How to File a Section 9 Interim Relief Application in Mumbai

Section 9 of the Arbitration and Conciliation Act, 1996 lets a party to an arbitration agreement apply to the Bombay High Court for interim measures of protection, such as an injunction or the appointment of a receiver, before an arbitral tribunal is constituted, while proceedings are pending, or after an award is made but before enforcement. Once a tribunal exists, section 9(3) ordinarily bars a fresh application unless the tribunal's own power under section 17 would not be efficacious. The application is filed as an arbitration petition on the Original Side, supported by a verifying affidavit, and must show a prima facie case, balance of convenience, and irreparable harm.

What Interim Measures Can Section 9 Actually Grant?

Section 9(1) of the Arbitration and Conciliation Act, 1996 (the Act) allows a party to an arbitration agreement to apply to a court for interim measures of protection at three distinct points: before the commencement of arbitral proceedings, during the arbitral proceedings, or after the making of the arbitral award but before it is enforced under Section 36. The reliefs available include the appointment of a guardian for a minor or person of unsound mind, preservation, interim custody or sale of goods that are the subject matter of the dispute, securing the amount in dispute, detention or inspection of property, interim injunction, or the appointment of a receiver. The list in Section 9(1)(ii) is illustrative rather than exhaustive: clause (e) permits "such other interim measure of protection as may appear to the Court to be just and convenient," a residual power regularly invoked to seek relief not expressly enumerated.

The "Court" That Has Jurisdiction

For domestic arbitrations, the relevant court is defined in Section 2(1)(e) of the Act as the principal civil court of original jurisdiction in a district, including the High Court in the exercise of its ordinary original civil jurisdiction. In Mumbai, this means the Bombay High Court's Original Side has jurisdiction over Section 9 applications where the value of the subject matter or the location of the cause of action brings the dispute within its ordinary original civil jurisdiction. Where the arbitration agreement designates a seat within Mumbai, or the cause of action substantially arises within Mumbai's territorial limits, the Bombay High Court is the competent forum regardless of where the respondent resides or carries on business. That follows from Section 42 of the Act, which fixes exclusive jurisdiction in the court where the first application under Part I is made.

Filing Before the Tribunal Is Constituted

Before an arbitral tribunal exists, Section 9 is the only avenue for interim protection. A party need not wait for the tribunal to be appointed, and filing a Section 9 application does not waive the right to arbitrate. Section 9(2) requires that if the court passes an interim order before the commencement of arbitral proceedings, the applicant must commence arbitral proceedings within ninety days of the order, or such further time as the court may fix. Failure to do so does not automatically vacate the order. It is, however, a real procedural lapse that the opposing party can and does raise, and courts have treated unexplained delay as a factor weighing against continuation of relief.

What Must an Applicant Show to Obtain Relief at This Stage?

An applicant must demonstrate the three classical ingredients for interim relief: a prima facie case on the merits of the underlying dispute, that the balance of convenience favours the grant of relief, and that irreparable harm would result if relief is withheld. The Act does not import the Code of Civil Procedure, 1908 wholesale into Section 9 proceedings. But courts have repeatedly held that the underlying principles governing interim injunctions, such as those found in Order XXXIX of the CPC, inform how the court exercises its discretion, even though rigid procedural technicalities under the CPC cannot defeat substantive relief.

Filing After the Tribunal Is Constituted: The Section 9(3) Bar

Once an arbitral tribunal has been constituted, Section 9(3) restricts the court's power to entertain a fresh application. The court "shall not entertain" an application under Section 9(1) unless it finds that circumstances exist which may not render the remedy under Section 17 efficacious. This provision was inserted by the Arbitration and Conciliation (Amendment) Act, 2015 to reduce court involvement once a tribunal is in place and able to grant equivalent relief itself.

The ArcelorMittal Clarification on What "Entertain" Means

The relationship between Section 9 and Section 17 was a matter of real uncertainty until the Supreme Court's decision in ArcelorMittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd. [(2022) 1 SCC 712]. The Court held that Section 9(3) has two limbs: a bar on entertaining a Section 9 application once a tribunal is constituted, and an exception where the remedy under Section 17 would not be efficacious. The Court clarified that "entertain" means to consider the issues raised by application of mind, and that once a court has taken up an application for consideration (meaning it has begun applying its mind to the merits) the bar in Section 9(3) does not operate even if the tribunal is later constituted before the order is pronounced. The Court also confirmed that a tribunal's power under Section 17 is now, as a matter of law, as efficacious as the court's power under Section 9(1), since an order under Section 17 is enforceable in the same manner as an order of court. The practical result: after the tribunal is constituted, a fresh Section 9 application will ordinarily fail unless the applicant can show a specific impediment, such as the temporary unavailability of an arbitrator, urgency the tribunal cannot address in time, or relief against a non-signatory that the tribunal has no power to grant.

Stage	Forum	Governing Provision	Threshold Applied
Before tribunal is constituted	Bombay High Court (Section 9)	Section 9(1)	Prima facie case, balance of convenience, irreparable harm
During arbitral proceedings, tribunal constituted	Arbitral tribunal, ordinarily	Section 17	Same three ingredients, applied by the tribunal
Application already "entertained" before constitution	Bombay High Court retains seisin	Section 9(3), first limb inapplicable per ArcelorMittal	Court may proceed to decide without remitting to tribunal
After award, before enforcement	Bombay High Court (Section 9)	Section 9(1)	Protecting the fruits of the award pending enforcement under Section 36

Preparing and Filing the Application: Practical Requirements

What Documents Must Accompany a Section 9 Application?

