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Interim Protection by Courts in Arbitration

Grant of Interim Measures of Protection by Courts

Section 9 of the Arbitration and Conciliation Act, 1996 provides courts the power to grant interim measures in aid of arbitration for securing the subject matter of the arbitration. An application under Section 9 of the Act may be filed before the commencement of arbitral proceedings, during such proceedings and post-grant of the arbitral award[1].

The provision reads as under :

Section 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;

(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.

Courts across India routinely exercise powers under this section to grant relief(s), which are just and convenient. The orders granted in exercise of such power range from orders for maintaining status quo, orders for / against invocation of guarantees, orders securing the amount in dispute by way of guarantees[2] and even orders securing properties which are not the subject matter of dispute by appointing a receiver.[3] Courts have the discretion to give reliefs in accordance with the specific facts and circumstances to preserve sanctity of the arbitral process.

Applicability of CPC Principles to Section 9

While Section 9 of the Act does not lay down any special procedure for the grant of interim measures, the general rules governing the grant of interim injunctions under the Code of Civil Procedure, 1908 (CPC) are also applicable to applications under Section 9. The Supreme Court, in Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corporation & Ors.[4], held that the principles governing the grant of interim injunctions generally followed by the courts should also be considered while exercising the power under Section 9.

The courts, before granting relief under Section 9, must consider the well-known principles governing the grant of an interim injunction, such as the requirement of a prima facie case, balance of convenience, and irreparable injury. These principles ensure that the courts maintain a fair and equitable approach while granting interim measures of protection.

“The power under Section 9 of the Act cannot be exercised without considering the well-known principles governing the grant of an interim injunction that generally govern the courts.” – Adhunik Steels Ltd. v. Orissa Manganese and Minerals Pvt. Ltd.[5]

The Supreme Court in Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited[6], emphasised that courts exercising powers under Section 9 of the Act cannot ignore the basic principles of the CPC, but they are not strictly bound by the rigours of the CPC. Demonstrating proof of actual attempt to remove/ dispose of property so as to frustrate the arbitration proceedings is not necessary for the grant of relief under Section 9.

Is Notice of Arbitration Required before Filing an Application under Section 9?

There has been a debate regarding the necessity of issuing a notice invoking arbitration before filing an application under Section 9. In Sundaram Finance Ltd. v. NEPC India Ltd.[7], the Supreme Court answered this question in the negative. The court held that while a notice of arbitration is not required, there must be a manifest intention by the party seeking interim relief to commence arbitral proceedings. The court must also be satisfied that a valid arbitration agreement exists, and the applicant intends to take the dispute to arbitration.

It is worth noting that the 2015 Amendment Act introduced a provision in Section 9, stating that arbitral proceedings must be commenced within 90 days from the date of the interim order if an application under Section 9 is made before issuing a notice of arbitration. This provision emphasizes the importance of promptly initiating arbitral proceedings after seeking interim relief.

Third Parties and Section 9 Proceedings

The involvement of third parties in Section 9 proceedings raises two important questions: whether a third party can file an application under Section 9 and whether interim orders can be sought against third parties.

An application under Section 9 can only be made by a party to the arbitration agreement or a person claiming through or under such a party. In Firm Ashok Traders and Anr. v. Gurumukh Das Saluja & Ors[8]., the Supreme Court held that a person who is not a party to the arbitration agreement does not have the locus standi to approach the court for relief under Section 9.

Regarding interim orders against third parties, the Delhi High Court has expressed the view that the court’s power under Section 9 is analogous to that of a civil court to pass orders concerning third parties. However, the issuance of interim orders against third parties depends on the specific facts of each case, and no hard and fast rule can be laid down.

Maintainability of Section 9 Applications after Constitution of the Arbitral Tribunal

Section 9(3) of the Act, inserted by the 2015 Amendment Act, restricts the entertainability of applications under Section 9 after the constitution of the arbitral tribunal. The court shall not entertain an application under Section 9 unless it finds that, in the circumstances of the case, the remedy under Section 17 would not be efficacious.

The Supreme Court, in Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd.[9], clarified that the power of the arbitral tribunal to grant interim relief under Section 17 is the same as that of the court. The remedy provided under Section 17 is considered as efficacious as the remedy under Section 9(1). Therefore, courts should generally refrain from taking up applications for interim relief after the constitution of the arbitral tribunal, unless there are specific impediments preventing the party from approaching the tribunal or the interim relief cannot be expeditiously obtained from the tribunal.

However, if the court has already taken up the application before the constitution of the arbitral tribunal and has applied its mind to the matter, it can proceed to adjudicate the application even after the tribunal’s constitution. In such cases, the court need not consider the efficacy of the remedy under Section 17.

Determining the Efficacy of the Remedy under Section 17

Indian courts have provided limited guidance on determining the efficacy of the remedy under Section 17. In Energo Engineering Projects Ltd. v. TRF Ltd.[10], the Delhi High Court entertained an application under Section 9 when the arbitral tribunal was not functional due to a special leave petition challenging its constitution. The court considered this circumstance as rendering the remedy under Section 17 uncertain and not efficacious.

