Arcelor Mittal Nippon Steel India … vs Essar Bulk Terminal Ltd. on 14 September, 2021


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Supreme Court of India

Arcelor Mittal Nippon Steel India … vs Essar Bulk Terminal Ltd. on 14 September, 2021

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

                                                                                       REPORTABLE
                                          IN THE SUPREME COURT OF INDIA
                                           CIVIL APPELLATE JURISDICTION
                                            CIVIL APPEAL NO. 5700 OF 2021
                              [Arising out of Special Leave Petition (Civil) No.13129 of 2021]

                         ARCELOR MITTAL NIPPON STEEL INDIA LTD.                       Appellant (s)

                                                          Versus

                         ESSAR BULK TERMINAL LTD.                                     Respondent (s)



                                                     JUDGMENT

Indira Banerjee, J.

Leave granted.

2. The short question of law raised in this appeal is, whether the

Court has the power to entertain an application under Section 9(1) of

the Arbitration and Conciliation Act, 1996, hereinafter referred to as

“the Arbitration Act”, once an Arbitral Tribunal has been constituted

and if so, what is the true meaning and purport of the expression

“entertain” in Section 9(3) of the Arbitration Act. The next question

is, whether the Court is obliged to examine the efficacy of the remedy

under Section 17, before passing an order under Section 9(1) of the

Arbitration Act, once an Arbitral Tribunal is constituted.

3. The Appellant and the Respondent entered into an agreement for
Signature Not Verified

Digitally signed by
SUNIL KUMAR
Cargo Handling at Hazira Port. The said Cargo Handling Agreement
Date: 2021.09.14
16:18:17 IST
Reason:

was amended from time to time.

1

4. Article 15 of the said Cargo Handling Agreement provided that all

disputes arising out of the Cargo Handling Agreement were to be

settled in Courts, in accordance with the provisions of the Arbitration

Act and be referred to a sole Arbitrator appointed mutually by the

parties.

5. Disputes and differences having arisen under the said Cargo

Handling Agreement, the Appellant invoked the arbitration clause by a

notice of arbitration dated 22nd November 2020. According to the

Appellant, the Respondent did not respond to the notice of arbitration.

6. The Appellant approached the High Court of Gujarat at

Ahmedabad under Section 11 of the Arbitration Act, for appointment of

an Arbitral Tribunal. On or about 30th December, 2020, the Respondent

replied to the notice of arbitration, contending that the disputes

between the parties were not arbitrable and further contending that

the total amount due and payable by the Appellant as on 24 th

December, 2020 was Rs.673.84 crores inclusive of interest of Rs.51.11

crores.

7. On or about 15th January, 2021, the Appellant filed an application

being Commercial Civil Miscellaneous Application No.2 of 2021 under

Section 9 of the Arbitration Act in the Commercial Court and the 12 th

Additional District Judge, District & Sessions Court at Surat. On 16 th

March 2021, the Respondent also filed an application being

Commercial Civil Miscellaneous Application No.99 of 2021 in the

Commercial Court under Section 9 of the Arbitration Act.

2

8. Section 9 of the Arbitration Act is set out hereinbelow for

convenience:-

“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 a 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.”

9. Section 9 as originally enacted, has been renumbered as Section

9(1) by the Arbitration and Conciliation (Amendment) Act (Act 3 of

2016) with effect from 23rd October 2015. The said 2015 Amendment

also incorporated sub-Section (2) and sub-Section (3) reproduced

above.

3

10. Before the enactment and enforcement of the said 2015

Amendment, Section 17 read:-

“17. Interim measures ordered by arbitral tribunal.- (1)
Unless otherwise agreed by the parties, the arbitral tribunal may, at
the request of a party, order a party to take any interim measure of
protection as the arbitral tribunal may consider necessary in respect
of the subject-matter of the dispute.

(2) The arbitral tribunal may require a party to provide appropriate
security in connection with a measure ordered under sub-section
(1).”

11. After enactment of the said 2015 Amendment, Section 17 reads:-

“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.”

4

12. The Commercial Court and 12 th Additional District Judge, District

& Sessions Court at Surat, heard both the applications filed by the

Appellant and the Respondent respectively, under Section 9(1) of the

Arbitration Act and reserved the same for orders on 7th June, 2021.

13. On 9th July 2021, the application filed by the Appellant under

Section 11(6) of the Arbitration Act was disposed of by appointing a

three-member Arbitral Tribunal, comprising of three retired Judges of

this Court, to adjudicate the disputes between the Appellant and the

Respondent.

14. On or about 16th July 2021, the Appellant filed an interim

application being Commercial Civil Miscellaneous Application No.2 of

2021, praying for reference of both the applications filed by the

Appellant and the Respondent respectively under Section 9 of the

Arbitration Act, to the learned Tribunal.

15. Paragraph 3 of the said application filed by the Appellant is set
out hereinbelow for convenience.

“3. I say and submit that this Hon’ble Court had heard the AMNS
Petition and the EBTL Petition extensively, and reserved the
petitions for pronouncement of orders. The matters are listed on 20
July 2021 for pronouncement of orders.”

16. By an order dated 16th July 2021, the Commercial Court

dismissed the said application filed by the Appellant. The Commercial

Court however granted the Appellant 10 days’ time to challenge the

order of the Commercial Court if it so desired.

5

17. The Appellant filed an application being R/Special Civil

Application No.10492 of 2021 in the Gujarat High Court under Article

227 of the Constitution of India challenging the order of the

Commercial Court.

18. The said application under Article 227 of the Constitution was

heard by a Division Bench of the High Court and listed for final

arguments on 2nd August, 2021. In the meanwhile, the High Court

directed the Commercial Court to defer the pronouncement of orders

in the applications under Section 9 of the Arbitration Act till 9 th August,

2021.

19. On 5th August 2021, the application under Article 227 of the

Constitution was heard again and reserved for orders on 9 th August,

2011. The Commercial Court adjourned the pronouncement of orders

in the two applications for interim relief till 31st August, 2021.

20. In the meanwhile, by an order dated 17 th August, 2021, which is

impugned in this Appeal, the High Court dismissed the application filed

by the Appellant under Article 227 of the Constitution of India, holding

that the Commercial Court has the power to consider whether the

remedy under Section 17 of the Arbitration Act is inefficacious and

pass necessary orders under Section 9 of the said Act. The High Court

held:-

“24. Considering the submissions made before us as well as the
judgments cited before us by both the sides, though the learned trial
court has not given proper reasons for dismissing the application
filed by the petitioner, the trial court has committed no error in not

6
granting the prayer prayed for by the petitioner in the interim
application filed in CMA No.2 of 2021. In our opinion the trial court
should be permitted to pronounce the order on both the applications
under Section 9 pending before it keeping in mind the observations
made by us in this judgment and taking into consideration the
provisions of Section 9(3) of the Act.”

