has been an intention to arbitrate
the disputes and secondly, effective steps have to be taken to
commence the arbitral proceedings.”[4]

The DHC held that the petition was not barred for other reasons
pertaining to the timelines under Section 11(6) of the
Arbitration Act. However, with regard to the order passed under
Section 9, it held that such order (i) continues even if a Section
21 notice is issued and (ii) remains in effect until the conclusion
of the arbitral proceedings.[5]

In Ezen Aviation Limited v. Big Charter 2021 SCC OnLine

Del 5369, the DHC adjudicated on two appeals Ezen sought
challenging two interim orders the Single Judge under Section 9
of the Arbitration Act had passed in favour of Big Charter on
the ground that Big Charter had failed to initiate arbitral
proceedings within the statutory period as stipulated under
Section 9(2). The Court observed that “… the respondent is yet
to take steps to have its claims adjudicated through
arbitration…Section 9(2) of the Act requires that where a Court
passes an order for any interim measure or protection, the
arbitral proceedings shall be commenced within a period of
ninety days from the date of such order or within such time as
the Court may determine. This sub-Section was introduced by
the Arbitration and Conciliation (Amendment Act), 2015.
In Sundaram Finance Ltd. (Supra), the Supreme Court, while
holding that an application under Section 9 of the Act may be
filed before the commencement of the arbitral proceedings,
observed that the party invoking such jurisdiction must satisfy
the Court that it intends to take the disputes to arbitration.
While passing such an order and in order to ensure that
effective steps are taken for commencement of arbitral
proceedings, the Court can pass a conditional order to put the
applicant to such terms, as it may deem fit with a view to see
that effective steps have been taken by the applicant for
commencing the arbitral proceedings.” [6] Thus, the Court
allowed the appeal sought by Ezen and held that the interim
orders passed under Section 9 of the Arbitration Act were set
aside as the statutory period for initiation of arbitral
proceedings had expired[7] and Big Charter had taken no
action under Section 9(2).

On the other hand, the Bombay High Court in the case

of Aditya Birla Finance v. Airen Metals, COMM. ARB.PET.
(L) No. 6754 of 2021 sought to distinguish between ad
interim and interim orders qua the applicability of the 90-day
timeline under Section 9(2) Arbitration Act. The Court observed
the following: “This submission is made on the strength of
section 9(2) of the Arbitration Act. I find this argument also to
be without any merit. What has been granted by this Court on
1st April, 2021 are not interim reliefs but ad-interim reliefs. This
petition was thereafter kept for further reliefs and has not been
disposed of. In such circumstances, I do not think that Section
9(2) of the Arbitration Act would be of any assistance to the
Respondent No.1 – Company…”[8] On the contrary, in the case
of Borivali Anamika Niwas Coop Hsg Soc Ltd. v. Aditya
Developers and Ors. 2019 SCC OnLine Bom 10718, the
Bombay High Court held that “Section 9(2) Arbitration Act
requires that after an interim order is made, arbitral
proceedings must commence within 90 days from the date of
such order or within further time as the Court may permit. No
application for any enlargement of time was ever made. It was
for this reason that on 4 th November 2019 I vacated the ad-
interim relief previously granted in favour of the society.”[9].
Additionally, along the lines of the Bombay High Court order
in Borivali Anamika, in the case of Manosh Elias
Constructions Pvt. Ltd. v. Manual John 2018 SCC OnLine
Ker 6383, the Kerala High Court adjudicated on the
applicability of Section 9(2) timelines to ad interim orders and
held “that the limitations stipulated under sub-section (2) of
Section 9 will squarely apply even with respect to an ad-interim
order passed in an original petition filed under Section 9(1)”.
[10]

Consequence of non-initiation of arbitration within the

statutory 90-day period
The wordings of Section 9(2) of the Arbitration Act reflect no
express statutory consequences and/or penalties on the failure
to initiate arbitration within the 90-day period. This is also on
account of the words, “within such further time as the court
may determine”. Thus, while an automatic vacation of an
interim order of protection under Section 9(1) cannot be
presumed, the courts have set aside such orders on a case-to-
case basis. In fact, failure to initiate arbitration within the 90-
day period/taking of effective steps could demonstrate the
applicant’s lack of intent to arbitrate. This, too, after securing
an interim measure of protection in its favour and indicating
inequitable conduct.

