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

Most viewed this month

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...

Flat owner without legal title has consumer rights

In a significant judgment, the South Mumbai Consumer Forum has held that a flat owner legally occupying the flat would be a consumer, even if his title to the flat might be in dispute before a competent court. Thurlow owned a flat in a co-operative society. Appuswami was residing with him. In 1976, Appuswami got married in the same flat, and his wife started residing in the same flat. They had three children, born and brought up in the same flat. After Thurlow expired in 2004, Appuswami approached the High Court for inheritance to Thurlow's estate but expired while the matter was pending. His wife and children were brought on record. Subsequently, the society intervened, contending Appuswami did not have any right to the flat and it should be handed over to the Society. The Appuswami family continued to reside in the flat, and even pay the society's outgoings and maintenance charges. Later, the society stopped collecting maintenance charges from all members, as it earned...

NCLT - Mere admission of receipt of money does not qualify as a financial debt

Cause Title : Meghna Devang Juthani Vs Ambe Securities Private Limited, National Company Law Tribunal, Mumbai, CP (IB) No. 974/MB-VI/2020 Date of Judgment/Order : 18.12.2023 Corum : Hon’ble Shri K. R. Saji Kumar, Member (Judicial) Hon’ble Shri Sanjiv Dutt, Member (Technical) Citied:  Carnoustie Management India Pvt. Ltd. Vs. CBS International Projects Private Limited, NCLT Swiss Ribbons Pvt. Ltd. & Anr vs. Union of India & Ors. (2019) Sanjay Kewalramani vs Sunil Parmanand Kewalramani & Ors. (2018) Pawan Kumar vs. Utsav Securities Pvt Ltd 2021 Background Application was filed under section 7 of the Insolvency and Bankruptcy Code, 2016 alleging loan of Rs, 1.70 cr is due. The Applicate identified herself as the widow and heir of the lender but could not produce any documents proving financial contract between her Late husband and the CD but claimed that the CD has accepted that money was received from her husband. The applicant subs...