Section 9 Interim Relief Before and During Arbitration

What can a court order under section 9?

Section 9(1)(ii) lists the measures. The court can order the preservation, interim custody or sale of goods that are the subject matter of the arbitration; secure the amount in dispute; order the detention, preservation or inspection of property or things; grant an interim injunction or appoint a receiver; and grant any other interim measure of protection that appears just and convenient. Section 9(1)(i) also allows appointment of a guardian for a minor or a person of unsound mind for the purposes of the arbitration.

In everyday commercial disputes, the orders sought most often are: a direction to the respondent to deposit or secure the amount claimed, by cash deposit, bank guarantee or an undertaking not to sell a named property; an injunction restraining the sale or encumbrance of specific assets; an order preserving goods, machinery or records; an order restraining invocation or encashment of a bank guarantee; and an injunction enforcing a negative covenant such as a non-compete or confidentiality clause.

The court has the same power to make these orders as it has in a suit before it, and it applies broadly the same principles. What it will not do is decide the dispute. A section 9 court protects the position so that the eventual award is not worthless; the merits stay with the tribunal.

Can you apply under section 9 before starting arbitration?

Yes. Section 9 is available 'before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced'. You do not have to send a notice invoking arbitration first. In Sundaram Finance Ltd v NEPC India Ltd (1999), the Supreme Court held that a party can apply before arbitration commences, provided it shows a clear intention to take the dispute to arbitration.

There is a condition attached. Under section 9(2), where the court grants an interim measure before the arbitral proceedings begin, the arbitral proceedings must commence within 90 days from the date of the order, or within such further time as the court allows. Commencement means the respondent receives a notice invoking arbitration under section 21. If the 90 days pass without that notice, the respondent can ask the court to vacate the order, and courts generally do.

In practice, the safest course is to send the notice invoking arbitration on the same day the section 9 application is filed, or immediately after the first order. That removes any argument that you were using the court to get an injunction with no intention of arbitrating.

Section 9 or section 17: court or tribunal?

Once the arbitral tribunal is constituted, section 9(3) says the court shall not entertain a section 9 application unless circumstances exist which may not render the remedy under section 17 efficacious. Since the 2015 amendment, the tribunal under section 17 has the same powers as the court to grant interim measures, and its orders are enforceable as if they were orders of the court under section 17(2). The policy is clear: once there is a tribunal, interim relief should come from it.

The word 'entertain' has been read narrowly. In Arcelor Mittal Nippon Steel India Ltd v Essar Bulk Terminal Ltd (2021), the Supreme Court held that if the court has already taken up the application and applied its mind before the tribunal was constituted, it can go on to decide it. Section 9(3) bars a fresh consideration, not one already well under way.

When is section 17 not efficacious? Typical cases are where the order must bind a third party who is not before the tribunal, where the tribunal has been constituted but cannot sit urgently, where the arbitrator has resigned and a substitute is awaited, or where the relief must be given without notice to prevent assets being moved. If none of these applies, apply to the tribunal; a court will often send you there anyway.

Court, tribunal or emergency arbitrator: which to approach

The forum depends mostly on the stage the dispute has reached and whether your clause adopts institutional rules.

Which court do you file in, in Delhi NCR?

The application goes to the 'Court' as defined in section 2(1)(e): the principal civil court of original jurisdiction, or the High Court where it has ordinary original civil jurisdiction. Where the seat is fixed, the courts at the seat have exclusive supervisory jurisdiction, as held in BGS SGS Soma JV v NHPC Ltd (2019). So for a New Delhi seat you file in Delhi, wherever the assets are.

Within Delhi, the value of the dispute decides the court. The Delhi High Court has original civil jurisdiction above ₹2 crore, and arbitration applications in commercial disputes of that value go to its Commercial Division. Below that, commercial disputes of ₹3 lakh and above go to the commercial courts in the district complexes, such as those at Saket, Tis Hazari, Patiala House, Karkardooma, Rohini and Dwarka. Our page on commercial courts in Delhi explains how those courts are organised. For a Noida or Ghaziabad seat, the commercial court in the district concerned hears the application.

A section 9 application is not a suit, so the pre-institution mediation requirement of section 12A of the Commercial Courts Act does not apply to it. That is one reason section 9 is often the first step in an urgent commercial dispute: it reaches a judge quickly, while a suit would first need mediation unless urgent relief is pleaded. Our post on pre-institution mediation in commercial suits covers that requirement.

What does the court need to see before granting interim relief?

