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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.

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