Determining the efficacy of the remedy under Section 17 requires a case-by-case analysis, taking into account the specific circumstances and the impact on the arbitral process.

Section 9 and Stamping of Arbitration Agreements

The existence of a valid arbitration agreement is a prerequisite for granting relief under Section 9. One aspect considered in determining the validity of an arbitration agreement is the payment of adequate stamp duty. In NN Global Mercantile Private Limited v. Indo-Unique Flame Limited and Ors.,[11] the Supreme Court addressed this issue.

The Supreme Court held that the arbitration agreement, being an independent contract separable from the main contract, does not require stamp duty payment. Non-payment of stamp duty on the main contract does not invalidate the arbitration clause or render it unenforceable. This ruling overturned the earlier decisions in SMS Tea Estates (P) Limited v. Chandmari Tea Co. (P) Limited[12] and Garware Wall Ropes v. Coastal Marine Constructions and Engineering Ltd[13]. However, the issue of stamp duty payment on arbitration agreements has been referred to a larger bench for further deliberation.

Nonetheless, non-payment of stamp duty on the main contract is considered a curable deficiency that does not invalidate the contract. When hearing an application under Section 11, the court may impound the contract and direct the parties to cure the stamp duty deficiency before the arbitral tribunal adjudicates the dispute. Similarly, in a reference under Section 8, the judicial authority can refer the parties to arbitration if the subject matter of the dispute is covered by an arbitration agreement but must also direct the parties to pay the deficit stamp duty.

In the case of an application for interim relief under Section 9, the court can grant ad-interim relief to safeguard the subject matter of arbitration, regardless of whether the contract is adequately stamped. However, the court must then impound the contract and direct the party to pay the requisite stamp duty.

Appointment of Arbitrators and Sufficiency of Stamp Duty

The Supreme Court, in Intercontinental Hotels Group (India) (P) Ltd. v. Waterline Hotels (P) Ltd.[14], clarified that even if a document is alleged to be inadequately stamped, courts can appoint an arbitrator under Section 11. However, once stamp duty has been paid, the courts cannot review the sufficiency of stamp duty under Section 11(6).

This ruling ensures that arbitrations arising from unstamped agreements are not halted solely due to the stamp duty issue. The courts can enforce the arbitration agreement pending the payment of stamp duty on the main contract.

Recent Developments in Indian Jurisprudence

The issue of stamp duty on arbitration agreements and its impact on their enforceability has been the subject of recent developments in Indian jurisprudence. The Supreme Court, in Weatherford Oil Tool Middle East Limited v. Baker Hughes Singapore Pte., noted that the issue has been referred to a Constitution bench in NN Global Mercantile Private Limited. However, the court emphasized that the pendency of the issue should not deter arbitrations arising from unstamped agreements. The enforcement of the arbitration agreement can proceed, with the payment of stamp duty on the main contract being a subsequent requirement.

These recent developments highlight the courts’ inclination to ensure the continuity of arbitration proceedings and the enforceability of arbitration agreements, even in cases where stamp duty issues arise.

Conclusion

The requirement of issuing a notice of arbitration before filing an application under Section 9 has been a matter of debate. While it is not necessary, there must be a manifest intention to commence arbitral proceedings, and the court must be satisfied with the existence of a valid arbitration agreement.

Third parties’ involvement in Section 9 proceedings is limited, with only parties to the arbitration agreement having the right to seek relief. However, interim orders against third parties can be sought, depending on the specific circumstances of each case.

After the constitution of the arbitral tribunal, the maintainability of Section 9 applications is limited, unless the remedy under Section 17 is deemed inefficacious. Determining the efficacy of the remedy under Section 17 requires a case-by-case analysis.

Stamping of arbitration agreements has been another significant aspect of Section 9 proceedings. Recent developments in Indian jurisprudence have clarified that stamp duty payment is not required for the arbitration agreement itself and that non-payment of stamp duty on the main contract does not invalidate the arbitration clause.

Interim measures of protection in arbitration proceedings play a crucial role in preserving the subject matter of arbitration and maintaining the integrity of the arbitral process. Section 9 of the Arbitration and Conciliation Act, 1996, empowers courts to grant these measures, subject to the general principles governing the grant of interim injunctions under the Code of Civil Procedure.

 

 

[1] Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479

[2] Delta Construction Systems Ltd., Hyderabad v. Narmada Cement Company Ltd., Mumbai, 2001 SCC OnLine Bom 630.

[3] Tata Capital Financial Services Ltd. v. M/s. Deccan Chronicle Holdings Ltd. & Anr., 2013 SCC OnLine Bom 307

[4] (2007) 6 SCC 798

[5] (2007) 7 SCC 125

[6] 2022 SCC OnLine SC 1219.

[7] (1999) 2 SCC 479.

[8] (2004) 3 SCC 155

[9] 2021 SCC OnLine SC 718

[10] 2016 SCC OnLine Del 6560

[11] 2021 SCC OnLine SC 13

[12] (2011) 14 SCC 66

[13] (2019) 9 SCC 209

[14] (2022) 7 SCC 662

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