21. Mr. Darius Khambata, Senior Advocate appearing on behalf of

the Appellant submitted that Section 9(3) of the Arbitration Act, as

amended, restricts the power of the Court to entertain an application

under sub-Section (1) of Section 9 of the Arbitration Act once an

Arbitral Tribunal has been constituted.

22. Mr. Khambata argued that an Arbitral Tribunal having been

constituted, the Commercial Court cannot proceed further with the

application under Section 9 of the Arbitration Act.

23. Mr. Khambata argued that, the purpose of insertion of Section

9(3) of the Arbitration Act was to curtail the role of the Court. Even

though Section 9(3) does not oust the jurisdiction of the Court under

Section 9(1), it restricts the role of the Court, post the constitution of

an Arbitral Tribunal. Once an Arbitral Tribunal is constituted, the Court

is not to entertain an application under Section 9 of the Arbitration Act

unless it finds that circumstances exist, which may render the remedy

under Section 17 of the Arbitration Act inefficacious.

24. Mr. Khambata submitted that the High Court rightly held that the

Commercial Court had erred in construing the word ‘entertain’

narrowly, observing that entertain would not mean admitting for

7
consideration, but would mean the entire process upto its final

adjudication and passing of an order on merits.

25. Mr. Khambata referred to the observations of the 246th Report of

the Law Commission of August 2014, that the insertion of Section 9(3)

“seeks to reduce the role of the Court in relation to grant of interim

measures once the Arbitral Tribunal has been constituted.” Mr.

Khambata submitted that this also appears to be the spirit of the

UNCITRAL Model Law as amended in 2006. Accordingly, Section 17

has been amended to infuse the Arbitral Tribunal with the same

powers as a Court.

26. Mr. Khambata submitted the Report dated July 30, 2017 of the

High Level Committee to Review the Institutionalisation of Arbitration

Mechanism in India, chaired by Hon’ble Mr. Justice B. N. Srikrishna also

referred to the insertion of Section 9(3) and observed that the “2015

amendments, in two important respects, signal a paradigm shift

towards minimizing judicial intervention in the arbitral process. First,

the amendment to Section 9 of the ACA provides that Courts should

not entertain applications for interim relief from the parties unless it is

shown that interim relief from the Arbitral Tribunal would not be

efficacious.” In the aforesaid report, the Arbitration Act is referred to

as ACA in short.

27. Mr. Khambata cited Amazon.com NV Investment Holdings

LLC v. Future Retail Limited & Ors.1, where this Court, speaking

1 2021 SCC Online SC 557

8
through Nariman J. held that the object of introducing Section 9(3) was

“to avoid Courts being flooded with Section 9 petitions when an

Arbitral Tribunal is constituted for two good reasons – (i) that the

clogged Court System ought to be decongested, and (ii) that an

Arbitral Tribunal, once constituted, would be able to grant interim relief

in a timely and efficacious manner.”

28. Mr. Khambata contended that Section 9(3) has been introduced

to reduce the burden on Courts. Therefore, Section 9(3) must be

construed purposively and any attempt to thwart the mandate of

Section 9(3) must be discouraged.

29. Mr. Khambata argued that Section 9(3) was a measure of

Negative Kompetenz-Kompetenz. This is substantiated by the

corresponding introduction of Section 17(2) which lends further

efficacy and enforceability to orders passed by the Arbitral Tribunal

under Section 17. Mr. Khambata further argued that it is well settled

that a Court becomes functus officio, only after it pronounces, signs

and dates the judgment. Mere dictation of a judgment after it is

reserved, does not constitute pronouncement of a judgment. In

support of the aforesaid submission Mr. Khambata cited State Bank

of India and Ors. v. S. N. Goyal2.

30. Mr. Khambata argued that the fact that an order is reserved does

not mean that the District Court stopped entertaining the Section 9

petitions. Referring to State Bank of India v. S. N. Goyal (supra),

2 (2008) 8 SCC 92 : AIR 2008 SC 2594

9
Mr. Khambata argued that a judge can make corrections to a judgment

and/or in other words continue to adjudicate and thus continue to

entertain a proceeding even after a judgment is pronounced, until it is

signed.

31. Mr. Khambata argued that, in this case the Commercial Court

had not passed its orders in the Section 9 applications. It had not even

pronounced its orders. Thus, as on the date of the impugned order,

the Commercial Court was entertaining the Section 9 applications.

Even today the Commercial Court is entertaining the applications

under Section 9 of the Arbitration Act. The fact that orders were

reserved on 7th June 2021 does not mean that the Commercial Court

stopped entertaining the said petitions.

32. Referring to Deep Chand & Ors v. Land Acquisition Officer

& Others3, Mr. Khambata submitted that the term “adjudication”

means “..formal giving or pronouncing a judgment or decree in a

Court proceeding..” and implies a hearing by a Court. Thus, the term

“entertain” in Section 9(3) of the Arbitration Act, is to be interpreted to

mean “adjudicate” and implies the passing of an order and/or

judgment.

33. Mr. Khambata argued that the word “entertain” in Section 9(3)

has to be interpreted in the context of Section 9(1) of the Arbitration

Act. Section 9(1) of the Arbitration Act provides for the “making of

orders” for the purpose of grant of interim relief. The internal aid to

3 (1994) 4 SCC 99 : AIR 1994 SC 1901

10
construction provided under Section 9 of the Arbitration Act further

substantiates the Appellant’s submission that entertain would

necessarily mean all acts including the act of making orders under

Section 9(1) of the act.

34. Mr. Khambata submitted that while the Respondent’s nominee

Arbitrator has withdrawn, the Respondent has not nominated a new

Arbitrator. Instead of nominating a new arbitrator, the Respondent has

filed an application in the Commercial Court, stating that since the

Arbitral Tribunal is not functioning, the remedy before the Tribunal

would be inefficacious. The same submission has been advanced in

this Court.

35. Relying on the judgment of this Court in A.V. Venkateswaran,

Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani

& Anr4, Mr. Khambata argued that it is well settled that a party cannot

allege inefficacy of a remedy when that party disables itself from

availing the remedy.

36. Mr. Khambata also cited Manbhupinder Singh Atwal v.

Neeraj Kumarpal Shah5, where the Gujarat High Court held that a

party which is intentionally trying to render the remedy under Section

17 inefficacious, cannot be permitted to approach the Court under

Section 9 to secure interim reliefs which can be granted by the

4 AIR 1961 SC 1506 (para 11)
5 2019 GLH (3) 234 (para 6.1 to 6.3)

11
Tribunal. Mr. Khambata submitted that the intention of the Respondent

to avoid the Arbitral Tribunal, is evident all through.

37. Mr. Khambata argued that even though the Section 11

proceedings had finally been disposed of by consensus, the

appointment of the Arbitral Tribunal was delayed by reason of the

conduct of the Respondent. Moreover, after the Appellant issued

notice invoking arbitration on 22nd November, 2020, and called upon

the Respondent to mutually agree to the appointment of a sole

Arbitrator, the Respondent did not respond within 30 days as

mandated in Section 11(4)(a) of the Arbitration Act.

