Arbitration and Conciliation Act (Section 9 & 17)

Section 9: Section 9 of the Arbitration and Conciliation Act, 1996, allows parties involved in
arbitration proceedings to seek interim measures from the court. These interim measures can
be requested before or during the arbitration proceedings or after the arbitral award is made
but before it is enforced.

The section provides for the following types of interim measures:

1. Appointment of a guardian: A party can request the court to appoint a guardian for a minor
or a person of unsound mind who is involved in the arbitration proceedings.

2. Interim measures of protection: A party can seek interim measures to protect their rights or
preserve the subject matter of the arbitration. These measures may include preserving,
custody, or sale of goods related to the arbitration, securing the disputed amount, detaining or
preserving property, obtaining interim injunctions, or appointing a receiver.

3. Other interim measures: The court has the power to grant any other interim measure that it
deems just and convenient in the circumstances of the case.

Once the court issues an order for interim measures, it is considered an order of the court and
can be enforced using the provisions of the Code of Civil Procedure, 1908, as if it were an order
in a regular civil suit.

The court is required to handle applications for interim measures expeditiously, and efforts
should be made to dispose of the application within 60 days from the date of service of notice
to the opposite party. However, the court may entertain an application even after this period if
sufficient cause is shown.

Importantly, the court dealing with an application under Section 9 has jurisdiction not only over
the application for interim measures but also over any related claims arising from the
arbitration agreement, as if they were a regular suit. This allows the court to address any
disputes or issues arising from the arbitration agreement itself.

Thus, Section 9 provides parties in arbitration proceedings with the option to seek interim
measures from the court to safeguard their rights or preserve the subject matter of the
arbitration until a final award is issued.
Important Case Laws

1. Sundaram Finance Ltd. v. NEPC India Ltd. (1999) 1: The question of the jurisdiction of the
‘court’ to pass interim orders prior to the commencement of arbitral proceedings and before
the appointment of an arbitrator under Section 9 of the Act was considered by a Supreme Court
Division Bench. This Court, after due consideration of the scope of the said provision, decided
the court had no jurisdiction to entertain an application under Section 9 before the initiation of
arbitration proceedings.

2. Firm Ashok Traders v. Gurumukh Das Saluja (2004) 2: The Supreme Court held that the
commencement of arbitral proceedings is independent of the interim relief under Section 9
being allowed or denied.

3. S.B.P. and Co. v. Patel Engineering (2005) 3: The Supreme Court held that if a dispute involved
was not covered by the arbitration clause or the Court which was approached had no
jurisdiction to pass any order under Section 9 of the Arbitration Act, that Court should decide
whether it has jurisdiction and whether there has been a valid arbitration agreement and the
dispute raised has been covered by it. Further, it was held that if it is found that the Arbitral
Tribunal has jurisdiction, it should continue with the arbitral proceedings and make an arbitral
award.

4. Welspun Infratech Limited v. Mr. Ashok Khurana (2014) 4: The Bombay High Court held that
the parties who are not parties to an arbitration agreement can still file an application under
Section 9 if they are likely to be affected by the reliefs claimed therein.

5. Ashwani Minda and M/s Jay Ushin Limited v. M/s U-Shin Limited and M/s Minebea Mitsumi
Incorporated (2020)5: While deciding upon the scope of applicability of Section 9 in connection
with the foreign seated arbitrations, the court held that an application under Section 9 would
not be maintainable after the constitution of an arbitral tribunal in a foreign seated arbitration
if an efficacious remedy is available before the arbitral tribunal.

6. New Morning Star Travels v. Volkswagen Finance (2020): The Delhi High Court held that
orders relating to an application under Section 9 cannot be passed ex-parte.

7. M/S. Satyen Construction v. the State of West Bengal & Others (2022) 6: A single bench judge
of Calcutta High Court dismissed and rejected a prayer for withdrawal on the ground that the

1
Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479
2
Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 SCC 155
3
S.B.P. & Co. v. Patel Engg. Ltd., (2005) 6 SCC 288
4
Welspun Infratech Ltd. v. Ashok Khurana, 2014 SCC OnLine Bom 39
5
Ashwani Minda v. U-Shin Ltd., 2020 SCC OnLine SC 1123
6
Satyen Construction v. State of W.B., 2022 SCC OnLine Cal 708
scope of Section 9 of the Arbitration and Conciliation Act, 1996 cannot be extended to the
enforcement of an arbitral award.

Section 17: Section 17 of the Arbitration and Conciliation Act, 1996 is a crucial provision that
empowers the arbitral tribunal to grant interim measures during the course of arbitration
proceedings. These interim measures serve to protect or preserve the subject matter of the
dispute and ensure the effectiveness and fairness of the arbitration process.

Under Section 17(1), the arbitral tribunal has the authority to grant interim measures upon the
request of a party. These measures are aimed at safeguarding the rights and interests of the
parties involved in the arbitration. They can be granted at any time before the final award is
rendered.

The range of interim measures that can be granted by the arbitral tribunal is outlined in Section
17(2). These measures include ordering a party to maintain or restore the status quo,
preventing any harm to the parties or the dispute, preserving assets or evidence, or issuing an
injunction. The tribunal has discretion in determining which measures are appropriate based on
the circumstances of the case.

