Section 9 Arbitration: Urgent Interim Relief from Indian Courts

Section 9 of the Arbitration and Conciliation Act 1996 allows a party to ask a court for interim protection — an injunction, a receiver, preservation or sale of goods, inspection of property, or an order securing the amount in dispute — before the arbitration begins, while it is running, and after the award is made but before it is enforced under Section 36. Once the arbitral tribunal has been constituted, Section 9(3) closes that door unless the court finds that circumstances exist which may not render the Section 17 remedy before the tribunal efficacious. Where the order is obtained before the arbitration begins, Section 9(2) requires the arbitral proceedings to be commenced within ninety days of the order.

Those three sentences contain the whole architecture, and the errors seen most often in practice are failures to hold one of them in mind. As an Advocate practising at the Delhi High Court and Senior Partner at Unified Chambers And Associates, I see three recur: a party moves the court after the tribunal is already in place and is turned away under Section 9(3); a party obtains an order and lets the ninety days lapse without invoking arbitration; a party pleads urgency but not the ingredients the court has to be satisfied about. This note sets out what the section permits, when it is open, what standard the court applies, which court to approach, and how the remedy sits alongside Section 17.

What interim relief can a court actually grant under Section 9?

Section 9(1) gives two heads of relief.

Under Section 9(1)(i), a party may apply for the appointment of a guardian for a minor or a person of unsound mind for the purposes of the arbitral proceedings.

Under Section 9(1)(ii), a party may apply for an interim measure of protection in respect of five specified matters:

Clause (a) — goods. The preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement. The power of sale matters where the goods are perishable or their value is falling; the sale proceeds then stand in place of the goods.

Clause (b) — securing the amount in dispute. This is the workhorse in commercial matters. It is the arbitral analogue of attachment before judgment, and it is what a claimant reaches for when the respondent is stripping assets, transferring receivables, or restructuring itself out of the claim.

Clause (c) — detention, preservation or inspection. Of any property or thing which is the subject-matter of the dispute, or as to which any question may arise in the arbitration. The clause expressly authorises a person to enter upon land or a building in the possession of any party, to take samples, to make observations and to try experiments, where that is necessary or expedient for obtaining full information or evidence. In construction and plant disputes this matters because the condition of the site or the machine is evidence that degrades by the week.

Clause (d) — injunction or receiver. An interim injunction or the appointment of a receiver.

Clause (e) — the residuary head. Such other interim measure of protection as may appear to the Court to be just and convenient. This is the source of the disclosure-of-assets direction, the direction to furnish a bank guarantee, the order restraining invocation or encashment of a guarantee, and the order restraining a party from operating a particular account, in each case where the facts justify it.

The section closes with words that decide the extent of the power: 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. A Section 9 court is exercising, in an arbitral setting, the interim jurisdiction it exercises in a suit.

When is Section 9 available — before, during, or after the arbitration?

Section 9(1) opens with three windows: before arbitral proceedings, during them, or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36. That temporal reach is the single feature that distinguishes Section 9 from Section 17, and it should drive the choice of forum.

Before the arbitration begins: the ninety-day condition in Section 9(2)

A party need not wait for the arbitration to be on foot. What the court will look for is a valid arbitration agreement satisfying Section 7, and a genuine, manifested intention to arbitrate rather than an attempt to obtain an injunction and then sit on it. It is settled that a Section 9 application is competent before the commencement of arbitral proceedings, provided the applicant shows that it is taking effective steps to set the arbitration in motion; the court is entitled to satisfy itself that a reference will actually follow the order it is being asked to make.

Section 9(2) then imposes the discipline. Where a court passes an interim order under sub-section (1) before the commencement of arbitral proceedings, the arbitral proceedings shall be commenced within ninety days from the date of that order, or within such further time as the Court may determine.

Two practical points follow. First, "commencement" is not the constitution of the tribunal. Section 21 provides that, unless the parties agree otherwise, arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Delivering the Section 21 notice, provably, is what stops the clock. Second, the statute does not itself state the consequence of default. In practice the interim order becomes vulnerable to being vacated on that ground alone, and the safer course is to seek an extension from the same court before the ninety days run out rather than after.

After the award but before enforcement

The post-award window is under-used. Between the making of the award and its enforcement under Section 36, an award holder may apply under Section 9 to secure the fruits of the award — commonly a direction to deposit the awarded sum, to furnish security, or to disclose assets — where there is material suggesting the award debtor is placing assets beyond reach.