38. Mr. Khambata also submitted that the Respondent filed its

objection to the Section 9 application of the Appellant in the

Commercial Court on 16th March, 2021 and also initiated other

proceedings against the Appellant. The Respondent, however, refused

to file a reply to the petition under Section 11 of the Arbitration Act.

The Respondent filed a belated reply on 7 th June, 2021, after the

hearing of the applications under Section 9 had concluded.

39. Mr. Khambata submitted that it is well settled that a party

invoking Section 9 of the Act must be ready and willing to go to

arbitration. In support of his submission Mr. Khambata cited Firm

Ashok Traders and Anr. v. Gurumukh Das Saluja and Ors.6. Mr.

Khambata contended that the Respondent had itself delayed the

6 (2004) 3 SCC 155

12
nomnation of the substitute Arbitrator, but is now is taking the plea of

inefficacy of the remedy under Section 17 of the Arbitration Act.

40. Mr. Khambata submitted that the High Court had erred in

directing the District Court to pass orders in the applications under

Section 9 of the Arbitration Act, despite the fact that no party had filed

any application in the Commercial Court, challenging the efficacy of

the arbitral proceedings. Mr. Khambata submitted that the High

Court’s interpretation of Section 9(3) of the Arbitration Act is in

accordance with the prevalent law as settled by this Court and the

various High Courts.

41. Mr. Khambata referred to the meaning of “entertain” in Black’s

Law Dictionary (Bryan A. Garner, 8th edition, 2004), which is to “bear

in mind or “to give judicial consideration to”. Mr. Khambata also cited

the judgment of a Division Bench of the Calcutta High Court in Sri.

Tufan Chatterjee v. Sri. Rangan Dhar 7, authored by one of us,

(Indira Banerjee, J.). In Tufan Chatterjee (supra), the word “entertain”

was interpreted to mean “considering an application on merits, even at

the final stage”. Mr. Khambata argued that the interpretation of the

term “entertain” by the Gujarat High Court in the judgment and order

impugned, is consistent with the interpretation of the expression in

Tufan Chatterjee (supra).

42. Mr. Khambata argued that in Energo Engineering Projects

Limited v. TRF Ltd8, authored by one of us (Indira Banerjee, J.) the

7 2016 SCC Online Cal 483 (Paras 35, 43)
8 2016 SCC Online Del 6560 (Para 34)

13
Division Bench of the Delhi High Court observed that once an Arbitral

Tribunal is constituted, an application for interim relief should ordinarily

be decided by the Arbitral Tribunal. Moreover, a Court can only grant

interim relief under Section 9, if circumstances exist which might not

render the remedy under Section 17 of the Arbitration Act efficacious.

43. In Energo Engineering Project Limited v. TRF Limited

(supra), the Delhi High Court noted that the Tribunal was non-

functional because the challenge against the Appellant’s nominee

arbitrator was pending and the Supreme Court had stayed the

arbitration proceedings till the challenge proceedings were decided. In

the circumstances, the High Court held that the Court could pass

orders under Section 9 as the remedy under Section 17 was

inefficacious.

44. Mr. Khambata submitted that in Lakshmi Rattan Engineering
Works Ltd. v Asstt. Commissioner Sales Tax, Kanpur and Anr. 9,
this Court cited with approval the judgment of the Allahabad High
Court in Kundan Lal v. Jagan Nath Sharma 10, and held that
‘entertain’ would mean adjudicate upon and consider for the purpose
of adjudication on merits. In support of the aforesaid proposition, Mr.
Khambata also cited Hindustan Commercial Bank Ltd. v Punnu
Sahu11, Martin & Harris Ltd. v VIth Additional District Judge
and Others12.

45. In conclusion Mr. Khambata submitted that the High Court had

erred in directing the District Court to pass orders in the petitions

under Section 9, even though it had interpreted the word ‘entertain’ to
9 (1968) 1 SCR 505 (Para 9) : AIR 1968 SC 488
10 AIR 1962 All 547 (Para 7)
11 (1971) 3 SCC 124
12 (1998) 1 SCC 732 (Paras 8-10)

14
mean “the whole gamut upto its final adjudication and passing of an

order on merits”. Mr. Khambata argued that, having observed that

the Commercial Court had erred in interpreting ‘entertain’ narrowly

and also that there was no challenge to the efficacy of the arbitral

proceedings before the District Court as on the date of the impugned

order, the High Court should not have directed the Commercial Court

to pass orders.

46. Mr. Kapil Sibal appearing on behalf of the Respondent submitted

that the question before this Court, of whether Section 9(3) of the

Arbitration Act would be applicable in respect of the aforesaid two

applications under Section 9 of the Arbitration Act, filed by the

Appellant and the Respondent respectively, has to be answered in the

negative since the applications were finally heard on merits and

reserved for orders on 7th June 2021, before the constitution of the

Arbitral Tribunal on 9th July, 2021.

47. Mr. Sibal argued that the application under Article 227 filed in the

Gujarat High Court was not maintainable for the following reasons:

(i) The Arbitration Act being a self-contained Code providing
the right of appeal at various stages, Article 227 cannot be
invoked to circumvent the procedure under Arbitration Act.
Power under Article 227 can only be exercised where a
party is left either remediless or where clear bad faith is
shown.

(ii) An application under Article 227 of the Constitution of India
lies where the lower Court has acted outside the bounds
of its authority, without jurisdiction, in violation of

15
principles of natural justice, or if the order suffers from
patent perversity.

(iii) The application before the Gujarat High Court under Article

227 was premature and speculative, since the issue of

whether the Trial Court had acted outside the “bounds of

its authority” or “without jurisdiction” or whether the order

suffered from “patent perversity”, could only be

determined after an order had been passed by the Trial

Court in the Section 9 Applications.

48. Mr. Sibal argued that Section 9(1) of the Arbitration Act provides

that a party will apply to the court before, during or after the arbitral

proceedings. The Courts therefore do not lose jurisdiction upon

constitution of the Arbitral Tribunal.

49. Mr. Sibal argued that Section 9(3) of the Arbitration Act was

neither a non-obstante clause nor an ouster clause, that would render

the courts coram non judice, immediately upon the constitution of the

Arbitral Tribunal.

50. Mr. Sibal argued that subject to the checks and balances

provided under the Arbitration Act itself, a Court would continue to

have powers to grant interim relief under Section 9. In support of his

argument, Mr. Sibal cited the judgment of Delhi High Court in Benara

Bearings and Pistons Limited v. Mahle Engine Components

16
India Private Limited13
and in Energo Engineering Projects

Limited v. TRF Limited (supra).

