Interim Measures by Court (Section 9) →

Arbitration is a private mechanism, but it cannot always protect itself. A party may dissipate assets, sell disputed goods, or alter the status quo before an arbitral tribunal is even constituted — and at that fragile stage the tribunal has no power to intervene. Section 9 of the Arbitration and Conciliation Act, 1996 fills this gap by allowing a party to approach a court for interim measures of protection before, during, or even after arbitral proceedings, ensuring that the eventual award is not rendered a paper victory. This article maps the text of Section 9, the sea-change brought by the 2015 amendment, the crucial bar in Section 9(3), and the leading judgments — from Sundaram Finance to Essar House — that define its contours.

The statutory scheme of Section 9

Section 9 of the Arbitration and Conciliation Act, 1996 empowers a party to apply to a court for an interim measure of protection. The provision is deliberately broad: relief may be sought (i) before the commencement of arbitral proceedings, (ii) during the arbitral proceedings, or (iii) at any time after the making of the arbitral award but before it is enforced under Section 36. This three-fold temporal window is the defining feature of the section and distinguishes it from the broader scheme of the Act, which otherwise channels disputes away from the courts.

The categories of relief enumerated in Section 9(1) include: the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; the preservation, interim custody, or sale of any goods that are the subject-matter of the arbitration agreement; securing the amount in dispute in the arbitration; the detention, preservation, or inspection of any property or thing which is the subject-matter of the dispute, and authorising any person to enter upon land or building in the possession of a party, or to take samples, observations or experiments for obtaining full information or evidence; interim injunctions; the appointment of a receiver; and "such other interim measure of protection as may appear to the court to be just and convenient." The closing residuary clause confers a wide equitable discretion, and the section concludes by providing that the court shall have the same power for making such orders as it has for the purpose of, and in relation to, any proceedings before it.

The rationale for the provision is protective rather than adjudicatory. Arbitration can be a slow-burning process — an arbitrator must be appointed, the tribunal constituted, pleadings exchanged, and evidence led — and during that interval a recalcitrant party may dissipate the very assets or goods over which the dispute rages. Section 9 ensures that the subject-matter of the arbitration, and the fruits of any eventual award, are preserved so that the award does not become a mere paper decree. The court, in granting relief, does not pre-judge the merits of the dispute; it merely holds the position steady so that the tribunal can later decide the controversy meaningfully. This protective philosophy is the thread that runs through every judicial gloss on the section.

Who may apply: the meaning of "party"

The right under Section 9 is conferred on a "party", which Section 2(1)(h) defines as a party to an arbitration agreement. The locus to invoke Section 9 therefore flows directly from the existence of a valid arbitration agreement; a stranger to that agreement cannot seek interim protection under the section.

In Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 SCC 155, a dispute among persons claiming to be partners in a firm, the Supreme Court underscored that the qualification to apply under Section 9 is being a party to an arbitration agreement, and that this statutory right is independent of substantive enforceability questions that may arise under other statutes. The Court observed that the relief under Section 9 is a measure in aid of arbitration and must be read in harmony with the object of the Act — minimal but effective judicial support — rather than as a freestanding civil remedy. The Court cautioned that Section 9 cannot be used to obstruct or supplant the arbitral process; judicial intervention must remain supportive and not become a parallel adjudicatory track.

This locus requirement has practical bite. Because the right springs from the arbitration agreement, a person who is not a signatory to, or otherwise bound by, that agreement cannot ordinarily seek Section 9 relief, and the converse is equally true — relief cannot be sought against a stranger who has no nexus to the arbitral process, since the tribunal's eventual award could not bind such a person. The existence and validity of the arbitration agreement is thus a jurisdictional gateway, tying Section 9 firmly to the consensual foundation of arbitration. Where the very existence of the agreement is genuinely disputed, the court may make a prima facie assessment for the limited purpose of deciding whether to grant interim protection, without finally adjudicating the question, which is left to the tribunal under the principle of competence-competence.

Interim relief before arbitral proceedings: Sundaram Finance

The most distinctive aspect of Section 9 is that relief may be sought before arbitration has commenced. The leading authority is Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479, decided shortly after the 1996 Act came into force. The respondent had defaulted on a hire-purchase agreement for wind turbine generators, and the appellant sought the appointment of an advocate commissioner to take custody of the equipment under Section 9 even though no arbitrator had been appointed and no Section 21 notice issued.

