Procedure for Interim Relief under the Arbitration and Conciliation Act
The Arbitration and Conciliation (Amendment) Act 2015, revised the provisions regarding
interim reliefs, specifying the types of reliefs available and the timeframe for seeking them
from courts. The present research note 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.
Following are the relevant sections of the Arbitration and Conciliation Act, 1996 w.r.t filing
an interim application seeking an order for the deposit of the awarded money in arbitration:
1. Section 9 - Interim Measures
(1) A party may, before or during arbitral proceedings or at any time after the making of the
arbitral award but before it is enforced in accordance with section 36, apply to a court—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes
of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely: —
(a) the preservation, interim custody or sale of any goods which are the subject-
matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the
subject-matter of the dispute in arbitration, or as to which any question may arise
therein and authorising for any of the aforesaid purposes any person to enter upon
any land or building in the possession of any party, or authorising any samples to be
taken or any observation to be made, or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just
and convenient, and the Court shall have the same power for making orders as it has
for the purpose of, and in relation to, any proceedings before it.
(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.
(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an
application under sub-section (1), unless the Court finds that circumstances exist which
may not render the remedy provided under section 17 efficacious.]
3. Order 38 Rule 5 CPC
It 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.
4. Section 17 - Interim measures ordered by arbitral tribunal:
(1) A party may, during the arbitral proceedings, apply to the arbitral tribunal--
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes
of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:
(a) the preservation, interim custody or sale of any goods which are the subject-
matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the
subject-matter of the dispute in arbitration, or as to which any question may arise
therein and authorising for any of the aforesaid purposes any person to enter upon
any land or building in the possession of any party, or authorising any samples to be
taken, or any observation to be made, or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the arbitral tribunal to
be just and convenient, and the arbitral tribunal shall have the same power for
making orders, as the court has for the purpose of, and in relation to, any proceedings
before it.
(2) Subject to any orders passed in an appeal under section 37, any order issued by the
arbitral tribunal under this section shall be deemed to be an order of the Court for all
purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in
the same manner as if it were an order of the Court.]
Difference between Section 9 and 17
Sections 9 and 17 of the Arbitration and Conciliation Act, 1996, both deal with interim
measures of protection in arbitration, but they differ significantly in terms of the authority
granting the interim relief, the timing of the relief, and the nature of the orders they can issue.
1. Authority Granting Interim Relief
Section 9:
Court: Interim measures under Section 9 can be sought from a court (either before, during, or
after the arbitration process), and it applies both when the arbitration has already started or is
about to start. The court, having supervisory powers, can grant wide-ranging interim reliefs.
The court’s power is invoked when the arbitral tribunal has not been constituted yet, or when
interim relief is needed outside the tribunal's jurisdiction, or after the award is passed but
before it is enforced.
Section 17:
Arbitral Tribunal: Interim relief under Section 17 is granted by the arbitral tribunal itself (the
panel of arbitrators conducting the arbitration). It is available once the tribunal is constituted
and during the arbitral proceedings.
The tribunal is empowered to grant interim measures relating to the preservation of evidence,
protection of assets, and maintenance of the status quo while the arbitration is ongoing.
2. Scope of Interim Relief
Section 9:
Broad powers, including orders for the preservation of property, securing the amount in
dispute, ordering interim payments, or directing a party to deposit the award amount.
Reliefs under Section 9 are not limited to the preservation of evidence or assets. The court
can make any order for the protection of a party’s interests in the dispute, including granting
injunctions or appointing receivers.
Section 17:
Interim reliefs granted by the arbitral tribunal are generally more focused on preserving the
subject-matter of the dispute and securing the tribunal’s jurisdiction. These may include:
Order for the preservation, interim custody, or sale of goods.
Securing evidence.
Interim injunctions or other orders to protect the parties' rights during arbitration.
However, Section 17 reliefs are often seen as less comprehensive compared to those under
Section 9, as tribunals are limited in their powers in comparison to the courts.
3. Timing of Application
Section 9:
The application for interim relief under Section 9 can be filed before the commencement of
arbitration, during the arbitration process, or even after the award is made (but before it is
enforced). This means Section 9 can be invoked at any point, including after the arbitral
award, for securing its enforcement.
Section 17:
Only during the arbitration proceedings: Section 17 can only be invoked after the arbitral
tribunal is constituted. Once the tribunal has been set up and the proceedings have started, the
tribunal may grant interim relief to preserve the status quo while the matter is being
adjudicated.
Case Laws:
In Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India Ltd (2022), 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.
In a subsequent decision in Sanghi Industries Ltd. v. Ravin Cables Ltd (2022), 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.”