51. Mr. Sibal argued that Section 9(3) of the Arbitration Act restrains

the court from “entertaining” an application under Section 9, unless

circumstances exist which may not render the remedy provided under

Section 17 efficacious. In this case, only the formality of pronouncing

the order in the Section 9 Applications remained. Since the application

under Section 9 had been entertained, fully heard and arguments

concluded, Section 9(3) of the Arbitration Act would not apply.

52. Mr. Sibal argued that an application is “entertained” when the

court applies its mind to it. Entertain means “admit into consideration”

or “admit in order to deal with”. In support of his submission Mr. Sibal

cited Lakshmi Rattan Engineering Works Ltd. (supra), Anil Kunj

Bihari Saraf v. Namboodas S/o Shankarlal and Ors. 14 and

Kundanlal v. Jagan Nath Sharma (supra).

53. Mr. Kapil Sibal further argued that, whether a matter had already

been “admitted into consideration”, would depend on whether the

Trial Court had admitted into consideration and applied its mind to the

Section 9 Applications, filed by the respective parties, and therefore,

the Section 9 Applications had gone past the stage of “entertainment”,

as contemplated under Section 9(3) of the Arbitration Act. Mr. Sibal

argued that the High Court has erroneously held:

“The word ‘entertain’ occurring in sub-section (3) of section 9 would
not merely mean to admit a matter for consideration, but it also

13 (2017) SCC Online Del 7226 (Paras 24-25)
14 (1996) SCC Online MP 112 (Paras 5-12)

17
entails the whole procedure till adjudication, i.e., passing of final
order.”

54. Mr. Sibal argued that the prayer in the application dated 16 th

July, 2021 filed by the Appellant could never have been granted.

Mr. Sibal pointed out that the Appellant sought an order for referring

all disputes between the parties as mentioned in the two

applications under Section 9 of the Arbitration Act to the Arbitral

Tribunal for adjudication. However, the Arbitration Act did not confer

power under the Arbitration Act on the Court, to relegate or transfer

a pending application under Section 9(1) of the Arbitration Act to

the Arbitral Tribunal, the moment an Arbitral Tribunal were

constituted.

55. Mr. Sibal submitted that the Special Leave Petition filed in this

Court was an abuse of process of Court and an attempt to stop the

competent Court from passing an order in an application under

Section 9 of the Arbitration Act, which had been fully heard. He

argued that if the interpretation of the expression “entertain” as

canvassed by the Appellant, were upheld, it would open a floodgate,

where litigants who wanted to deny urgent reliefs to another party,

would protract litigation by taking procedural defences and avoid

the legislated remedy under Section 9 of the Arbitration Act.

56. Mr. Sibal further submitted that a lot of judicial time, cost and

resources of the parties had been spent in agitating the Section 9

Applications. Both parties had approached the Commercial Courts

and the pleadings in the Section 9 Applications exceeded 2,200

18
pages. The Section 9 Applications were listed before the

Commercial Courts 36 times and were finally argued extensively for

11 full days. The Section 9 Applications were reserved for orders on

7th June, 2021, before the Arbitral Tribunal was constituted.

57. As rightly argued by Mr. Sibal unnecessary delay or expense

frustrates the very purpose of arbitration as held by this Court in

Union of India and Ors. v. Uttar Pradesh State Bridge

Corporation Limited15 cited by Mr. Sibal.

58. Mr. Sibal submitted that since the filing of the Section 9

Applications, the contractual dues of the Appellant to the

Respondent for the interim period aggregate to Rs.255 crores. The

Respondent is suffering every day.

59. Mr. Sibal pointed out that an appeal from an order passed by

the Arbitral Tribunal in an application under Section 17, lies before

the Superior Court. It cannot, therefore, be said that Section 17

proceeding flows any differently from a proceeding in Court under

Section 9 of the Arbitration Act, or has any distinct hierarchy.

60. Mr. Sibal categorically denied that the Respondent has

delayed commencement of arbitration. He submitted that the

disputes raised in the notice of arbitration dated 22 nd November,

2020 given by the Appellant did not correspond to the disputes

raised by the Appellant in its Section 9 Application in the

Commercial Court. The question of arbitrability of the disputes

15 (2015) 2 SCC 52 (Paras 14-17)

19
raised in the notice is still to be determined.

61. Mr. Sibal submitted that the Respondent was in contact with
the Appellant to agree on the name of the Arbitrator. Eventually the
parties consented to have a three member Arbitral Tribunal. On 25 th
August, 2021, Justice G.T. Nanavati (Retired) resigned on the ground
of health, after which there is no functional Arbitral Tribunal. Even
after the Arbitrator appointed by the Respondent resigned, the
Respondent promptly commenced the process for appointment of
substitute arbitrator, and addressed a letter dated 27.08.2021 to
the Appellant.

62. Distinguishing the judgments cited by Mr. Khambata, Mr. Sibal

emphatically argued that the word “entertain” in Section 9(3) of the

Arbitration Act would mean the first occasion when the Court takes

up the application for consideration, and would have no application

to a case where the application is fully heard and orders are

reserved.

63. Section 9(1) of the Arbitration Act, as amended enables a

party to an arbitration agreement to apply to a Court for interim

measures of protection before or during the arbitral proceedings, or

at any time after an award is made and published, but before the

Award is enforced in accordance with Section 36 of the Arbitration

Act.

64. A Civil Court of competent jurisdiction thus has the jurisdiction

to admit, entertain and decide an application under Section 9(1) of

the Arbitration Act, any time before the final arbitral award is

enforced in accordance with Section 36 of the Arbitration Act.

20

65. However, sub-Section (3) of Section 9 of the Arbitration Act, on

which much emphasis has been placed both by Mr. Khambata and Mr.

Kapil Sibal provides that once an 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.

66. Sub-Section (3) of Section 9 has two limbs. The first limb

prohibits an application under sub-Section (1) from being entertained

once an Arbitral Tribunal has been constituted. The second limb

carves out an exception to that prohibition, if the Court finds that

circumstances exist, which may not render the remedy provided under

Section 17 efficacious.

67. To discourage the filing of applications for interim measures in

Courts under Section 9(1) of the Arbitration Act, Section 17 has also

been amended to clothe the Arbitral Tribunal with the same powers to

grant interim measures, as the Court under Section 9(1). The 2015

Amendment also introduces a deeming fiction, whereby an order

passed by the Arbitral Tribunal under Section 17 is deemed to be an

order of Court for all purposes and is enforceable as an order of Court.

68. With the law as it stands today, the Arbitral Tribunal has the

same power to grant interim relief as the Court and the remedy under

Section 17 is as efficacious as the remedy under Section 9(1). There

is, therefore, no reason why the Court should continue to take up

applications for interim relief, once the Arbitral Tribunal is constituted

and is in seisin of the dispute between the parties, unless there is

21
some impediment in approaching the Arbitral Tribunal, or the interim

relief sought cannot expeditiously be obtained from the Arbitral

Tribunal.