In Shanti Dey v. Suvodeep Saha, 2016 SCC OnLine Cal

6251,[11] the Calcutta High Court held that the use of the
words“or within such further time as the Court may
determine”makes it clear that the time stipulation of ninety
(90) days is directory and, accordingly, the Court might extend
the time for commencement of arbitral proceedings. Further, it
also held that there is no penalty for default in the
commencement of arbitral proceedings within ninety (90) days.
However, Section 9(2) cannot be interpretated in a manner that
expands any situation not legislatively contemplated.[12]

Conclusion

Before the amendment to Section 9(2) of the Arbitration Act in

2015 and the insertion of the 90-day timeline, a party armed
with an interim order of protection under Section 9(1) of the
Arbitration Act had to (i) demonstrate a manifest intention to
arbitrate and (ii) take effective steps to commence arbitral
proceedings (such as a notice under Section 21 of the
Arbitration Act). However, some judgments made after the
amendment suggest that parties are required to adhere to the
90-day timeline from the date of grant of any interim order
(both ad interim and interim orders) and that courts may
vacate such interim orders granted if parties do not adhere to
the timeline. Different high courts seem to have taken different
stances, depending on the facts and circumstances of each
case and on the nature (directory/mandatory) of the timeline
under Section (2). It would be interesting to see if the issue
travels to the SC and how it deals with the same. Nonetheless,
in our view, keeping in mind the aim and intent of arbitration,
the 90-day period should be made mandatory, and a party that
has received any interim order/protection must take
effective steps to initiate arbitration within the stipulated time
frame.

[1] 9. Interim measures, etc., by Court. —

(2) Where, before the commencement of the arbitral

proceedings, a Court passes an order for any interim measure
of protection under sub-section (1), the arbitral proceedings
shall be commenced within a period of ninety days from the
date of such order or within such further time as the Court may
determine.

[2] In accordance with Section 21 of the Arbitration Act, arbitral

proceedings commence upon the issuance of a notice of
arbitration.

[3] Sundaram Finance v. NEPC India Pvt. Ltd. (1999) 2 SCC 479,
Para 19

[4] Information TV Private Limited v. Jitendra Dahyabhai Patel

2024 SCC OnLine Del 810, para 11 and 12
[5] Unless otherwise stated by the courts in its order.

[6] Ezen Aviation Limited v. Big Charter 2021 SCC OnLine Del
5369, para 8, 9, 10

[7] See also, SIPL Lifestyle Private Limited v. Vama Apparels

(India) Private Limited and Another. (2020) 267 DLT 467. The
DHC @para 27 held that while previously no limitation was
fixed for commencement of arbitration after seeking interim
reliefs under S.9. In the amended S.9, the arbitral proceedings
must begin within 90 days after interim order is passed.

[8] Aditya Birla Finance v. Airen Metals, COMM. ARB.PET. (L)

No. 6754 of 2021, para 22

[9] Borivali Anamika Niwas Coop Hsg Soc Ltd. v. Aditya

Developers and Ors. 2019 SCC OnLine Bom 10718, para 5

[10] Manosh Elias Constructions Pvt. Ltd. v. Manual John 2018

SCC OnLine Ker 6383, para 7

[11] Shanti Dey v. Suvodeep Saha, 2016 SCC OnLine Cal 6251

[12] Chaudhary Avadhesh Kumar v. Volleyball Federation of

India 2017 SCC OnLine Mad 19117, para 41
 8. Section 9 and 17 - Interim Reliefs in Arbitration: Emerging
Judicial Trends in India

In India, the Arbitration and Conciliation Act, 1996 (Arbitration

Act), based on the UNCITRAL Model Law on International
Commercial Arbitration, 1985 (Model Law), sets out the powers
of a court and an Arbitral Tribunal to grant interim measures
under Sections 9(1) and 17, respectively. The Arbitration and
Conciliation (Amendment) Act, 20151 revised the provisions
regarding interim reliefs, specifying the types of reliefs
available and the time-frame for seeking them from courts.

The present article examines the nuances of the two legal

provisions i.e. Sections 9 and 17 of the Arbitration Act,
governing the grant of interim reliefs by the courts and the
Arbitral Tribunals, respectively.

Section 9 of the Arbitration Act

Parties typically turn to courts under Section 9 of the Arbitration

Act, praying for a variety of reliefs to safeguard the disputed
amount and prevent the alienation or dissipation of the subject-
matter property. Under Section 9(ii)(b) of the Arbitration Act, a
party may seek protection by securing the disputed amount,
often through guarantees provided by the opposing party.
Under Section 9(ii)(c) of the Arbitration Act, courts may
authorise the detention, preservation, or inspection of the
subject-matter of the dispute in arbitration. Additionally, courts
have the authority to appoint Receivers under Section 9(ii)(d) of
the Arbitration Act. Leveraging the extensive powers outlined in
Section 9(ii)(e) of the Arbitration Act, courts can also compel
parties to disclose their property holdings, issue attachment
orders against third-party respondents, and prohibit parties
from disposing of their assets.
Section 17 of the Arbitration Act

In contrast, Section 17 of the Act governs the authority of an

Arbitral Tribunal to issue interim measures. Before the 2015
Amendment Act, this section was broadly drafted, allowing the
Tribunal to grant various forms of interim protection. However,
there was a perception among courts and Arbitral Tribunals that
Section 17's scope was narrower compared to Section 9,
leading some tribunals to refrain from granting certain interim
orders, such as security grants.