The familiar three tests apply: a prima facie case, a balance of convenience in your favour, and irreparable harm if relief is refused. Courts have said that section 9 is not strictly bound by the technical rules of the Code of Civil Procedure, but those rules and the principles behind them guide the discretion. The applicant must also show that the dispute is covered by an arbitration agreement and that it intends to arbitrate.

Where you ask the court to secure the amount in dispute, the court looks for something more than a strong money claim. It wants material showing that the respondent is likely to defeat the award: that it is selling or mortgaging assets, moving money out, winding down operations, or has stopped responding while admitting the debt. These are the ideas behind attachment before judgment under Order 38 rule 5, and while section 9 is not confined by that rule, a bare plea that the respondent owes money and might not pay is rarely enough.

In section 9 matters that come to Advocate B.K. Singh, the question the judge asks first is usually why the applicant cannot wait for the tribunal. The applications that succeed answer it with documents: a sale listing for the respondent's property, a registry search showing a fresh mortgage, a letter admitting the dues, or bank statements showing accounts being emptied. Affidavits full of apprehension without such material tend to get notice issued and nothing more.

Can you stop a bank guarantee being encashed?

Rarely. An unconditional bank guarantee is an independent contract between the bank and the beneficiary, and the bank must pay on demand according to its terms, whatever the dispute between the contracting parties. The Supreme Court has held in a consistent line of cases, including U.P. State Sugar Corporation v Sumac International Ltd (1997), that courts should not injunct invocation except in two narrow situations: fraud of an egregious nature of which the bank has notice, or special equities where encashment would cause irretrievable injustice.

Arguments that the beneficiary is not entitled to the money under the main contract, that the work was completed, or that the delay was the beneficiary's own fault, do not by themselves meet this test. Those are disputes for the arbitration. Courts do look closely at whether the invocation complies with the terms of the guarantee itself, for example whether it was made before expiry, by the right person, in the form the guarantee requires. A conditional guarantee, where payment depends on stated conditions, is treated differently.

If you expect a guarantee to be invoked, move fast and read it carefully. Many applications fail because the guarantee has already been paid out by the time the matter is listed, or because the applicant attacked the merits of the invocation instead of its form or a genuine case of fraud.

Can a court stop the other side from terminating the contract?

Generally not, where the contract is determinable. Section 14(d) of the Specific Relief Act 1963 says a contract which is in its nature determinable cannot be specifically enforced, and courts do not grant injunctions that would in effect enforce it. Distributorships, franchises, agencies and service contracts that either side can end on notice usually fall in this category. If the termination is wrongful, the remedy is damages in the arbitration, not an order keeping the contract alive.

Injunctions are more readily granted to enforce negative covenants during the contract, such as confidentiality, or to protect intellectual property and confidential information after it ends. Restraints on trade after termination face section 27 of the Indian Contract Act 1872, which voids agreements in restraint of trade, so a post-termination non-compete is difficult to enforce, though protection of confidential information is not.

In infrastructure contracts, section 20A of the Specific Relief Act, added in 2018, restricts injunctions that would impede or delay the progress or completion of an infrastructure project listed in its Schedule, and courts take a similar approach in section 9 applications. A contractor seeking to halt such a project will face a high bar.

Steps in a section 9 application

In a typical urgent case, the process runs in this order.

1. Confirm the clause and the seat

   Read the arbitration clause, note the seat and the value of the claim, and decide which court has jurisdiction. Check whether the clause adopts institutional rules with an emergency arbitrator.

2. Gather evidence of urgency

   Collect documents showing the threat: property listings, registry searches, letters, emails, bank statements, or notices of invocation. This evidence matters more than the drafting.

3. Send or prepare the notice invoking arbitration

   Serve a section 21 notice on the day of filing, or be ready to serve it immediately after the first order, so the 90-day requirement under section 9(2) is met.

4. File the application with an affidavit

   Plead the clause, the dispute in brief, the prima facie case, the specific risk, and the precise relief sought. If seeking an ex parte order, explain why notice would defeat the purpose.

5. Serve advance notice where required

   Where an ex parte order is sought, courts expect compliance with the safeguards of Order 39 rule 3, including sending the papers to the other side once the order is made. Where no ex parte order is needed, serve an advance copy.

6. First hearing

   The court may grant an ad interim order, record an undertaking from the respondent not to sell or encumber, or issue notice. Undertakings given in court are enforceable and are often the practical outcome.

7. Final disposal and transfer to the tribunal

   Once pleadings are complete, the court decides the application. If the tribunal is constituted meanwhile, the court may decide what it has already heard, or leave the parties to apply under section 17.

Documents to file with a section 9 application

Emergency arbitrators and institutional rules

Many institutional rules, including those of the Delhi International Arbitration Centre and the Singapore International Arbitration Centre, allow a party to apply for an emergency arbitrator before the full tribunal is constituted. An emergency arbitrator is appointed within a short time and can grant interim measures, which remain in place until the tribunal reconsiders them.