69. There can be no dispute with the proposition as held in State

Bank of India and Ors. v. S.N. Goyal (supra), that when a judgment

is reserved, mere dictation does not amount to pronouncement. When

a judgment is dictated in open Court, that amounts to pronouncement.

A judgment not dictated in open Court, has to be pronounced in Open

Court. Even after pronouncement, the Judge can make corrections

before signing and dating the judgment. Once a judge pronounces,

signs and dates the judgment, he becomes functus officio. However,

the law enunciated by this Court in State Bank of India and Ors. v.

S. N. Goyal (supra) is not attracted in this case. The judgment does

not interpret or explain the expression “entertain”.

70. In Deep Chand & Ors v. Land Acquisition Officer (supra),

cited by Mr. Khambata, the question was, whether objections under

Section 49 of the Land Acquisition Act 1894 to acquisition, on the

premise that the property proposed for acquisition was only part of the

house, manufactory or building amounts to an adjudication.

71. This Court referred to Black’s Law Dictionary (6 th edition) where

“adjudication” has been defined as hereunder:-

“Adjudication.- The legal process of resolving a dispute. The formal
giving or pronouncing a judgment or decree in a court proceeding;

also the judgment or decision given. The entry of a decree by a
court in respect to the parties in a case. It implies a hearing by a

22
court, after notice, of legal evidence on the factual issue(s)
involved.”

72. This Court found that a reading of Section 49 of the Land

Acquisition Act showed that a right had been given to the owner of the

land to object to acquisition of part of any house, manufactory or other

building. Decision on the objection under Section 49(1) to acquisition

of only part of a house, manufactory or building would not amount to

an adjudication on the question of whether the land proposed to be

taken was reasonably required for the full and unimpaired use of the

house, manufactory or building. The judgment is not of relevance to

the issues involved in this appeal.

73. There can be no dispute with the proposition in A.V.

Venkateswaran. Collector of Customs, Bombay v Ramchand

Sobhraj Wadhwani and Anr. (supra) that a party cannot allege

inefficacy of a remedy when that party disables itself from availing the

remedy.

74. The judgment in Manbhupinder Singh Atwal v. Neeraj
Kumarpal Shah
(supra) was rendered in facts and circumstances of
that case where proceedings had been pending before the Arbitral
Tribunal under Section 17, but the party against whom relief had been
sought protracted the proceedings, by indulging in making bare,
baseless allegations and insinuations against the Arbitrators of bias
and impropriety and thereafter made allegations against the
Arbitrators of alleged inaction, to make out a case of inefficacy of the
remedy under Section 17. The judgment has no manner of application
in this case.

23

75. In this case there are no materials on record to show that there

were any lapses or laches on the part of the Respondent, which

delayed the constitution of an Arbitral Tribunal. The allegation that the

Respondent had disabled itself from availing the remedy under Section

17, is unsubstantiated. Moreover, mere delay in agreeing to an

Arbitrator does not dis-entitle a party from relief under Section 9 of the

Arbitration Act. Section 11 of the Arbitration Act itself provides a

remedy in case of delay of any party to the arbitration agreement to

appoint an Arbitrator.

76. Mr. Khambata rightly submitted that a party invoking Section 9

of the Act must be ready and willing to go to arbitration. The law

enunciated in Firm Ashok Traders and Anr. v. Gurumukh Das

Saluja and Ors. (supra) is well settled. In this case, both the

Appellant and the Respondent have invoked the jurisdiction of the

Commercial Court under Section 9 of the Arbitration Act.

77. As argued by Mr. Sibal, in Tufan Chatterjee (supra) the

applicant seeking interim relief under Section 9 of the Arbitration Act

had referred to Section 26 of the Amendment Act (Act 3 of 2016) and

contended that the 2015 Amendment would not apply to proceedings

pending when the 2015 Amendment came into force.

78. It was also argued that arbitral proceedings having commenced

before the 2015 Amendment came into effect and/or in other words,

before 23rd October 2015, the 2015 Amendments would not apply to

the arbitral proceedings, which would be governed by the law as it

stood before the amendment. The Arbitral Tribunal would, therefore,

24
not be able to grant relief under Section 17 as amended by the 2015

Amendments. As argued by Mr. Kapil Sibal, the applicability of the

2015 Amendment to pending proceedings under Section 9 of the

Arbitration Act in a Court, as also the power of the Arbitral Tribunal to

grant relief under Section 17 in pending Arbitration proceedings, were

in issue in Tufan Chatterjee (supra).

79. The High Court distinguished Court proceedings from arbitral

proceedings and held that the 2015 Amendment would apply to Court

proceedings. The High Court also negated the contention of the

applicant under Section 9 that the Arbitral Tribunal was not competent

to grant relief under Section 17 as Arbitral proceedings had

commenced before the 2015 Amendment.

80. The judgment in Tufan Chatterjee (supra) was rendered in an

appeal against an order of the District Court dismissing the application

of the appellant under Section 9 of the Arbitration Act, with the

observation that since arbitral proceedings had been initiated, the

Court was no longer authorized to pass orders on an application under

Section 9(1) of the 1996 Act. The High Court interpreted the

expression entertain and held:-

“35. However, as rightly argued by Mr. Bhattacharya, there is
difference between the expressions ‘institute’ and the expression
‘entertain’. The expression ‘institute’ is not synonymous with the
expression ‘entertain’. In Martin & Harris Ltd. v. 6th Additional
District Judge reported in (1998) 1 SCC 732 cited by Mr.
Bhattacharya, the Supreme Court interpreted the expression
‘entertain’ in Clause 21(1)(a) of the U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972, to mean entertaining the
ground for consideration for the purpose of adjudication on merits
and not any stage prior thereto. Unlike the Limitation Act, which bars
the institution of a suit after expiry of the period of limitation,

25
Section 26 prohibits the Court from entertaining an application
under Section 9, except in circumstances specified in Section 9(3),
which necessarily means considering application on merits, even at
the final stage.

36. After amendment by the Amendment Act of 2015, the scope of
Section 17 has considerably been widened and the Arbitral Tribunal
has expressly been conferred the same power, as the Court under
Section 9. An order of the Tribunal under Section 17 is also
enforceable in the same manner as an order of Court under Section
9
, under the provisions of the Civil Procedure Code.”

81. The High Court dismissed the appeal from the order of the
District Court dismissing the application under Section 9 on the ground
that an application for interim relief would have to be filed before the
Arbitral Tribunal.

82. In Energo Engineering Projects Ltd. v. TRF Limited (supra)
authored by one of us (Indira Banerjee, J.), a Division Bench of Delhi
High Court held:-

“27. A harmonious reading of Section 9(1) with Section 9(3) of the
1996 Act, as amended by the 2015 Amendment Act, makes it amply
clear that, even after the amendment of the 1996 Act by
incorporation of Section 9(3), the Court is not denuded of power to
grant interim relief, once an Arbitral Tribunal is constituted.