The 2015 Amendment Act brought much-needed changes to

the grant of interim reliefs by Arbitral Tribunals, clarifying the
types of reliefs permissible and aligning them with those
available from courts under Section 9.

Appeals against orders under Sections 9 and 17 of the

Arbitration Act

An appeal from a court order granting or denying interim

measures under Section 9 can be filed as per Section 37(1)(b)
of the Act. Similarly, an appeal from an order of the Arbitral
Tribunal granting interim measures under Section 9 can be filed
as per Section 37(2)(b) of the Arbitration Act.

Powers of the courts and Arbitral Tribunals to grant

interim reliefs

Previously, there was debate over whether an Arbitral Tribunal's

power to grant interim reliefs under Section 17 was equivalent
to a court's power under Section 9 of the Arbitration Act.
However, the legislative amendments and judicial precedents2
over the last decade have, in effect, equated the Arbitral
Tribunal's powers with those of the Court under Section 9 of the
Arbitration Act.
Section 9(1)3 of the Arbitration Act, as amended, allows a party
to an arbitration agreement to seek interim protective
measures from a court before or during the arbitration
proceedings and even after an award has been rendered but
before the award's enforcement under Section 36 of the
Arbitration Act.4

According to sub-section (3) of Section 9 of the Arbitration Act,

once an Arbitral Tribunal has been established, the Court will
not consider a request under sub-section (1) unless
circumstances are found that could render the remedy provided
under Section 17 ineffective.5

Sub-section (3) of Section 9 comprises of two prongs. The first

prong elaborates the general rule and prohibits entertaining
applications under sub-section (1) once an Arbitral Tribunal has
been established. The second prong provides an exception to
this prohibition if the Court identifies circumstances where the
remedy offered under Section 17 may not be effective.6

In order to dissuade the submission of requests for interim

measures to courts under Section 9(1) of the Arbitration Act,
Section 17 was amended to empower the Arbitral Tribunal with
equivalent authority to grant interim measures as the Court
under Section 9(1).7 The 2015 Amendment of the Arbitration
Act8 also introduces a legal construct whereby an order issued
by the Arbitral Tribunal pursuant to Section 17 is deemed to be
a court's order for all purposes and is enforceable as such.

Under the current legal framework, the Arbitral Tribunal

possesses the same authority as the court to provide interim
relief, making the remedy under Section 17 equally effective as
that under Section 9(1).

Consequently, there is no justification for the Court to consider

applications for interim relief once the Arbitral Tribunal is
established and is handling the dispute between the parties
unless there are obstacles in approaching the Arbitral Tribunal
or the interim relief cannot be promptly obtained from the
Tribunal.9

A party invoking Section 9 of the Arbitration Act must be ready

and willing to go to arbitration.10 However, the mere delay in
invoking arbitration would not disqualify a party from seeking
relief under Section 9 of the Arbitration Act. In such cases, the
party aggrieved of the delay in the appointment of an arbitrator
always has recourse to Section 11 of the Arbitration Act.11

Even with the enactment of the 2015 Amendment12 of the

Arbitration Act, an application for interim relief can still be
brought before the Court under Section 9 of the Arbitration Act.
This can be done before arbitration proceedings begin, during
the proceedings, or after an award is issued but before it is
enforced according to Section 36 of the Arbitration Act. In such
cases, the Court must assess whether the relief provided under
Section 17 would be effective for the applicant or not.13

Section 9(3) of the Arbitration Act does not operate as an

exclusionary clause regarding the powers of the courts to grant
interim reliefs. If the legislature had intended to wholly exclude
the courts from acting under Section 9 in the existence of an
Arbitral Tribunal, it would undoubtedly have explicitly stated so.
It is a recognised principle that whenever the legislature
intends an exclusion, it articulates it explicitly.14

The Court is obligated to exercise its powers under Section 9 of

the Arbitration Act if the Arbitral Tribunal has not yet been
constituted. Whether the Court grants interim relief depends on
various factors, such as whether the applicant has presented a
strong prima facie case, whether granting relief favours the
balance of convenience, and whether the applicant would suffer
irreparable harm without interim relief, among others.
“Entertaining” an application — Key to Determine if the
Court may continue to act under Section 9 despite the
formation of an Arbitral Tribunal

