Section 9(1) of the Arbitration and Conciliation Act, 1996 provides for the Interim measures that can be sought from the Court during the pendency of an arbitral proceeding or even after the making of the award but before the enforcement of the award under Section 36 of the Act. Section 9(3) stipulates that the application under Section 9(10 will not be entertained by the Court unless there exists circumstances which are not yet resolved by way of the remedy under Section 17 of the Act.
In the matter of M. Ashraf v. Kasim VK, the appellant had sought the appeal against the order of the District Court rejecting the application under Section 9(1)(ii) on the ground that remedy had already been granted under Section 17 of the Act. The Appellant contended that the Arbitrator had become functus officio after signing and communication of the Award, as stated in the judgment of Satwant Singh Sodhi vs. State of Punjab AIR 1999 SC 2040. Further relying on the facts of the appeal and on the judgments in Sundaram Finance Ltd. v. NEPC India Ltd AIR 1999 SC 565, Firm Ashok Traders v. Gurumukh Das Saluja AIR 2004 SC 1433 and Board of Trustees of Port of Cochin v. Jaisu Shipping Company 2012 (1) KLT 217 in relation to the exercise of power by the Court under Section 9(1) of the Act, the Bench of Justice V. Chitambaresh and Justice R Narayana Pishardi affirmed to the contentions of the appellant on the following reasoning:
“12. ………When interim relief is sought after an arbitral award is made but before it is enforced, the measure of protection is intended to safeguard the subject matter of dispute or the fruits of the proceedings till the enforcement of the award. Interim measure of protection, then sought, is a step in aid of enforcement of the award. It is intended to ensure that the award is not rendered illusory by the opposite party. In such circumstances, when urgent relief is required, especially by a party who is successful in the arbitral proceedings, remedy under Section 17 of the Act may not be efficacious because the Arbitral Tribunal may not be then actually functioning. It may also be possible that the Arbitrator is not readily available. When an application under Section 9(1) of the Act is made by a party after the passing of the award but before it is enforced, the Court has to consider all these circumstances. Of course, the party who approaches the Court has to enlighten the Court with regard to such or similar circumstances.”
The High Court observed that a mere statement by the District Court to the effect that the remedy provided under Section 17 of the Act is efficacious, without reference to the circumstances which make it so, is not a sufficient ground to reject the appellant’s application under Section 9(1) of the Act. The order of the District Court was set aside and the appellant’s application under Section 9(1) was remanded for fresh hearing on merits.
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Judgment: M Ashraf Versus Kasim VK
