Skip to main content

Seeking Interim Measure Of Protection Maintainable Even After Passing Of Arbitration Award But Before It Is Enforced

In M.ASHRAF vs KASIM.V.K, the question before the Kerala High Court was whether seeking an interim measure of protection, maintainable before the Court, after passing of the award by the Arbitral Tribunal but before it is enforced.

The Court held that three sections of the Arbitration Act guides this matter. Section 9(1)(ii) provides that a party may at any time before the award is enforced, apply to a Court, for an interim measure of protection while Section 9(3) states that court can entertain an application under sub-section (1), only if remedy provided under Section 17 is not available and Section 17(1)(ii) provides that a party may at any time before the award is enforced, apply to the arbitral tribunal, for an interim measure of protection.

Holding that such an application is maintainable, the court held that the jurisdiction of the Court to grant interim relief does not automatically get barred on constitution of the Arbitral Tribunal.

Exercise of power by the Court under Section 9(1) of the Act is contemplated at three stages : (1) before commencement  of arbitral proceedings (2) during arbitral proceedings and (3) at any time after passing of the arbitral award but before it is enforced.

When an application under Section 9(1) of the Act is made by a party at the third stage, the Court shall bear in mind that it is a stage where except in cases provided under Section 33 of the Act, the Arbitral Tribunal would have then ceased to function. The unsuccessful party may then take hasty steps to alienate or dispose of the property which was the subject matter of dispute. The successful party may then approach the Court with an application under Section 9(1) of the Act for granting interim relief. In such circumstances, it would not be proper for the Court to reject the application merely on the ground that he has got efficacious remedy under Section 17 of the Act. The Court has to adopt a liberal approach in such circumstances. The Arbitral Tribunal may not be then actually functioning. It may also be possible that the Arbitrator is not readily available. When an application at the third, the Court has to consider all these circumstances.

Comments

Post a Comment

Most viewed this month

Court approached in the early stages of arbitration will prevail in all other subsequent proceedings

In National Highway Authority of India v. Hindustan Steelworks Construction Limited, the Hon'ble Delhi High Court opined that once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.
Post a Comment
Read more

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

No Rebate For Stamp Duty Paid In Another State - Bombay HC

A three judge bench of the Hon'ble Bombay High Court (Bombay HC) in a recent judgment in the matter of Chief Controlling Revenue Authority, Maharashtra State, Pune and Superintendent of Stamp (Headquarters), Mumbai v Reliance Industries Limited, Mumbai and Reliance Petroleum Limited, Gujarat1 has held that orders in case of a scheme of arrangement under Section 391 to 394 of the Companies Act, 1956 (Act) involving different High Courts in multiple states, are separate instruments in themselves. Accordingly, stamp duty would be payable on all the orders (and consequently, all the states) without the benefit of remission, rebate or set-off.
Post a Comment
Read more