The term “entertain” denotes the act of carefully considering

the issues raised. A court entertains a case when it decides to
consider a matter. This consideration/deliberation can persist
until the judgment is delivered. Once an Arbitral Tribunal is
constituted, the court cannot consider an application under
Section 9 unless the remedy under Section 17 proves to be
ineffective. However, once an application is entertained,
meaning it is considered and the court has deliberated on the
issues raised, the Court can proceed to adjudicate the
application.15

The intention behind Section 9(3) was not to rewind the process
and require a matter already earmarked for orders to be fully
considered by the Arbitral Tribunal under Section 17 of the
Arbitration Act.16

In essence, the primary inquiry revolves around whether the

process of consideration has been triggered and/or whether the
court has partially considered the matter before the Arbitral
Tribunal is constituted. If so, it can be inferred that the
application was “entertained” before the formation of the
Arbitral Tribunal.

Even after the establishment of an Arbitral Tribunal, various

factors might render the remedies under Section 17 of the
Arbitration Act ineffective as an alternative to Section 9(1). This
could occur due to temporary unavailability of any arbitrator on
account of a host of reasons such as illness and travel.

Purport and object of Section 9(3) of the Arbitration Act

In Arcelor Mittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal

Ltd.17, the Supreme Court clarified that it was never the
legislative intention that even after the conclusion of
proceedings on an application under Section 9, relief would be
denied, forcing the parties to resort to Section 17 for remedy. It
was also held that when an application has already undergone
consideration or is in the process of being considered, there is
no need to assess the effectiveness of the remedy under
Section 17. This assessment is necessary only when the
application is yet to be taken up for consideration.
As previously mentioned, there could be various reasons why
the remedy under Section 17 might prove ineffective. For
instance, if the arbitrators comprising the Arbitral Tribunal are
located far apart and unable to convene immediately, the Court
may need to entertain an urgent application for interim relief
under Section 9(1).
In the above regard, the 246th Report of the Law Commission
explains that Section 9(3) aims to diminish the role of the court
concerning the grant of interim measures once the Arbitral
Tribunal has been established. This aligns with the UNCITRAL
Model Law, which discourages court proceedings regarding
disputes arising from agreements containing arbitration
clauses.

The purpose of introducing Section 9(3) was to prevent courts

from being inundated with applications under Section 9 of the
Arbitration Act.18

The general criteria for granting interim reliefs

Applications for interim relief inherently demand swift

resolution. Interim relief is granted to support final relief,
aiming to safeguard the subject-matter of arbitration and
ensure that the arbitration process remains meaningful,
preventing the arbitral award from being merely a paper award
of no real value.19

The criteria for granting interim relief includes (i) demonstrating

a strong prima facie case; (ii) showing that the balance of
convenience favours granting interim relief; and (iii) proving
irreparable harm or loss to the applicant without interim relief.
Adequacy of stamping — A consideration for Section 9
proceedings

Following the 5-Judge Supreme Court judgment in N.N. Global

Mercantile (P) Ltd. v. Indo Unique Flame Ltd.20, an interesting
question of law arose before the High Court of Bombay in L&T
Finance Ltd. v. Diamond Projects Ltd.21 as to whether a petition
under Section 9 of the Arbitration Act could be entertained
despite noticing that the underlying agreement and/or the
arbitration agreement is not stamped or insufficiently stamped.
The High Court of Bombay held that a petition under Section 9
of the Arbitration Act, praying for interim measures, deserved a
different treatment than an application under Section 11,
seeking appointment of an arbitrator as the legislature
intended that these provisions would operate in distinct
fields.22

In contrast to the application for appointment of arbitrator

which must necessarily satisfy the test of prima facie existence
of an arbitral agreement, a petition under Section 9 of the
Arbitration Act is to be only looked at from the prism of the
three-fold test of (i) good prima facie case; (ii) balance of
convenience in favour of the petitioner; and (iii) irreparable
injury or loss to the petitioner if the relief is not granted. In this
regard, the High Court of Bombay also referred to the
observations of the majority view in the 5-Judge Bench decision
in N.N. Global23, clarifying that there was no pronouncement
on the matter with reference to Section 9 of the Arbitration Act.

To further support the conclusion, the High Court of Bombay

juxtaposed powers of an Arbitral Tribunal under Section 9 of the
Arbitration Act with the power of a civil court to grant an
interim injunction under Order 39 Rules 1 and 2 of the Civil
Procedure Code, 1908 (CPC).

