Section 9 of the Arbitration and Conciliation Act 1996 is the interim measures provision. It allows a party to an arbitration agreement to approach the court for interim protective measures before, during, or after the arbitral proceedings, but before the award is enforced. The provision is short. Its operational reach is wide. For commercial counsel, the question is when to use it.
The choice between Section 9 and Section 17 (interim measures by the arbitral tribunal) is not always obvious. The interaction between Section 9, the IBC moratorium, and SARFAESI proceedings is not always clear. The drafting of the application materially affects the relief obtained. This article addresses the framework.
What Section 9 Permits
Section 9 enumerates the interim measures the court may grant. The list is broad. It includes preservation, interim custody, or sale of goods; securing the amount in dispute; detention, preservation, or inspection of any property; interim injunction; appointment of a receiver; and any other interim measure that the court thinks just and convenient.
The threshold the applicant must meet is similar to the Order 39 standard in the Code of Civil Procedure: prima facie case, balance of convenience, and irreparable injury. The court applies the standard with awareness that interim relief should not prejudge the arbitral merits.
Section 9 Versus Section 17
Section 17 of the same Act empowers the arbitral tribunal to grant interim measures. After the 2015 Amendment, Section 17 orders are enforceable as if they were court orders. The question is when to approach the court under Section 9 and when to approach the tribunal under Section 17.
The framework:
One. Before the arbitral tribunal is constituted, only Section 9 is available. The application is made to the principal civil court of original jurisdiction in the district, or to the High Court of original jurisdiction.
Two. After the tribunal is constituted, Section 17 is the primary route. Section 9 remains available but only in circumstances where the tribunal’s interim relief would not be efficacious. Where the relief sought involves third parties (a bank, a depositary, an authority) over whom the tribunal has no direct jurisdiction, Section 9 is appropriate. Where the relief sought is purely inter partes, Section 17 is the cleaner route.
Three. After the award is rendered but before its enforcement under Section 36 (in the case of a domestic award) or under Part II (in the case of a foreign award), Section 9 may be invoked to preserve the position pending enforcement. This is particularly useful where the award debtor is dissipating assets.
When Section 9 Is the Right First Move
Section 9 is the right first move in four recurring fact patterns.
One. The asset preservation pattern. The respondent has assets that may be dissipated before the arbitral tribunal is constituted. The applicant moves under Section 9 for an order securing the assets, often in the form of an attachment, a deposit into court, or an injunction restraining transfer.
Two. The bank guarantee invocation pattern. The respondent is about to invoke a bank guarantee on a contractually dubious basis. The applicant moves for an injunction restraining invocation, on the established grounds of fraud or special equities, until the arbitral tribunal can hear the matter.
Three. The custody pattern. Goods, documents, or other movable property are at risk. The applicant moves for interim custody or sale, preserving the value pending the award.
Four. The injunction pattern. The respondent is about to take some action (terminating a contract, transferring shares, holding a board meeting) that would prejudice the applicant’s position in the arbitration. An injunction maintains the status quo.
Drafting Considerations
The Section 9 application is a hybrid document. It is, in substance, an Order 39 application, but it must establish the arbitration agreement as the jurisdictional basis. The structure that has worked in practice:
- Brief recital of the underlying contract and the arbitration clause
- Statement of the dispute and the cause of action
- Description of the interim measure sought, with reference to the specific sub-clause of Section 9
- Pleading of prima facie case, balance of convenience, and irreparable injury
- Undertaking to take steps for the constitution of the arbitral tribunal within a defined period
- List of documents supporting the application
The undertaking on constitution of the tribunal is important. Where the application is made before the tribunal is constituted, the court will typically include in its order a direction to commence arbitration within 90 days. Failure to do so may lead to the interim order being vacated.
Interaction with IBC Moratorium
Where the respondent is a corporate debtor and CIRP has commenced, the moratorium under Section 14 of the IBC stays the Section 9 application and any interim relief obtained. The applicant’s remedy is to participate in the CIRP and submit its claim through the Resolution Professional. The interim relief, if obtained before the moratorium, does not survive the moratorium except to the extent of preserving assets already in the applicant’s custody.
Where the respondent is a personal guarantor and the IBC framework for personal guarantors has commenced, the position is similar.
Practical Cautions
Three cautions deserve attention.
One. The Section 9 application should not preview the merits of the arbitration. The court grants interim relief to preserve the position, not to predispose the tribunal. Counsel who write the application as a merits argument find the court reluctant to grant relief.
Two. The undertaking on commencement of arbitration must be honoured. Where the applicant obtains an injunction under Section 9 and then delays commencement of arbitration, the respondent moves for vacation of the injunction. Courts have been responsive to such applications.
Three. The interim measure should be necessary, not merely useful. The court applies a discipline. An overbroad application is partially or fully refused. A focused application is granted.
Conclusion
Section 9 is the most powerful interim remedy available to a commercial party with an arbitration clause. It is faster than the arbitral tribunal because it does not depend on the tribunal being constituted. It binds third parties in a way that Section 17 cannot. It preserves the position while the longer arbitration moves through its phases. The discipline is to use it where it is necessary, draft it tightly, and commit to the underlying arbitration on a defined timeline. Counsel who use Section 9 strategically materially improve their client’s recovery prospects.
Endnotes
1. Arbitration and Conciliation Act 1996, Sections 9 and 17.
2. Arbitration and Conciliation (Amendment) Act 2015 (Section 17 enforceability).
3. Code of Civil Procedure 1908, Order 39 (interim relief framework).
4. Insolvency and Bankruptcy Code 2016, Section 14 (moratorium).
5. Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 (Section 17 enforceability).