28. When there is an application for interim relief under Section 9,
the Court is required to examine if the applicant has an efficacious
remedy under Section 17 of getting immediate interim relief from
the Arbitral Tribunal. Once the court finds that circumstances exist,
which may not render the remedy provided under Section 17 of the
1996 Act efficacious, the Court has the discretion to entertain an
application for interim relief. Even if an Arbitral Tribunal is non
functional for a brief period of time, an application for urgent interim
relief has to be entertained by the Court under Section 9 of the 1996
Act.

29. It is a well settled proposition that if the facts and circumstances
of a case warrant exercise of discretion to act in a particular manner,
discretion should be so exercised. An application for interim relief
under Section 9 of the 1996 Act, must be entertained and examined
on merits, once the Court finds that circumstances exist, which may
not render the remedy provided under Section 17 of the said Act
efficacious.

26

30. In our view, the Learned Single Bench patently erred in holding
“there is no impediment or situation where the remedy under
Section 17 of the Act is not efficacious”. The Learned Single Bench
failed to appreciate that the pendency of a Special Leave Petition in
which the constitution of the Arbitral Tribunal was under challenge,
was in itself, a circumstance which rendered the remedy of the
parties under Section 17 uncertain and not efficacious.

xxx xxx xxx

34. An application for interim relief should ordinarily be decided by
the Arbitral Tribunal, once an arbitral tribunal is constituted.
However, if circumstances exist which may not render the remedy
under Section 17 of the 1996 act efficacious, the Court has to
consider the prayer for interim relief on merits, and pass such order,
as the Court may deem appropriate.

35. The Learned Single Bench has not at all considered whether any
interim protection was at all necessary in this case. The bank
guarantee was apparently unconditional. In effect, the appellants
have been restrained from invoking an unconditional guarantee. The
application cannot be heard out until the special leave petition is
disposed of.”

83. Even after enforcement of the 2015 Amendment Act, an
application for interim relief may be filed in Court under Section 9 of
the 1996 Act, before the commencement of arbitration proceedings,
during arbitration proceedings or at any time after an award is made,
but before such award is enforced in accordance with Section 36 of the
1996 Act. The Court has to examine whether the remedy available to
the Applicant under Section 17 is efficacious. In Energo Engineering
Projects Ltd. v. TRF Limited
(supra), the remedy of interim relief
under Section 17 was found to be inefficacious in view of an interim
order passed by this Court in a Special Leave Petition.

84. In Banara Bearings & Pistons Ltd. (supra) cited by Mr. Sibal a
Division Bench of the Delhi High Court, speaking through Badar Durrez
Ahmed J. Held:

“24…… We are of the view that Section 9(3) does not operate as an
ouster clause insofar as the courts’ powers are concerned. It is a

27
well-known principle that whenever the Legislature intents an
ouster, it makes it clear. We may also note that if the argument of
the appellant were to be accepted that the moment an Arbitral
Tribunal is constituted, the Court which is seized of a Section 9
application, becomes coram non judice, would create a serious
vacuum as there is no provision for dealing with pending matters. All
the powers of the Court to grant interim measures before, during the
arbitral proceedings or at any time after the making of the arbitral
award but prior to its enforcement in accordance with Section 36 are
intact (and, have not been altered by the amendment) as contained
in Section 9(1) of the said Act. Furthermore, it is not as if upon the
very fact that an Arbitral Tribunal had been constituted, the Court
cannot deal with an application under sub-section (1) of Section 9 of
the said Act. Section 9(3) itself provides that the Court can entertain
an application under Section 9(1) if it finds that circumstances exist
which may not render the remedy provided under Section 17
efficacious.

25. We may also note that there is no provision under the said Act
which, even as a transitory measure, requires the Court to relegate
or transfer a pending Section 9(1) application to the Arbitral
Tribunal, the moment an Arbitral Tribunal has been constituted.”

85. In M. Ashraf v. Kasim V.K.16 a Division Bench of the Kerala
High Court speaking through R. Narayana Pisharadi J. held:-

“8. ….Even after the amendment of the Act by incorporation of
Section 9(3), the Court is not denuded of the power to grant
interim relief under Section 9(1) of the Act. What is provided under
Section 9(3) of the Act is that, after the constitution of the Arbitral
Tribunal, the Court shall not entertain an application under Section
9(1)
of the Act unless the Court finds that circumstances exist
which may not render the remedy provided under Section 17
efficacious. Normally, the Court shall not entertain an application
under Section 9(1) of the Act after constitution of the Arbitral
Tribunal. But, the Court has the power to entertain an application
under Section 9(1) of the Act even after the constitution of the
Arbitral Tribunal unless the Court finds that in the circumstances of
the case the party has got efficacious remedy under Section 17 of
the Act. An application for interim relief under Section 9(1) of the
Act shall be entertained and examined on merits, once the Court
finds that circumstances exist, which may not render the remedy
provided under Section 17 of the Act efficacious.”

86. In Srei Equipment Finance Limited (Sefl) v. Ray Infra

Services Private Limited & Anr. 17 authored by one of us (Indira

16 (2018) SCC OnLine Ker 4913

17. (2016) SCC OnLine Cal 6765

28
Banerjee J.), the Division Bench of Calcutta High Court held:

“5. Under Section 9 of the Arbitration and Conciliation Act, 1996 –
a party might 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 Court under Section 9 for
interim relief.

6. In our view, the learned Single Bench erred in holding that there
was no scope for further order in the pending application under
Section 9. The learned Single Bench has not considered the
question of depreciation of the value of the assets due to constant
use. Prima facie, the respondent has defaulted in instalments. In
terms of the agreement, the appellant financier is entitled to take
possession of the hypothecated assets. After the enactment of the
Arbitration and Conciliation (Amendment) Act of 2015 with effect
from 23rd October, 2015, the Court is not to entertain an
application under Section 9(1) of the Arbitration and Conciliation
Act
, 1996, once the Arbitral Tribunal has been constituted, unless
the Court finds that circumstances exist, which may not render the
remedy provided under Section 17 efficacious.

7. The hearing before the Arbitral Tribunal may have been
concluded. Proceedings are, however, still pending before the
Arbitral Tribunal. It may have been possible to make an application
before the Arbitral Tribunal. However considering the lethargic
manner in which the learned Arbitrator has been proceeding the
remedy of the Appellant under Section 17 of the Arbitration and
Conciliation Act, 1996 does not appear to be efficacious. The
amendments being recent, complicated issues of law may also
arise with regard to the applicability of the amended provisions to
pending arbitral proceedings.”