As such, a civil court, when acting under Order 39 Rules 1 and 2

CPC, is not debarred from granting interim relief, even if the
agreement from which the rights are flowing or claim to be
flowing is unstamped or insufficiently stamped. Without going
into the aspect of stamping, on a prima facie case being made
out, a civil court may grant an injunction in favour of the
plaintiff. Therefore, the High Court of Bombay in L&T Finance
Ltd.24 saw no reason as to why a person opting for arbitration
may be left to suffer a setback even before invoking arbitration
when they can get the underlying agreement(s) stamped in due
course of time. For instance, if the same person had
approached a civil court in a suit, the issue of non-stamping or
insufficient stamping would only be taken up when the relevant
documents are being admitted or denied. Thus, if stamping-
related considerations were to be taken into consideration at
the stage of deciding Section 9 petitions, parties would be
discouraged from opting for arbitration, which cannot be the
aim of the Arbitration Act.

Accordingly, the High Court of Bombay concluded that an

Arbitral Tribunal acting under Section 9 of the Arbitration Act
exercises powers akin to that of a civil court and shall not
examine whether the underlying arbitration agreement is
sufficiently stamped or not. However, if at the stage when the
document is produced for being admitted in evidence and it is
found to be insufficiently stamped, then the Arbitral Tribunal
can impound the document in terms of the provisions under the
Stamp Act. The inadequacy of the underlying agreement shall
not preclude the party from seeking interim measures under
Section 9.25

Subsequent to the judgment rendered by the High Court of

Bombay in L&T Finance Ltd. case26, the issue of stamping
came to be taken up in a curative petition by a seven-Judge
Bench of the Supreme Court in Interplay between Arbitration
Agreements under the Arbitration and Conciliation Act, 1996
and the Indian Stamp Act, 1899, In re27 (Stamping judgment).
The seven-Judge Bench in the Stamping judgment28 overruled
the decision of the five-Judge Bench in N.N. Global case29. In
both the decisions rendered in N.N. Global case30 and
Stamping judgment31, it was expressed that the said
judgments did not delve into the implications of stamping in
relation to the powers of a court under Section 9 of the
Arbitration Act.

Securing the amount in dispute — Taking inspiration

from principles under the CPC

One of the interim reliefs that may be sought before the Court
under the Arbitration Act is found in Section 9(1)(ii)(b) for
securing the amount in dispute in the arbitration. The object of
Section 9(1) as a whole, and more specifically the provisions
under Section 9(1)(ii)(b), is to secure the subject-matter of the
dispute (at times the amount in dispute) from being eroded
even before the commencement of the arbitration. Thus, the
relief under Section 9(1)(ii)(b) of the Arbitration Act has to be
seen from the goal of preventing the arbitration from being
rendered nugatory.

In Indian arbitral jurisprudence, the relief of securing the

amount in dispute is comparable or analogous to the one
provided under Order 38 Rule 5(1) CPC. While the reliefs under
Section 9(1)(ii)(b) and Order 38 Rule 5(1) CPC may be
juxtaposed together to prevent arbitration from becoming too
technical and be plagued with the procedural considerations
which parties try to avoid in the first place, the Indian courts
have decided to not strictly apply the provisions of CPC to
arbitrations. What the Indian courts have, however, done is that
they have encouraged the courts acting under Section 9 of the
Arbitration Act to take inspiration from principles analogous to
those carried under Order 38 Rule 5(1) and Order 39 CPC.

Order 38 Rule 5 CPC sets forth three primary conditions that

must be met to make the defendant secure the property being
the subject-matter of the dispute. First, a prima facie case must
be established by the plaintiff/applicant, indicating the potential
for an order to be passed against the defendant. Once plaintiff
establishes a prima facie case, the burden shifts to the
defendant to counter the grounds for attachment. In this
regard, Rule 6 of Order 38 outlines the consequences when the
defendant fails to provide sufficient cause for not furnishing
security. Second, the Court examines the defendant's intention
to obstruct or delay proceedings. Ultimately, the Court's
satisfaction hinges on either the affidavit submitted by the
petitioner or other substantiating evidence. It is imperative to
present material to the Court that indicates the defendant's
intention to remove or dispose of the subject-matter property,
potentially hindering the execution of a decree. Once the Court
discerns such intention, it retains discretionary power to compel
the defendant to furnish security commensurate with the
amount in dispute temporarily. Interestingly, none of the above
principles are set out expressly or referred to under Section
9(1) of the Arbitration Act.

In Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India

Ltd.32, the moot question was whether a court was required to
satisfy itself that the requisites of Order 38 Rule 5 CPC were
met before granting the discretionary interim relief under
Section 9 of the Arbitration Act. In this regard, the Supreme
Court observed that in deciding a petition under Section 9 of
the Arbitration Act, a court could not ignore the basic principles
under Section 9 of the Arbitration Act. At the same time, the
power of court acting under Section 9 was never intended to be
curtailed by the procedural entrapment of CPC. In exercise of
the powers to grant interim relief under Section 9 of the
Arbitration Act, a court was not strictly bound by the provisions
of the CPC.33

Section 9 of the Arbitration Act offers wider powers

than CPC

The case in Essar House (P) Ltd.

