Section 9 as originally enacted, has been renumbered as Section 9(1). 2015 Amendment Act has also incorporated Sub-Section (2) and Sub-Section (3). Section 9(1), as amended, enables a party to an Arbitration Agreement to apply to a Court for interim measures of protection before or during Arbitral Proceedings, or at any time after an Arbitral Award is made and published, but before Arbitral Award is enforced in accordance with Section 36. Sub-Section (3) of Section 9 has two limbs – first limb prohibits a Sub-Section (1)-Application from being entertained once an Arbitral Tribunal has been constituted; second limb carves out an exception if Court finds circumstances, which may not render remedy provided under Section 17 efficacious. Once an Arbitral Tribunal is constituted, Court cannot take up a Section 9-Application for consideration, unless remedy under Section 17 is inefficacious.
The bar of Section 9(3) would not operate, once an Section 9-Application has been entertained and taken up for consideration, as in the instant case, where hearing has been concluded. Even after an Arbitral Tribunal is constituted, there may be myriads of reasons why Arbitral Tribunal may not be an efficacious alternative to Section 9(1). This could even be by reason of temporary unavailability of one Arbitrator of an Arbitral Tribunal.
However, even if a Section 9-Application had been entertained before constitution of Arbitral Tribunal, Court always has discretion to direct parties to approach Arbitral Tribunal, particularly when there has been a long time gap between hearings or hearing has just commenced and is likely to consume a lot of time.
– Hon’ble Justice Indira Banerjee, Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., [Civil Appeal No. 5700 of 2021].