This is distinct from the conditions a court may impose under Section 36(3) when staying an award challenged in a Section 34 petition. Section 36(2) makes clear that merely filing a Section 34 application does not render the award unenforceable; a separate stay application is required, and Section 36(3) permits a stay for reasons recorded in writing and subject to conditions, its first proviso directing the court to have due regard to the provisions for stay of a money decree under the Code of Civil Procedure where the award is for money. The two are different proceedings addressing overlapping commercial risk, and should be pleaded as such.

Note the outer limit: Section 9 in this window runs only until the award is enforced under Section 36.

Does Section 9 remain open once the arbitral tribunal is constituted?

This is where Section 9(3) does its work, and it is the provision most often overlooked.

Section 9(3) provides that 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.

The policy behind it is plain: the same 2015 Amendment gave Section 17 orders the enforceability they had always lacked, so there was no longer a reason to route ordinary interim applications through the court once a tribunal existed. Section 9(3) is the mirror image of that reform.

Three features of the sub-section repay attention.

It bites only on constitution of the tribunal, not on invocation of arbitration and not on the filing of a Section 11 petition. Until the tribunal is in place, Section 9 is fully available.

It is a restraint, not an ouster. The court retains jurisdiction; what it must do is satisfy itself, on material, that the Section 17 remedy would not be efficacious. Typical grounds are that the relief sought must operate against a person who is not a party to the arbitration agreement and therefore beyond the tribunal's reach, that the tribunal is not in a position to sit within the time the urgency permits, or that the measure needed is one only a court can effectively deliver.

The operative word is "entertain". It has been construed to mean taking up for consideration, rather than finally deciding, so the restraint attaches at the point the court applies its mind to the application. The established position is that where a court has already entertained a Section 9 application and substantially heard it before the tribunal was constituted, it is not obliged to relegate the parties to Section 17 and may proceed to render its decision. The corollary is procedural and worth acting on: a Section 9 applicant who expects a tribunal to be constituted shortly should press for the application to be taken up and heard, not merely filed and adjourned.

Section 9 or Section 17 — how do the two compare?

Section 17(1), as substituted in 2015, gives the arbitral tribunal the same list of interim measures as Section 9(1), in materially identical terms — the only wording change being that the residuary measure must appear just and convenient to the arbitral tribunal rather than to the Court. The differences between the two provisions are structural rather than substantive, with one exception of timing. The 2015 substitution had also allowed a tribunal to act after the award was made but before enforcement under Section 36; the Arbitration and Conciliation (Amendment) Act 2019 omitted those words from Section 17(1), leaving the post-award window to Section 9 alone.

The enforceability line in that table is the reform that changed practice. Before 23 October 2015, Section 17 permitted the tribunal to order interim measures but supplied no machinery to enforce them, and parties treated it as advisory. Section 17(2) now provides that, subject to any orders passed in an appeal under Section 37, an order issued by the arbitral tribunal under the section shall be deemed an order of the Court for all purposes and enforceable under the Code of Civil Procedure 1908 as if it were one.

That deeming provision reaches further than it first appears. In the context of an India-seated institutional arbitration conducted under rules that themselves provide for an emergency arbitrator, it has been held that the emergency arbitrator's award answers the description of an order under Section 17(1) and is accordingly enforceable under Section 17(2) — notwithstanding that the Act nowhere uses the expression "emergency arbitrator".

What standard does a court apply to a Section 9 application?

Section 9 does not itself state a test. Because the closing words of the sub-section equate the court's power to its power in proceedings before it, the court draws on the principles that govern the corresponding interim reliefs under the Code of Civil Procedure:

• an interim injunction under Section 9(1)(ii)(d) is assessed on the principles that govern **Order XXXIX Rules 1 and 2**;
• the appointment of a receiver on the principles governing **Order XL**;
• an order securing the amount in dispute under Section 9(1)(ii)(b) on the principles underlying **Order XXXVIII Rule 5**;
• inspection, sampling and site observation under Section 9(1)(ii)(c) on the approach the Code takes to commissions and to preservation of property.