In Essar House case34, the Supreme Court explained the

broader scope of the provisions under Section 9 of the
Arbitration Act. The Supreme Court held that all that a court
was required to see was whether the applicant for interim
measures had a good prima facie case, whether the balance of
convenience was in favour of the grant of the prayed interim
relief(s), and whether the applicant approached the Court with
reasonable expedition. If these conditions were met, a court
exercising power under Section 9 of the Arbitration Act ought
not to withhold the relief on mere technicalities such as
absence of averments, incorporating the grounds for
attachment before judgment under Order 38 Rule 5 CPC. In
fact, in Essar House case35, the Supreme Court went to the
extent of suggesting that an actual attempt to deal with,
remove or dispose of the property with a view to defeat or
delay the realisation of an impending arbitral award was not
imperative for grant of relief under Section 9 of the Arbitration
Act. Rather, a strong possibility of diminution of assets would
suffice.

Several decisions of the High Courts across India also seem to

emphasise that the powers of a court under Section 9 of the
Arbitration Act are broader than the powers under the
provisions of the CPC.

In Ajay Singh v. Kal Airways (P) Ltd.36, the High Court of Delhi
held as below:

27. … Section 9 grants wide powers to the courts in fashioning

an appropriate interim order, is apparent from its text.
Nevertheless, what the authorities stress is that the exercise of
such power should be principled, premised on some known
guidelines — therefore, the analogy of Orders 38 and 39.
Equally, the Court should not find itself unduly bound by the
text of those provisions rather it is to follow the underlying
principles.…

In Jagdish Ahuja v. Cupino Ltd.37, the High Court of Bombay,

placing reliance on another decision38, held as below:

6. As far as Section 9 of the Act is concerned, it cannot be said

that this Court while considering a relief thereunder, is strictly
bound by the provisions of Order 38 Rule 5. As held by our
courts, the scope of Section 9 of the Act is very broad; the
Court has a discretion to grant thereunder a wide range of
interim measures of protection “as may appear to the Court to
be just and convenient”, though such discretion has to be
exercised judiciously and not arbitrarily. The Court is, no doubt,
guided by the principles which civil courts ordinarily employ for
considering interim relief, particularly Order 39 Rules 1 and 2
and Order 38 Rule 5; the Court, however, is not unduly bound
by their texts.

A similar decision in was also subsequently rendered by the

High Court of Bombay in Valentine Maritime Ltd. v. Kreuz
Subsea Pte. Ltd.39

In Srei Infrastructure Finance Ltd. v. Ravi Udyog (P) Ltd.40, the

High Court of Calcutta held as below:

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. If the relevant facts
pleaded, read with the documents annexed to the petition,
warrant the grant of interim relief, interim relief ought not to be
refused by recourse to technicalities(…).

All of the abovequoted High Court decisions came to be

approved in Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel
(India) Ltd.41

The case in Sanghi Industries

In a subsequent decision in Sanghi Industries Ltd. v. Ravin

Cables Ltd.42, the Supreme Court, while speaking of the extent
and degree of evidence which must be shown to exist before an
order akin to an attachment before judgment could be made,
observed as below:

4. … it appears that the commercial court had passed the order

under Section 9(ii)(e) of the Arbitration Act, 1996 to secure the
amount in dispute, we are of the opinion that unless and until
the preconditions under Order 38 Rule 5 CPC are satisfied and
unless there are specific allegations with cogent material and
unless prima facie the Court is satisfied that the appellant is
likely to defeat the decree/award that may be passed by the
arbitrator by disposing of the properties and/or in any other
manner, the commercial court could not have passed such an
order in exercise of powers under Section 9 of the Arbitration
Act, 1996.

5. … However, unless and until the conditions mentioned in

Order 38 Rule 5 CPC are satisfied such an order could not have
been passed by the commercial court which has been passed
by the commercial court in the present case, which has been
affirmed by the High Court.

While it is an undisputed position that the power of a court

under Section 9 of the Arbitration Act to frame orders for
attachment or require the making of a deposit draws
sustenance from the principles which are attracted onto Order
38 Rule 5 CPC. The said position is made clear in the decision of
the Supreme Court in Essar House case43, which holds that a
court under Section 9 would not withhold relief on mere
technicality and that the applicant is not required to prove
actual attempts to deal with, remove, or dispose of the
property. As per Essar House case44, even a strong possibility
of diminution would suffice for granting relief under Section 9.