87. In Avantha Holdings Limited v. Vistra ITCL India

Limited18 a Single Bench of the Delhi High Court (C. Hari Shankar

J.) held:-

“45. The Court, while exercising its power under Section 9 of the
1996 Act, has to be acutely conscious of the power, vested in the
arbitrator/arbitral tribunal, by Section 17 of the same Act. A
reading of Section 9, and Section 17, of the 1996 Act, reveals that
they are identically worded. The “interim measures”, which can be
ordered by the arbitral tribunal, under Section 17, are the very
same as those which can be ordered by the Court under Section 9.

It is for this reason that sub-section (3) of Section 9 proscribes
grant of interim measures, by the Court, consequent on
constitution of the arbitral tribunal, save and except where the
Court finds that circumstances exist, which may not render the
remedy, under Section 17, to be efficacious. The Court, while
18 2020 SCC OnLine Del 1717

29
exercising jurisdiction under Section 9, even at a pre-arbitration
stage, cannot, therefore, usurp the jurisdiction which would,
otherwise, be vested in the arbitrator, or the arbitral tribunal, yet
to be constituted.”

88. We fully approve the view taken by the Single Bench of the Delhi

High Court in Avantha Holdings Limited (supra) except for the

observation that the “Court, while exercising jurisdiction under Section

9, even at a pre-arbitration stage, cannot usurp the jurisdiction which

would, otherwise, be vested in the arbitrator, or the Arbitral Tribunal,

yet to be constituted”. The bar of Section 9(3) operates after an

Arbitral Tribunal is constituted. There can therefore be no question of

usurpation of jurisdiction of the Arbitral Tribunal under Section 17

before the Arbitral Tribunal is constituted. The Court is obliged to

exercise power under Section 9 of the Arbitration Act, if the Arbitral

Tribunal is yet to be constituted. Whether the Court grants interim

relief or not is a different issue, for that would depend on the facts of

the case – whether the Applicant has made out a good prima facie

case, whether the balance of convenience is in favour of relief being

granting to the applicant, whether the applicant would suffer

irreparable injury by refusal of interim relief etc.

89. In Lakshmi Rattan Engineering Works Ltd. (supra) the Court
held:-

“9. The word “entertain” is explained by a Divisional Bench of the
Allahabad High Court as denoting the point of time at which an
application to set aside the sale is heard by the court. The
expression “entertain”, it is stated, does not mean the same thing as
the filing of the application or admission of the application by the
court. A similar view was again taken in Dhoom Chand
Jain v. Chamanlal Gupta
[AIR 1962 All 543] in which the learned
Chief Justice Desai and Mr Justice Dwivedi gave the same meaning
to the expression “entertain”. It is observed by Dwivedi, J., that the
word “entertain” in its application bears the meaning “admitting to

30
consideration”, and therefore when the court cannot refuse to take
an application which is backed by deposit or security, it cannot
refuse judicially to consider it. In a single bench decision of the same
court reported in Bawan Ram v. Kunj Beharilal [AIR 1961 All 42] one
of us (Bhargava, J.) had to consider the same rule. There the deposit
had not been made within the period of limitation and the question
had arisen whether the court could entertain the application or not.
It was decided that the application could not be entertained because
proviso (b) debarred the court from entertaining an objection unless
the requirement of depositing the amount or furnishing security was
complied with within the time prescribed. In that case the word
“entertain” is not interpreted but it is held that the Court cannot
proceed to consider the application in the absence of deposit made
within the time allowed by law. This case turned on the fact that the
deposit was made out of time. In yet another case of the Allahabad
High Court reported in Haji Rahim Bux & Sons v. Firm Samiullah &
Sons
[AIR 1963 All 326] a Division Bench consisting of Chief Justice
Desai and Mr Justice S.D. Singh interpreted the words of Order 21,
Rule 90, by saying that the word “entertain” meant not “receive” or
“accept” but “proceed to consider on merits” or “adjudicate upon”.

9. In our opinion these cases have taken a correct view of the word
“entertain” which according to dictionary also means “admit to
consideration”. It would therefore appear that the direction to the
court in the proviso to Section 9 is that the court shall not proceed
to admit to consideration an appeal which is not accompanied by
satisfactory proof of the payment of the admitted tax. …”

90. In Kundan Lal v Jagan Nath Sharma and Ors. (supra), a
Division Bench of Allahabad High Court held that the expression
“entertain” did not mean the same thing as the filing of the application
or admission of the application by the Court. The dictionary meaning
of the word “enterain” was to deal with or to take matter into
consideration. The High Court further held:-

“7. The use of the word ‘entertain’ in the proviso to R. 90 of Or. XXI
denotes a point of time at which an application to set aside the sale
is heard by the court. This appears to be clear from the fact that in
the proviso it is stated that no application to set aside a sale shall be
entertained ‘upon any ground which could have been taken by the
applicant on or before the date on which the sale proclamation was
drawn up.’ Surely, the question as to the consideration of the
grounds upon which the application is based can only arise when it
is being considered by the court on the merits, that is, when the
court is called upon to apply its mind to the grounds urged in the
application. In our view the stage at which the applicant is required
to make the deposit or give the security within the mening of Cl. (b)
of the proviso would come when the hearing of the application is
due to commence.”

31

91. In Hindustan Commercial Bank Ltd. v Punnu Sahu (supra),

the Court held that the expression “entertain” in the proviso to clause

(b) Order 21 Rule 90 (as amended by Allahabad High Court), means to

“adjudicate upon” or “proceed to consider on merits” and not

“initiation of proceeding.”

92. In Martin & Haris Limited (supra), the Court was considering

proviso to Section 21 of the U.P. Urban Buildings (Regulation of Letting,

Rent and Eviction) Act, 1972 which provided that where the building

was in the occupation of a tenant since before its purchase by the

landlord, such purchase being made after the commencement of this

Act, no application shall be entertained on the grounds mentioned in

Clause (a), unless a period of 3 years has elapsed since the date of

such purchase and the landlord has given a notice in that behalf to the

tenant, not less than 6 months before such application, and such

notice may be given before the expiration of the aforesaid period of 3

years. The Court held :-

“ Thus the word “entertain” mentioned in the first proviso to Section
21(1)
in connection with grounds mentioned in clause (a) would
necessarily mean entertaining the ground for consideration for the
purpose of adjudication on merits and not at any stage prior thereto
as tried to be submitted by learned Senior Counsel, Shri Rao, for the
appellant.”

93. It is now well settled that the expression “entertain” means to

consider by application of mind to the issues raised. The Court

entertains a case when it takes a matter up for consideration.

The process of consideration could continue till the pronouncement of

judgment as argued by Khambata. Once an Arbitral Tribunal is

32
constituted the Court cannot take up an application under Section 9 for

consideration, unless the remedy under Section 17 is inefficacious.

However, once an application is entertained in the sense it is taken up

for consideration, and the Court has applied its mind to the Court can

certainly proceed to adjudicate the application.