The Supreme Court held that a court has jurisdiction to entertain a Section 9 application even before the commencement of arbitral proceedings, rejecting the High Court's view that the absence of pending arbitration ousted jurisdiction. The Court reasoned that the language of Section 9 expressly contemplates an application "before" the arbitral proceedings, and that to deny relief at that stage would defeat the protective purpose of the provision. However, the Court added an important safeguard: the party seeking relief must show that it intends to take the dispute to arbitration and that arbitral proceedings are manifestly contemplated, so that Section 9 is not used as a device to obtain interim relief with no genuine intention to arbitrate. This requirement of a bona fide intention to arbitrate was later given statutory form by the 2015 amendment.

The 2015 amendment: the 90-day timeline in Section 9(2)

The Arbitration and Conciliation (Amendment) Act, 2015 substantially recast Section 9 to curb its misuse and to integrate it with the tribunal's own interim powers under the Act. The pre-amendment section was relabelled as Section 9(1), and two new sub-sections were inserted.

Section 9(2) addresses the very mischief that Sundaram Finance had flagged. It provides that where a court passes an order for any interim measure of protection before the commencement of arbitral proceedings, the arbitral proceedings shall be commenced within a period of ninety days from the date of that order, or within such further time as the court may determine. The object is to prevent a party from obtaining interim relief and then sitting on it indefinitely without actually invoking arbitration. The ninety-day clock thus converts the judicially-imposed condition of a genuine intention to arbitrate into a hard statutory deadline, although the court retains discretion to extend the period.

The phrase "commencement of arbitral proceedings" must be read with Section 21, under which 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. The ninety-day period in Section 9(2) is therefore measured against the issuance and receipt of such a notice. The consequence of a failure to commence arbitration within the stipulated period is not spelt out in the section as an automatic vacation of the interim order, and courts have generally treated the requirement as directory in the sense that the court may extend time; but a party that secures pre-arbitration relief and then fails to move the dispute forward exposes the interim order to being recalled, since the foundation for protective relief — an impending arbitration — falls away.

The Section 9(3) bar: court versus tribunal

The most consequential addition by the 2015 amendment is Section 9(3). It provides that once the arbitral tribunal has been constituted, the court shall not entertain an application under Section 9(1) unless it finds that circumstances exist which may not render the remedy provided under Section 17 efficacious. Section 9(3) reflects the legislative policy that, after the 2015 amendment elevated the tribunal's interim powers under Section 17 to near-parity with the court's, parties should ordinarily seek interim relief from the tribunal itself once it exists. The court's role is thus relegated to a residual one, available only where the Section 17 remedy would be ineffective — for example, where the order must bind a third party over whom the tribunal has no coercive jurisdiction.

The interplay between Section 9 and Section 17 is central here: Section 17, as amended, makes tribunal orders enforceable as orders of the court under the Code of Civil Procedure, 1908, removing the historical weakness that earlier rendered tribunal interim orders toothless. With that lacuna cured, Section 9(3) channels parties toward the tribunal once it is in place.

It is important to note what Section 9(3) does not do. It does not divest the court of jurisdiction altogether; it merely restrains the court from "entertaining" a fresh application once the tribunal is constituted, and even that restraint yields where the Section 17 remedy would be inefficacious. The classic illustration of inefficacy is an order required against a third party — a bank, a surety, or a holder of disputed property who is not a party to the arbitration — because the tribunal's coercive reach is confined to the parties before it, whereas a court order can bind the world. Section 9(3) thus institutionalises a sensible division of labour: routine inter-party interim relief goes to the tribunal, while the court is reserved for situations that exceed the tribunal's practical or jurisdictional capacity.

The meaning of "entertain": Arcelor Mittal v. Essar Bulk

The pivotal interpretive question under Section 9(3) is what it means for a court to "entertain" an application. This was settled by the Supreme Court in Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 SCC 712 (decided 14 September 2021). Both parties had filed Section 9 applications before the Commercial Court at Surat, which heard the matter and reserved it for orders; while judgment was reserved, the arbitral tribunal was constituted.

The Court held that the word "entertain" in Section 9(3) means "to consider by application of mind to the issues raised" — the court entertains a matter when it takes it up for consideration, and that consideration may continue until the pronouncement of judgment. Consequently, where a Section 9 application has already been entertained and heard by the court before the tribunal's constitution, the bar in Section 9(3) does not require the court to refer the parties back to the tribunal; the court may proceed to adjudicate. The Court further clarified that even where an application has been entertained before constitution of the tribunal, the court retains a discretion to assess whether the Section 17 remedy is efficacious, but it is not obliged to relegate the parties to the tribunal once it has applied its mind. The decision strikes a workable balance: it gives effect to the legislative intent behind Section 9(3) without nullifying part-heard proceedings.