However, in the subsequent decision in Sanghi Industries

case45, the Supreme Court appears to have taken a contrary
and stricter view by holding that unless and until the conditions
which guide the exercise of power under Order 38 Rule 5 CPC
are found to be satisfied, no interim measure should be
formulated.

Interestingly, the decisions in both Essar House case46 and

Sanghi Industries case47 are judgments that came to be
rendered by Benches comprising an equal coram. In such
cases, the courts would be obligated to follow the latter view as
enunciated in Sanghi Industries case48.
Interestingly, the issue of diverging views in the Supreme Court
decisions in Essar House case49 and Sanghi Industries case50
has already been presented before at least one Bench of the
High Court of Delhi in Vivek Jain v. Prepladder (P) Ltd.51 Upon
an extensive review of the decisions cited, the High Court of
Delhi in Vivek Jain case52 held as below:

42. … While Section 9 Court may not be strictly bound by the

requirements of Order 38 Rule 5 of the Code, the same would in
itself not justify the framing of such a direction even if the case
were tested on principles analogous to those which guide the
power conferred by Order 38 Rule 5 of the Code and those are
found to be totally absent.

43. This Court additionally finds that the power to frame an

interim measure in terms of Section 9 of the Act is principally
concerned with securing the subject-matter of arbitration. As
would be manifest from a reading of that provision, an interim
measure would be justifiably granted where the Court is called
upon to preserve goods or take possession of goods which form
subject-matter of arbitration. The provisions of Section 9(1)(ii)
(b) of the Act and which speak of an interim order securing the
amount in dispute would necessarily haveto be considered on
principles similar to those which guide the exercise of power
under Order 38 of the Code. Notwithstanding, Section 9 court
not being confined by the technicalities which imbue the
provisions of the Code, it would not lead to the Court jettisoning
or ignoring the fundamental principles which must guide and
inform an order for attachment before judgment. Even the
residual clause of Section 9 of the Act and which empowers a
court to frame such interim measure of protection as may be
considered just and convenient cannot be read as justifying the
framing of an order for attachment before judgment even
though the foundational grounds for the issuance of such
directions be found to be totally absent. The Court thus finds no
justification to require the respondent to deposit or secure the
amount which is claimed by the petitioner.
As would be evident from the above, the High Court of Delhi
taking precedence from Sanghi Industries case53 has reiterated
a more stringent standard for exercise of discretion under
Section 9 as compared to Essar Industries case54.
Conclusion
In conclusion, the examination of Sections 9 and 17 of the
Arbitration Act sheds light on the nuanced legal provisions
governing the grant of interim reliefs by courts and Arbitral
Tribunals in India. Over the years, legislative amendments and
judicial interpretations have played a crucial role in clarifying
and aligning the powers of courts and Arbitral Tribunals in this
regard. The Arbitration and Conciliation (Amendment) Act,
2015, brought significant changes to the grant of interim
reliefs, particularly by Arbitral Tribunals, thereby bridging the
gap between the powers available under Sections 9 and 17.

While Section 9(3) of the Arbitration Act aims to limit court

intervention once an Arbitral Tribunal is established, it does not
entirely exclude court jurisdiction. Instead, it provides
exceptions where the remedy under Section 17 may prove
ineffective. The jurisprudence surrounding the grant of interim
reliefs under Section 9 reflects a balance between the need for
swift resolution and procedural propriety. Courts are guided by
principles analogous to those under the CPC but are not strictly
bound by its technicalities. The overarching objective remains
the preservation of the subject-matter of arbitration and
ensuring that the arbitration process remains meaningful.

In essence, the evolution of legal provisions and judicial

interpretations underscores the importance of a flexible yet
principled approach towards granting interim reliefs in
arbitration proceedings. As India continues to strengthen its
arbitration framework, ensuring consistency and clarity in the
application of these provisions will be crucial for promoting
arbitration as an efficient and effective dispute resolution
mechanism.
* Head and Founder of Trinity Chambers, Delhi.

** Counsel at Trinity Chambers, Delhi.

1 Arbitration and Conciliation (Amendment) Act, 2015 (with

retrospective effect from 23-10-2015).

2 One such decision is ArcelorMittal Nippon Steel (India) Ltd. v.

Essar Bulk Terminal Ltd., (2022) 1 SCC 712.

3 S. 9 was renumbered as sub-s. (1) by Arbitration and

Conciliation (Amendment) Act, 2015 (with retrospective effect
from 23-10-2015).

4 Arbitration and Conciliation Act, 1996, S. 9(1).

5 Arbitration and Conciliation Act, 1996, S. 9(3).

6 Arbitration and Conciliation Act, 1996, S. 9(3).

7 ArcelorMittal Nippon Steel (India) Ltd. case, (2022) 1 SCC 712.

8 Arbitration and Conciliation (Amendment) Act, 2015 (with

retrospective effect from 23-10-2015).

