ADRs Part -4
Dr. D.T. Mohan Krishna
S.9- Interim measures, etc., by Court
• (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;
Interim Measures by Court
• (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.
Conditions for the Interim Remedy
• (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.]
Velugubanti Hari Babu vs Parvathini
Narasimha Rao 2018(3)ALT 480
• The language of Section 9(2) of the Act does not limit the
operation of interim measure till appointment of arbitrator
only. On the contrary, a party can seek interim measure at
three stages, viz., before, during the pendency of arbitral
proceedings and after passing of the award, but before it is
enforced under Section 36 of the Act.
• The fact that a party can approach the Court even during
the pendency of the arbitral proceedings and seek interim
measure, clearly shows that the legislature clearly intended
to empower the court to grant interim measure to last till
the arbitral proceedings conclude and an award is passed.
S.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;
Interim Measures by Arbitrator
• (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;
Powers of Arbitrator in granting Interim
Measures
• (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.
Avon Healthcare Private Limted vs Trade
International & Ors, 2021 SCC OnLine Del 2568
• it will have to be determined by the Court in the facts of
each case whether for the purpose of interim measure
of protection, preservation, sale of any goods, securing
the amount in dispute, an order affecting a third party
can be made or not.
• It was further held that whenever attachment qua
properties/monies in hands of third parties is sought, if
such third party denies liability and sets up title in itself
and such denial raises disputed questions of fact which
cannot be adjudicated without trial, Section 9 against
such third parties may not be invoked
Cref Finance Ltd. vs Puri Construction Ltd. &
Ors, 2000 (3) ARBLR 331 Delhi
• No provision has been shown to me in support of the
contention of the Respondents that once disputes have
been referred to Arbitration, the Court have no further
role to play in the consensual process of resolution of
disputes.
• No doubt the Act's intendment is that the Court's
interference in the arbitral process is to be eschewed, in
this case, if orders are passed as prayed for it would
complement and assist the proceedings. The Court is
not impeding, interfering with or obstructing the
functioning of the Arbitral Tribunal.
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M.D., Army Welfare Housing ... vs Sumangal Services
Pvt. Ltd on 8 October, 200
• A bare perusal of the aforementioned provisions would clearly show
that even under Section 17 of the 1996 Act the power of the
arbitrator is a limited one. It cannot issue any direction which would
go beyond the reference or the arbitration agreement. Furthermore,
an award of the arbitrator under the 1996 Act is not required to be
made a rule of court; the same is enforceable on its own force. Even
under Section 17 of 1996 Act, an interim order must relate to the
protection of subject matter of dispute and the order may be
addressed only to a party to the arbitration. It cannot be addressed to
other parties. Even under Section 17 of the 1996 Act, no power is
conferred upon the Arbitral Tribunal to enforce its order nor does it
provide for judicial enforcement thereof. The said interim order of the
learned Arbitrator, therefore, being coram non judice was wholly
without jurisdiction and, thus, a nullity.
Ashwani Minda and Ors. v. U-shin Limited
and Ors.-
• Even when an application for interim relief before
Indian courts under Section 9 of the Act in a
foreign-seated arbitration is maintainable, such
application would not lie after the constitution of
the arbitral tribunal, unless it can be proven that
there is no efficacious remedy before the
tribunal. On the facts of the case before it, the
Division Bench held that there is nothing to show
that remedy before the arbitral tribunal is
inefficacious