For injunctive relief this produces the familiar three-factor enquiry, and an application that does not plead all three invites refusal:

1. A prima facie case. Not a demonstrated entitlement, but a serious question fit to be tried in the arbitration — which means pleading the arbitration agreement, the contractual right, the breach relied on, and the relief that will be claimed before the tribunal.

2. The balance of convenience. Whether more hardship results from refusing the order than from granting it, assessed on the concrete commercial position of both sides rather than asserted in the abstract.

3. Irreparable injury. Harm that cannot be compensated in money through the eventual award. Where the claim is purely for money, this is the hardest limb, and it is usually met not by asserting loss but by evidencing the risk of the award being rendered a paper decree — asset transfers, encumbrances created after the dispute arose, closure of operations, unexplained movement of receivables.

For an order under Section 9(1)(ii)(b), the enquiry is closer to Order XXXVIII Rule 5: is the respondent, with intent to obstruct or delay realisation, disposing of or removing property? The extent to which those technicalities constrain a Section 9 court has been settled in favour of a measure of flexibility: the court is not held to the strict procedural rigour of the Code when granting relief under Section 9, but the well-established principles underlying Order XXXVIII Rule 5 are not to be discarded either, and an unsupported apprehension of dissipation will not do. The working consequence for a pleader is unchanged: annex the material that shows dissipation, do not merely allege it.

Where relief is sought without notice, the court will expect the reason for proceeding ex parte to be pleaded specifically, consistently with the caution the Code requires before an injunction is granted without hearing the other side, and will ordinarily grant an ad interim order returnable on a short date.

Which court hears a Section 9 application?

Three provisions have to be read together.

Section 2(1)(e) defines "Court". For an arbitration other than an international commercial arbitration, it is the principal Civil Court of original jurisdiction in a district, and includes a High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration had they been the subject-matter of a suit — but not a Civil Court of a grade inferior to that principal Civil Court, and not a Court of Small Causes. For an international commercial arbitration, as defined in Section 2(1)(f), it is the High Court.

Section 10 of the Commercial Courts Act 2015 then reroutes the filing where the subject-matter of the arbitration is a commercial dispute of Specified Value — a threshold reduced to three lakh rupees by the 2018 amendment to that Act. Applications and appeals under Part I go to the Commercial Division of the High Court where they lie on the original side, and to the Commercial Court exercising territorial jurisdiction where they would otherwise lie before a principal Civil Court in a district.

Section 42 fixes the consequence of the choice. Where an application under Part I has been made in a Court in respect of an arbitration agreement, that Court alone has jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement, notwithstanding anything elsewhere in Part I or in any other law. Because a Section 9 application is very often the first application filed, the court chosen for it will ordinarily become the court for the Section 34 challenge and for enforcement under Section 36. One qualification belongs here: a petition under Section 11 is governed by that section's own scheme and is made to the High Court or the Supreme Court, so it is not the application that fixes jurisdiction for the purposes of Section 42. Subject to that, the forum selected at the Section 9 stage should be chosen deliberately, not by proximity.

The forums this chambers appears before are set out on the courts and jurisdictions page, and the wider procedural setting in the note on commercial litigation in India.

Can Section 9 be used where the arbitration is seated outside India?

Part I of the Act applies where the place of arbitration is in India. A Constitution Bench settled in 2012 that Part I has no application to arbitrations seated outside India, departing from an earlier line of authority which had read Part I as applying to foreign-seated arbitrations unless the parties excluded it expressly or by necessary implication. That ruling was given prospective effect, so arbitration agreements executed before 6 September 2012 continued to be governed by the earlier view.

That left foreign-seated parties without recourse to Indian courts for interim protection over assets in India, and the 2015 Amendment corrected it. The proviso to Section 2(2) now provides that, subject to an agreement to the contrary, Section 9, Section 27 and specified appeal provisions of Section 37 also apply to an international commercial arbitration even if the place of arbitration is outside India, where an arbitral award made or to be made at that place is enforceable and recognised under Part II of the Act.

Two conditions are embedded there and both are frequently missed. The extension operates only for an international commercial arbitration within Section 2(1)(f), not for a domestic arbitration that the parties have chosen to seat abroad. And it is defeasible: parties can contract out of it, and institutional rules or a bespoke clause excluding recourse to national courts for interim measures may do exactly that. The clause should be read before the application is drafted, not after.