9 ArcelorMittal Nippon Steel (India) Ltd. case, (2022) 1 SCC 712.

10 Ashok Traders (Firm) v. Gurumukh Das Saluja, (2004) 3 SCC

155.

11 ArcelorMittal Nippon Steel (India) Ltd. case, (2022) 1 SCC

712.

12 Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of

2016) (with retrospective effect from 23-10-2015).

13 Energo Engg. Projects Ltd. v. TRF Ltd., 2016 SCC OnLine Del
6560.
14 Benara Bearings & Pistons Ltd. v. Mahle Engine Components
(India) (P) Ltd., 2017 SCC OnLine Del 7226; M. Ashraf v. Kasim
V.K., 2018 SCC OnLine Ker 4913; Srei Equipment Finance Ltd. v.
Ray Infra Services (P) Ltd., 2016 SCC OnLine Cal 6765; Avantha
Holdings Ltd. v. Vistra ITCL (India) Ltd., 2020 SCC OnLine Del
1717.

15 Lakshmi Rattan Engg. Works Ltd. v. CST, AIR 1968 SC 488;

Hindusthan Commercial Bank Ltd. v. Punnu Sahu, (1971) 3 SCC
124; Martin & Harris Ltd. v. VIth ADJ, (1998) 1 SCC 732, Kundan
Lal v. Jagan Nath Sharma, 1962 SCC OnLine All 38, Dhoom
Chand Jain v. Chaman Lal Gupta, 1962 SCC OnLine All 29;
Bawan Ram v. Kunj Behari Lal, 1960 SCC OnLine All 87; Haji
Rahim Bux v. Haji Sanaullah & Sons, 1962 SCC OnLine All 156.

16 ArcelorMittal Nippon Steel (India) Ltd. case, (2022) 1 SCC

712.

17 (2022) 1 SCC 712.

18 Amazon.com NV Investment Holdings LLC v. Future Retail

Ltd., (2022) 1 SCC 209; ArcelorMittal Nippon Steel (India) Ltd.
case, (2022) 1 SCC 712.

19 ArcelorMittal Nippon Steel (India) Ltd. Case, (2022) 1 SCC

712.

20 (2023) 7 SCC 1.

21 2019 SCC OnLine Bom 12536

22 L&T Finance Ltd. case, 2019 SCC OnLine Bom 12536

23 (2023) 7 SCC 1.

24 2019 SCC OnLine Bom 12536.

25 L&T Finance Ltd. case, 2019 SCC OnLine Bom 12536.

26 2019 SCC OnLine Bom 12536.

27 2023 SCC OnLine SC 1666.

28 Interplay between Arbitration Agreements under the

Arbitration and Conciliation Act, 1996 and the Indian Stamp Act,
1899, In re, 2023 SCC OnLine SC 1666.

29 (2023) 7 SCC 1.

30 (2023) 7 SCC 1.

31 Interplay between Arbitration Agreements under the

Arbitration and Conciliation Act, 1996 and the Indian Stamp Act,
1899, In re, 2023 SCC OnLine SC 1666.

32 2022 SCC OnLine SC 1219.

33 Essar House case, 2022 SCC OnLine SC 1219, the Supreme

Court observed:

40. While it is true that the power under S. 9 of the Arbitration

Act should not ordinarily be exercised ignoring the basic
principles of procedural law as laid down in the CPC, the
technicalities of CPC cannot prevent the Court from securing
the ends of justice. It is well settled that procedural safeguards,
meant to advance the cause of justice cannot be interpreted in
such manner, as would defeat justice.”

34 2022 SCC OnLine SC 1219.

35 2022 SCC OnLine SC 1219.

36 2017 SCC OnLine Del 8934.

37 2020 SCC OnLine Bom 849.

38 Nimbus Communications Ltd. v. BCCI, 2012 SCC OnLine Bom

287.
39 2021 SCC OnLine Bom 75.

40 2008 SCC OnLine Cal 974

41 2022 SCC OnLine SC 1219.

42 2022 SCC OnLine SC 1329.

43 2022 SCC OnLine SC 1219.

44 2022 SCC OnLine SC 1219.

45 2022 SCC OnLine SC 1329.

46 2022 SCC OnLine SC 1219.

47 2022 SCC OnLine SC 1329.

48 2022 SCC OnLine SC 1329.

49 2022 SCC OnLine SC 1219.

50 2022 SCC OnLine SC 1329.

51 2023 SCC OnLine Del 6370.

52 2023 SCC OnLine Del 6370.

53 2022 SCC OnLine SC 1329.

54 2022 SCC OnLine SC 1219.