Principles governing the grant of relief

While Section 9 confers a special statutory power, the court does not exercise it in a vacuum. The well-known triad of injunction principles — a prima facie case, the balance of convenience, and irreparable injury — remains the touchstone. In Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125, the Supreme Court held that the power under Section 9 is not entirely independent of, and is to be exercised broadly in accordance with, the established principles governing the grant of interim relief, including those underlying Order 39 of the Code of Civil Procedure. The Court declined to grant the injunction sought, holding that an interim order under Section 9 cannot be used to enforce a contract that is otherwise determinable and not specifically enforceable.

This was reinforced in Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corporation, (2007) 6 SCC 798, where the Court observed that when a power is conferred by a special statute and that power is to be exercised by a court, the general rules of procedure of that court — including the principles underlying Order 39 of the CPC — would normally apply. The question whether Section 9 confers a power wholly untrammelled by the CPC was, however, left open for an appropriate case, signalling that the relationship between the special power and ordinary procedural law was not finally settled by these decisions.

Relaxing the rigours of the CPC: Essar House

The tension between Section 9 and the strict procedural requirements of the CPC was substantially resolved in Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited, (2022) 14 SCC 700 (decided 14 September 2022). The dispute concerned a Section 9 application to secure a sum claimed to have been wrongly retained, in the nature of an attachment before judgment.

The Supreme Court held that a court exercising power under Section 9 is not strictly bound by every procedural provision of the CPC, in particular the rigours of Order 38 Rule 5 (attachment before judgment). The Court ruled that where a strong prima facie case is made out and the balance of convenience favours interim relief, the court should not withhold relief merely because the application does not contain the specific averments required for attachment under Order 38 Rule 5. Critically, the Court held that proof of an actual attempt to remove or dispose of property with intent to defeat an eventual award is not a precondition; a strong possibility of diminution of assets is sufficient to secure the amount in dispute. Essar House thus confirms that Section 9 is a flexible, equity-driven jurisdiction in which substance prevails over procedural technicality, while still requiring a genuine evidentiary foundation.

Section 9 and foreign-seated arbitrations

Whether Section 9, which sits in Part I of the Act, applies to arbitrations seated outside India has been one of the most contested questions in Indian arbitration law. In Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432, the Supreme Court held that Part I — including Section 9 — applied even to international commercial arbitrations seated outside India unless the parties expressly or impliedly excluded it, thereby permitting Indian courts to grant interim relief in foreign-seated arbitrations.

This position was overruled in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 (BALCO), where a Constitution Bench held that Part I applies only where the seat of arbitration is in India; for foreign-seated arbitrations, Section 9 was unavailable. BALCO was applied prospectively, to arbitration agreements executed after 6 September 2012. The legislature responded through the 2015 amendment, which inserted a proviso to Section 2(2) extending Sections 9, 27, and 37(1)(a) to international commercial arbitrations seated outside India, unless the parties agree to the contrary. The net effect is that, subject to party autonomy, a foreign party may once again approach an Indian court under Section 9 to preserve assets or property located in India in aid of a foreign-seated arbitration.

Two refinements deserve attention. First, the proviso to Section 2(2) operates only in respect of an "international commercial arbitration" as defined in Section 2(1)(f), and it applies notwithstanding the foreign seat unless the parties have agreed to the contrary — so a carefully drafted clause excluding Part I will oust Section 9 even for India-located assets. Second, the proviso is widely understood to apply to arbitration agreements entered into after the 2015 amendment came into force, mirroring the prospective approach taken in BALCO, so the date of the agreement remains analytically relevant. The practical upshot for a foreign claimant is significant: where an Indian counterparty holds assets in India that might be spirited away before a foreign award can be enforced, Section 9 offers a domestic protective remedy that the foreign tribunal, sitting abroad, cannot itself provide against Indian assets.

Appeals against Section 9 orders

An order granting or refusing to grant any interim measure under Section 9 is appealable. Section 37(1)(b) of the Act expressly provides for an appeal against an order under Section 9, making it one of the limited categories of arbitration-related orders against which a statutory appeal lies. There is, however, no further appeal from an appellate order under Section 37, save to the Supreme Court under Article 136 of the Constitution; Section 37(3) bars a second appeal while preserving the right to approach the Supreme Court.

Because Section 9 orders are appealable and frequently determine the practical fate of the dispute — by securing assets that may otherwise vanish — courts have emphasised that such applications must be decided on settled equitable principles and supported by reasons, so that meaningful appellate scrutiny under Section 37 is possible.

Section 9 versus Section 17: a comparative view

Section 9 (court) and Section 17 (arbitral tribunal) together form the interim-relief architecture of the Act, and the 2015 amendment was designed to align them. Both provisions now list substantially identical categories of relief — preservation, interim custody or sale of goods, securing the amount in dispute, interim injunctions, appointment of a receiver, and inspection of property. After the amendment, Section 17 orders are deemed to be orders of the court and are enforceable under the CPC in the same manner as if they were court orders.