A worked sequence: securing a disputed payment before the arbitration begins

Take a supply contract with an arbitration clause, an unpaid running account, and information that the counterparty has begun transferring its principal immovable asset.

1. Verify the arbitration agreement against Section 7 — in writing, covering the dispute, identifying the seat. An agreement that fails Section 7 takes the matter out of Section 9 and into a civil suit.

2. Identify the correct Court under Section 2(1)(e) read with Section 10 of the Commercial Courts Act, keeping Section 42 in view because that choice governs everything that follows.

3. Issue the Section 21 notice invoking arbitration, and prove delivery. Doing this before or with the Section 9 filing answers the intention-to-arbitrate enquiry and starts the clock Section 9(2) will otherwise impose.

4. Draft to the specific clause. Name the sub-clause of Section 9(1)(ii) relied on. Relief under clause (b) is pleaded differently from relief under clause (d), and a composite prayer naming neither is the commonest drafting weakness.

5. Plead and annex the three limbs. The contract and running account for the prima facie case; the commercial position of both sides for balance of convenience; and, for irreparable injury, the documentary trail of dissipation — encumbrance searches, registry records, changes in shareholding or directorship, notices of closure.

6. Ask for a workable order, not the widest one. A direction to furnish security in a stated amount, or to disclose assets on affidavit within a fixed period, is more likely to be granted and far easier to enforce than a sweeping restraint on all dealings.

7. Comply with Section 9(2). Diarise ninety days from the date of the order, and apply to the same court for further time before the period expires if the tribunal cannot be constituted within it.

8. Move to Section 17 once the tribunal is constituted. Continuations, variations and fresh relief belong before the tribunal from that point, unless the Section 9(3) exception can genuinely be made out.

9. Preserve the appeal. An order granting or refusing a Section 9 measure is appealable under Section 37(1); Section 37(3) bars a second appeal while leaving intact the right to approach the Supreme Court.

What Section 9 will not do

A realistic view of the limits saves wasted applications.

• **It does not decide the dispute.** A Section 9 court forms a prima facie view for the purpose of protection and no more; findings at this stage do not bind the tribunal on the merits.
• **It does not reach strangers to the arbitration agreement.** Relief under Section 9 is ordinarily directed against a party. Where the asset sits with a genuinely independent third party, the answer usually lies in a different proceeding.
• **It yields to an insolvency moratorium.** Section 14(1)(a) of the Insolvency and Bankruptcy Code 2016 names an "arbitration panel" expressly, so once a corporate insolvency resolution process is admitted, both the arbitration and a Section 9 application against the corporate debtor are caught. The scope of that freeze is set out in the note on the <a href="/blog/moratorium-section-14-ibc-scope" style="color: inherit; text-decoration: underline; text-underline-offset: 2px;">Section 14 IBC moratorium</a>.
• **It is not a substitute for diligence in the reference.** An interim order obtained and then left unattended while the arbitration stalls invites an application to vacate.
• **It does not create a claim that the contract does not support.** The measure protects the subject-matter of the reference; it cannot enlarge it.

One connected point is worth recording for smaller suppliers. Section 18(3) of the MSMED Act 2006 provides that where conciliation before a Facilitation Council fails, the Council itself takes up the dispute for arbitration or refers it to an alternate dispute resolution institution, and the 1996 Act then applies as if the arbitration were in pursuance of an arbitration agreement under Section 7 of that Act. Part I is thereby carried into that reference, and with it Section 9. The statutory scheme for those references is set out in the note on the MSMED Act Facilitation Council.

Where Section 9 fits in a recovery strategy

Section 9 is not a recovery mechanism; it is a preservation mechanism that keeps a recovery meaningful. Where the relationship is contractual and carries an arbitration clause, it is usually the fastest route to protecting assets while the reference is being constituted. Where the debt is secured bank finance, the statutory routes discussed in the guide to debt recovery in India operate on a different footing, and institutions structuring panel work across arbitral and tribunal matters will find the documentation expectations set out for banks, NBFCs and ARCs.

For the vocabulary used above — arbitral tribunal, seat, interim measure, receiver — see the glossary of Indian legal terms. Advisory work on contract and dispute-resolution clauses is described under legal advisory.

This article is general information on the law as it stands and is not legal advice; whether Section 9 is available in a given matter, and what relief is appropriate, depends on the arbitration agreement and the facts of the case. Queries may be directed through the contact page.