Arbitration matter
Querist :
Anonymous
(Querist) 05 December 2009
This query is : Resolved
Dear All,
Can we make an application u/s 9 of Arbitration and Conciliation Act 1996 before the High Court, as the arbitration proceedings are already going on before the Arbitral Tribunal?
Sushil Bhatt
H. S. Thukral
(Expert) 05 December 2009
Depends on what kind of interim measures are required. If it is a case of providing appropriate security etc., then an application can be moved before the arbitrator, under section 17 of the ACA. The Arbitrator however does not have power to implement its own orders and therefore in some cases section 9 has to be resorted to.
prakash vathore
(Expert) 05 December 2009
i agree with mr. harbhajan singh thukral.
Vineet
(Expert) 05 December 2009
An application u/s 9 can very well be made before District Judge having civil jurisdiction during the pendancy of arbitration proceedings. Various High Courts incl Allahabad High Court (Payal Enterprises) and AP High Court (Mahendra Saraf) have held that high court is not a court for the purposes of section 9 as they do not emjoy original civil jurisdiction in Arbitration matters.
Procceding u/s 9 is always better than interim order u/s 17 as the later is not enforceable. This has been observed by none other than Supreme Cour.
H. S. Thukral
(Expert) 06 December 2009
As I said earlier, the nature of interim measures should determine the jurisdiction in the matter. In case of a dispute between a builder and contractor,during arbitration proceedings, a question as to the quantum of work performed by the contractor arises, the arbitral tribunal shall be proper forum under section 17. It will not be justified for a party to rush to the court to appoint a local commissioner to take measurement of work. The provisions under section 17, even on strong recommednation of their removal, survived, becasue in some matters, it was more expedient for an Arbitral Tribunal to order such measures.