94. Mr. Sibal rightly submitted that the intent behind Section 9(3)

was not to turn back the clock and require a matter already reserved

for orders to be considered in entirety by the Arbitral Tribunal under

Section 17 of the Arbitration Act.

95. On a combined reading of Section 9 with Section 17 of the

Arbitration Act, once an Arbitral Tribunal is constituted, the Court would

not entertain and/or in other words take up for consideration and apply

its mind to an application for interim measure, unless the remedy

under Section 17 is inefficacious, even though the application may

have been filed before the constitution of the Arbitral Tribunal. The bar

of Section 9(3) would not operate, once an application has been

entertained and taken up for consideration, as in the instant case,

where hearing has been concluded and judgment has been reserved.

Mr. Khambata may be right, that the process of consideration

continues till the pronouncement of judgment. However, that would

make no difference. The question is whether the process of

consideration has commenced, and/or whether the Court has applied

its mind to some extent before the constitution of the Arbitral Tribunal.

33
If so, the application can be said to have been entertained before

constitution of the Arbitral Tribunal.

96. Even after an Arbitral Tribunal is constituted, there may be

myriads of reasons why the Arbitral Tribunal may not be an efficacious

alternative to Section 9(1). This could even be by reason of temporary

unavailability of any one of the Arbitrators of an Arbitral Tribunal by

reason of illness, travel etc.

97. Applications for interim relief are inherently applications which

are required to be disposed of urgently. Interim relief is granted in aid

of final relief. The object is to ensure protection of the property being

the subject matter of Arbitration and/or otherwise ensure that the

arbitration proceedings do not become infructuous and the Arbitral

Award does not become an award on paper, of no real value.

98. The principles for grant of interim relief are (i) good prima facie

case, (ii) balance of convenience in favour of grant of interim relief and

(iii) irreparable injury or loss to the applicant for interim relief. Unless

applications for interim measures are decided expeditiously,

irreparable injury or prejudice may be caused to the party seeking

interim relief.

99. It could, therefore, never have been the legislative intent that

even after an application under Section 9 is finally heard relief would

have to be declined and the parties be remitted to their remedy under

Section 17.

34

100. When an application has already been taken up for consideration

and is in the process of consideration or has already been considered,

the question of examining whether remedy under Section 17 is

efficacious or not would not arise. The requirement to conduct the

exercise arises only when the application is being entertained and/or

taken up for consideration. As observed above, there could be

numerous reasons which render the remedy under Section 17

inefficacious. To cite an example, the different Arbitrators constituting

an Arbitral Tribunal could be located at far away places and not in a

position to assemble immediately. In such a case an application for

urgent interim relief may have to be entertained by the Court under

Section 9(1).

101. As pointed out by Mr. Khambata, the 246 th Report of the Law

Commission, submitted in August 2014 states that Section 9(3) seeks

to reduce the role of the Court in relation to grant of interim measure,

once the Arbitral Tribunal has been constituted. This is also in keeping

with the UNCITRAL Model Law which discourages Court proceedings in

relation to disputes arising out of an agreement which contains a

clause for arbitration.

102. As held by this Court in Amazon.com NV Investment

Holdings LLC v. Future Retail (supra), the object of introducing

Section 9(3) was to avoid Courts being flooded with applications under

Section 9 of the Arbitration Act.

35

103. Negative Kompetenz-Kompetenz is a sequel to the rule of priority

in favour of the Arbitrators, that is, the requirement for parties to an

arbitration agreement to honour their undertaking to submit any

dispute covered by such an agreement to arbitration. This entails the

consequence that the Courts are prohibited from hearing such

disputes.

104. In Chloro Controls India Private Limited v. Severn Trent

Water Purification Inc.19, this Court observed that majority of the

countries admit to the positive effect of kompetenz – kompetenz

principle, which requires that the Arbitral Tribunal must exercise

jurisdiction over the dispute under the arbitration agreement. Thus,

challenge to the existence or validity of the arbitration agreement

would not prevent the Arbitral Tribunal from proceeding with the

hearing and ruling upon its jurisdiction. If it retains jurisdiction, it may

make an award on the substance of the dispute, without waiting for

the outcome of any court action aimed at deciding the issue of

jurisdiction.

105. As held by this Court in Vidya Drolia and Ors. v. Durga

Trading Corporation20 :-

“129. Principles of competence-competence have positive and
negative connotations. As a positive implication, the Arbitral
Tribunals are declared competent and authorised by law to rule as to
their jurisdiction and decide non-arbitrability questions. In case of
expressed negative effect, the statute would govern and should be

19 (2013) 1 SCC 641
20 (2021) 2 SCC 1 at page 98

36
followed. Implied negative effect curtails and constrains interference
by the court at the referral stage by necessary implication in order
to allow the Arbitral Tribunal to rule as to their jurisdiction and
decide non-arbitrability questions. As per the negative effect,
courts at the referral stage are not to decide on merits,
except when permitted by the legislation either expressly or
by necessary implication, such questions of non-arbitrability.
Such prioritisation of the Arbitral Tribunal over the courts
can be partial and limited when the legislation provides for
some or restricted scrutiny at the “first look” referral stage.
We would, therefore, examine the principles of competence-
competence with reference to the legislation, that is, the
Arbitration Act.”
[Emphasis supplied]

106. As held in Vidya Drolia (supra), the Courts do not decide on

merits except when permitted by legislation either expressly or by

necessary implication. Prioritisation of the Arbitral Tribunal over the

the Courts can be partial and limited when the legislation so provides.

Vidya Drolia (supra) was referred to a larger Bench, but on a different

issue.

107. It is reiterated that Section 9(1) enables the parties to an

arbitration agreement to approach the appropriate Court for interim

measures before the commencement of arbitral proceedings, during

arbitral proceedings or at any time after the making of an arbitral

award but before it is enforced and in accordance with Section 36 of

the Arbitration Act. The bar of Section 9(3) operates where the

application under Section 9(1) had not been entertained till the

constitution of the Arbitral Tribunal. Ofcourse it hardly need be

mentioned that even if an application under Section 9 had been

entertained before the constitution of the Tribunal, the Court always

has the discretion to direct the parties to approach the Arbitral

Tribunal, if necessary by passing a limited order of interim protection,

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particularly when there has been a long time gap between hearings

and the application has for all practical purposes, to be heard afresh,

or the hearing has just commenced and is likely to consume a lot of

time. In this case, the High Court has rightly directed the Commercial

Court to proceed to complete the adjudication.

108. For the reasons discussed above, the appeal is allowed only to
the extent of clarifying that it shall not be necessary for the
Commercial Court to consider the efficacy of relief under Section 17,
since the application under Section 9 has already been entertained
and considered by the Commercial Court. The judgment and order
under appeal does not, otherwise, call for interference.

.………………………………….J.

[ INDIRA BANERJEE ]

…………………………………..J.

[ J. K. MAHESHWARI ]
NEW DELHI;

SEPTEMBER 14, 2021

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