In deciding whether to grant interim measures, the arbitral tribunal considers various factors as
per Section 17(3). These factors include the urgency of the situation, the potential harm that
may be caused, the likelihood of success on the merits of the claim, and the balance of
convenience between the parties. This ensures that the tribunal makes a well-informed
decision in granting or denying the requested interim measures.

Section 17(4) allows the arbitral tribunal to require the party seeking interim measures to
provide suitable security, such as a deposit or bank guarantee, to ensure compliance with the
measures ordered. This provision serves as a safeguard against potential abuse of the interim
measures and helps protect the rights of both parties.

Furthermore, Section 17(5) grants the arbitral tribunal the power to modify, suspend, or
terminate the interim measures it has granted. This ensures flexibility in adapting to changing
circumstances or if it is determined that the measures are no longer necessary.

Lastly, Section 17(6) provides recourse if a party fails to comply with the interim measures
ordered by the arbitral tribunal. In such cases, the other party may seek assistance from a court
to enforce those measures, thereby ensuring compliance and effectiveness of the arbitral
process.

Thus Section 17 of the Arbitration and Conciliation Act, 1996 empowers the arbitral tribunal to
grant interim measures to protect and preserve the subject matter of the dispute. These
measures play a crucial role in maintaining fairness, preventing harm, and ensuring the efficacy
of the arbitration proceedings.

Important Case Laws

1. Evergreen Land Mark (P) Ltd. v. John Tinson & Co. (P) Ltd., (2022) 7: The issue was whether
the Tribunal can pass an interim order under Section 17 regarding the deposit of security before
adjudicating the applicability of a force majeure clause in the contract, which would absolve the
depositor of such an order completely from his liability. The Supreme Court in the following
case held that such an order cannot be passed by the Tribunal as it is one of the major issues in
the case and it would be erroneous to pass such an order before adjudication of the issue on its
merits.

2. SBI v. Ericsson (India) (P) Ltd. (2018) 8: The Hon’ble Supreme Court held that in a case where
an arbitration dispute is between the unsecured creditors and debtors, no interim orders can
be passed in order to effect the rights of the secured creditors.

3. Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 9: The apex court held that the main
objective behind granting interim relief is to restore the status quo, whereby if there has been
an act done by a party that could not have been done legally, the court can remedy the
situation by passing interim orders, wherein the court has to make sure that the party who has
suffered any loss is restored to his original position.

Difference between section 9 and section 17

Section 9 of the Arbitration and Conciliation Act pertains to the power of courts to grant interim
measures before or during the arbitration proceedings. This section allows a party to approach
a court for urgent relief when circumstances require immediate action to protect their rights or
the subject matter of the dispute. Here are some key points about Section 9:

a. Scope: Section 9 applies when there is an arbitration agreement in place, unless the
agreement specifically restricts a party's right to seek interim measures from a court.

b. Application to Court: A party seeking interim measures files an application before a court,
typically the court specified in the arbitration agreement or the relevant jurisdiction where the
dispute arises.
7
Evergreen Land Mark (P) Ltd. v. John Tinson & Co. (P) Ltd., (2022) 7 SCC 757
8
SBI v. Ericsson (India) (P) Ltd., (2018) 16 SCC 617
9
Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117
c. Types of Interim Measures: The court has the power to grant a wide range of interim
measures, such as issuing injunctions, appointing receivers, preserving evidence, restraining a
party from disposing of assets, or taking any other appropriate action to protect the rights of
the parties.

d. Court's Decision: When deciding on the application for interim measures, the court will
consider the urgency of the situation, the merits of the case, and any potential prejudice that
may result if the relief is not granted. The court's decision on interim measures is enforceable
as a court order.

e. Modification and Revocation: After granting interim measures, the court retains the power to
modify or revoke them if circumstances change or if a party requests such modifications.

2. Section 17: Interim Measures by Arbitral Tribunals

Section 17 of the Arbitration and Conciliation Act, 1996 deals with the authority of the arbitral
tribunal to grant interim measures during the course of arbitration proceedings. This section
recognizes the autonomy and powers of the arbitral tribunal to provide interim relief. Here are
some key points about Section 17:

a. Scope: Section 17 applies to arbitral tribunals constituted under the arbitration agreement or
appointed by the parties.

b. Request for Interim Measures: A party may submit a request for interim measures directly to
the arbitral tribunal. This allows the parties to seek urgent relief without having to go to court.

c. Types of Interim Measures: Similar to Section 9, Section 17 empowers the arbitral tribunal to
grant various interim measures, including injunctions, protection of assets, preservation of
evidence, and any other appropriate measures necessary to safeguard the parties' rights.

d. Tribunal's Decision: The arbitral tribunal considers the party's request for interim measures
and assesses the urgency, necessity, and appropriateness of the relief sought. The tribunal's
decision on interim measures is binding on the parties and enforceable in the same manner as a
court order.

e. Judicial Intervention: If a party is dissatisfied with the arbitral tribunal's decision on interim
measures, they may seek judicial intervention by approaching the court with appropriate
jurisdiction. The court may then decide whether to confirm, modify, or set aside the arbitral
tribunal's decision.

Thus the main distinction between Section 9 and Section 17 lies in the forum where parties can
seek interim measures. Section 9 allows parties to approach a court for such relief, while
Section 17 recognizes the authority of the arbitral tribunal to grant interim measures during the
arbitration proceedings. The choice between the two sections depends on factors such as
urgency, preference, and the specific provisions of the applicable arbitration law in a given
jurisdiction.