The temporal availability differs, however. Section 9 is available before, during, and after the arbitral proceedings (until enforcement of the award), whereas Section 17 operates only during the arbitral proceedings — the tribunal must exist to make an order. This temporal gap explains why Section 9 remains indispensable at the pre-constitution and post-award stages, while Section 9(3) channels relief to Section 17 during the life of the tribunal. The relationship is therefore complementary rather than competitive: the court fills the gaps the tribunal cannot reach.

Enforcement and the deterrence of non-compliance

An interim order is only as good as its enforceability. A Section 9 order, being an order of a court, is enforceable like any other order of that court, and its breach can attract the court's contempt jurisdiction. The greater historical difficulty lay with the tribunal's orders under Section 17, which the 2015 amendment cured by deeming them enforceable as court orders.

The deterrent dimension was illustrated in Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 SCC 119, where the Supreme Court addressed non-compliance with a tribunal's interim order. The Court held that under the pre-2015 regime the tribunal could make a representation to the court under Section 27(5) so that contempt proceedings could follow, and noted that the 2015 amendment had rendered Section 17 orders directly enforceable. Although Alka Chandewar concerns Section 17, it is significant for Section 9 because it confirms the legislative direction of travel: interim relief in arbitration, whether granted by court or tribunal, must carry real coercive force and cannot be merely symbolic.

Practical and exam takeaways

For aspirants, Section 9 is best remembered through a small set of anchors. First, the temporal triad: relief lies before, during, and after arbitration (until enforcement). Second, the locus requirement: only a party to an arbitration agreement may apply (Firm Ashok Traders). Third, the pre-commencement jurisdiction confirmed in Sundaram Finance, now disciplined by the ninety-day rule in Section 9(2). Fourth, the Section 9(3) bar after constitution of the tribunal, and the meaning of "entertain" laid down in Arcelor Mittal v. Essar Bulk. Fifth, the relaxation of CPC rigours in Essar House, balanced against the equitable principles affirmed in Adhunik Steels and Arvind Constructions.

Finally, remember the cross-border dimension: from Bhatia International through BALCO to the 2015 proviso to Section 2(2), the availability of Section 9 in aid of foreign-seated arbitrations has swung back and forth, and now rests on party autonomy. Reading Section 9 alongside the tribunal's interim powers under Section 17 gives the complete picture of interim protection in Indian arbitration.

Frequently asked questions

At what stages can a party seek interim measures under Section 9?

A party may apply under Section 9 at three stages: before the commencement of arbitral proceedings, during the arbitral proceedings, and after the making of the arbitral award but before it is enforced under Section 36. The pre-commencement jurisdiction was confirmed in Sundaram Finance Ltd. v. NEPC India Ltd.

What is the effect of Section 9(2) inserted by the 2015 amendment?

Section 9(2) provides that where a court grants an interim measure before the commencement of arbitral proceedings, the arbitration must be commenced within ninety days of that order (or within such further time as the court allows). It prevents a party from obtaining interim relief without genuinely intending to arbitrate.

Does Section 9(3) prevent a party from approaching the court after the tribunal is constituted?

Generally yes. Section 9(3) provides that once the arbitral tribunal is constituted, the court shall not entertain a Section 9 application unless it finds that the remedy under Section 17 would not be efficacious. The aim is to channel interim relief to the tribunal itself once it exists.

What did Arcelor Mittal v. Essar Bulk decide about the word "entertain"?

In Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd. (2022), the Supreme Court held that "entertain" in Section 9(3) means to consider by application of mind. Where the court has already taken up and heard a Section 9 application before the tribunal's constitution, it may proceed to decide it despite the Section 9(3) bar.

Must a Section 9 application satisfy the strict requirements of Order 38 Rule 5 CPC?

No. In Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India Ltd. (2022), the Supreme Court held that a court under Section 9 is not strictly bound by Order 38 Rule 5 CPC. A strong prima facie case and a real possibility of diminution of assets suffice; proof of an actual attempt to dispose of property is not required.

Can Section 9 be invoked for arbitrations seated outside India?

After BALCO (2012), Part I (including Section 9) did not apply to foreign-seated arbitrations. The 2015 amendment inserted a proviso to Section 2(2) extending Sections 9, 27 and 37(1)(a) to international commercial arbitrations seated abroad, unless the parties agree otherwise. So, subject to party autonomy, Section 9 is again available in aid of foreign-seated arbitrations.