In Amazon.com NV Investment Holdings LLC v Future Retail Ltd (2021), the Supreme Court held that an emergency arbitrator's order in an arbitration seated in India is an order under section 17(1) and enforceable under section 17(2). That gives parties with an institutional clause a real choice between a court and an emergency arbitrator at the start of a dispute.

The emergency arbitrator binds only the parties to the arbitration and cannot act ex parte in the same way a court sometimes can. Where you need an order against a third party, such as a bank holding the respondent's funds, or an order before the other side is even aware, the court under section 9 remains the more useful forum.

Interim relief after the award, and for foreign-seated arbitrations

Section 9 can be used after the award is made and before it is enforced. Since an award cannot be enforced until the three-month period for challenge under section 34 has expired, or a challenge is decided, the award holder may need protection during that window. Courts have directed respondents to secure the award amount in such cases where there is a real risk of dissipation. Once a section 34 challenge is filed, stay of the award is governed by section 36(3), under which courts usually require a deposit or security for money awards; our post on challenging an arbitral award under section 34 explains that stage, and enforcing an arbitral award as a decree covers execution.

For arbitrations seated outside India, the proviso to section 2(2) makes section 9 available in Indian courts unless the parties have agreed otherwise. If a Singapore-seated arbitration concerns assets in Delhi, the Delhi courts can be asked to secure them. The award, when made, is enforced under Part II, as our post on enforcing foreign arbitral awards in India explains.

In both situations the same principles apply: a real threat to the effectiveness of the award, shown by evidence, and relief no wider than needed to meet that threat.

Appeals against section 9 orders, and what happens to the order later

An order granting or refusing a section 9 measure is appealable under section 37(1)(b). In commercial disputes, section 13 of the Commercial Courts Act gives 60 days for the appeal, which in Delhi goes to the Commercial Appellate Division of the High Court, whether the order was passed by a district commercial court or by a single judge of the High Court's Commercial Division. Orders of the tribunal under section 17 are appealable under section 37(2)(b).

Appellate courts interfere with interim orders only if the discretion was exercised arbitrarily, perversely or contrary to settled principles. They do not rehear the application because they would have weighed the facts differently. A party that lost at the section 9 stage usually does better by renewing the request before the tribunal under section 17 on fresh material than by appealing.

An interim order made by the court does not end automatically when the tribunal is constituted. It usually continues until the court or the tribunal modifies it. A respondent who wants the order changed can ask the tribunal under section 17, and courts have generally allowed the tribunal to reconsider the measure on fresh facts.

Mistakes that sink section 9 applications

• Asking for a deposit of the full claim on a bare money claim. Without evidence that the respondent is defeating the award, the court will usually decline or issue notice only.
• Missing the 90-day window. Getting an order before arbitration and then not sending the section 21 notice within 90 days invites vacation of the order.
• Filing in the wrong court. Filing where the assets are rather than at the seat, or in the High Court for a claim below its pecuniary limit.
• Going to court when the tribunal can act. Once the tribunal is constituted, the court expects you to explain why section 17 is not efficacious.
• Attacking a bank guarantee on the merits. Disputes about the underlying contract do not justify an injunction against invocation.
• Vague relief. Asking to restrain 'all assets' instead of specific properties, accounts or goods makes an order hard to grant and harder to enforce.
• Delay. Waiting weeks after learning of the threat undercuts the claim of urgency.

What to do this week if you need interim protection

• Read the arbitration clause and note the seat and any institutional rules.
• Work out the value of the claim to identify the right court.
• Collect proof of the risk: listings, registry or ROC searches, letters, bank statements.
• Read any bank guarantee in full, including its expiry date and invocation conditions.
• List the respondent's assets with precise descriptions.
• Draft the section 21 notice invoking arbitration, ready to serve on the day of filing.
• Diary 90 days from any order granted before the arbitration starts.
• If the tribunal is already in place, prepare a section 17 application instead, unless there is a clear reason it would not work.

Acting in time

Interim relief is about timing. An application filed the day a sale listing appears, with the listing attached, stands a far better chance than one filed after the sale deed is registered. Equally, a court will not freeze a business's assets just because a creditor is anxious. The skill lies in matching the relief to the evidence and asking for no more than you need.

If you need urgent protection in an arbitration, the team of Advocate B.K. Singh at B.K. Singh & Associates can read the clause and the documents and tell you which forum to approach and what the evidence supports. Send the papers through the online enquiry page, or see our page on arbitration practice in Delhi.