A Section 9 application before the Bombay High Court is typically filed as an arbitration petition on the Original Side, supported by a verifying affidavit, the arbitration agreement or clause relied upon, correspondence evidencing invocation of arbitration where applicable, and documents establishing the urgency or risk sought to be addressed, such as evidence of an imminent sale, dissipation of assets, or invocation of a bank guarantee. Where the applicant has already issued a notice invoking arbitration under Section 21, that notice and any response should be annexed. It is often the clearest evidence that arbitral proceedings are genuinely contemplated, not merely threatened.

Court Fees and the Original Side Rules

Court fees for a Section 9 petition before the Bombay High Court are computed under the Bombay Court Fees Act, 1959, generally with reference to the relief claimed rather than the full value of the underlying claim, since Section 9 relief is interim and ancillary. The petition must also comply with the Bombay High Court (Original Side) Rules governing presentation, including the requirement of a vakalatnama, an index, and paper book formatting for the Commercial Division where the claim falls within the pecuniary jurisdiction fixed under the Commercial Courts Act, 2015. Where the specified value of the dispute is above the threshold prescribed for commercial disputes, the application is placed before the Commercial Division of the Bombay High Court rather than the ordinary Original Side roster. That affects both the bench before which it is listed and the case management timelines that apply.

Notice to the Opposing Party

Section 9 applications are ordinarily filed on notice to the opposing party, though ad-interim relief may be granted ex parte in cases of genuine urgency, pending service and a full hearing. Courts scrutinise ex parte applications closely. An applicant who delays approaching the court after becoming aware of the threat to its interests risks having urgency, and therefore ex parte relief, denied on the ground of laches.

How Section 9 Interacts With the Seat of Arbitration

Where the parties' contract does not expressly identify a seat, questions can arise over whether the Bombay High Court has supervisory jurisdiction at all, since jurisdiction for Section 9 purposes tracks the seat of arbitration for domestic arbitrations under Part I. Establishing the seat of arbitration is therefore often the first hurdle in a Section 9 petition where the arbitration clause is loosely drafted, and a respondent will frequently raise a seat objection as a preliminary defence to resist an interim order. Where the seat is clearly Mumbai, or the cause of action substantially arose within the court's territorial limits, this objection is easier to overcome.

Interim Relief After the Award: A Narrower Purpose

Section 9(1)(ii) also permits an application after an award is made but before it is enforced under Section 36. The purpose of the relief changes at this stage. It is not to preserve the subject matter of the arbitration pending adjudication, but to protect the fruits of an award that has already been rendered, pending enforcement. Courts have granted such relief even where enforcement proceedings under Section 36 have already been initiated. A party should not be left without protection simply because it took the further step of seeking enforcement.

Frequently Asked Questions

Can a Section 9 application be filed before arbitration has even been invoked?

Yes. Section 9(1) expressly permits an application before the commencement of arbitral proceedings. The applicant must, however, commence arbitral proceedings within ninety days of the interim order, or such further time as the court permits, failing which the continuation of the order becomes vulnerable to challenge.

What happens to a Section 9 application if the tribunal is constituted while it is pending?

If the court has already begun considering the application, meaning it has applied its mind to the matter, the bar under Section 9(3) does not require the court to stop and remit the matter to the tribunal. This was clarified in ArcelorMittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd.

Is it necessary to show that the arbitral tribunal cannot grant the same relief before approaching the court after the tribunal is constituted?

Yes. Once a tribunal is constituted, Section 9(3) requires the applicant to show that the remedy under Section 17 would not be efficacious in the circumstances, such as urgency the tribunal cannot address in time or an arbitrator's temporary unavailability.

Which bench of the Bombay High Court hears Section 9 applications?

Depending on the specified value of the dispute, the application is heard either on the ordinary Original Side or by the Commercial Division constituted under the Commercial Courts Act, 2015, where the claim exceeds the specified pecuniary threshold.

Can interim relief under Section 9 be sought against a party who is not a signatory to the arbitration agreement?

This is one of the more litigated questions in Section 9 practice. Courts have granted relief against non-signatories in limited circumstances where they are closely connected to the transaction or hold assets in dispute, but such relief is treated as an exception rather than routine, and the applicant must justify why the relief cannot otherwise be obtained.

Does delay in approaching the court under Section 9 affect the outcome?

Yes. Courts require Section 9 applications to be filed with reasonable expedition. Unexplained delay of a significant period is treated as a material factor weighing against the grant of relief, since urgency sits at the centre of the remedy.

Can Section 9 relief be sought to protect the amount awarded, after an award is passed?

Yes. Section 9(1) permits an application at any time after the making of the award but before it is enforced under Section 36. Such relief protects the fruits of the award pending enforcement rather than the subject matter of the dispute itself.

Is an order passed under Section 9 appealable?

Yes. Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 permits an appeal against an order granting or refusing to grant any measure under Section 9. The appeal lies to the court authorised by law to hear appeals from original decrees of the court that passed the order, which for the Bombay High Court's Original Side ordinarily means a Division Bench of the same High Court.

Can ad-interim relief under Section 9 be granted without notice to the other side?

Yes, in cases of genuine urgency, though courts scrutinise such applications closely. Ad-interim relief may be granted ex parte pending service on the respondent and a full hearing, but an applicant who delays approaching the court after becoming aware of the threat to its interests risks having urgency, and therefore ex parte relief, denied on the ground of laches.

Does a foreign-seated arbitration allow a party to seek interim relief under Section 9 from an Indian court?

Section 9 applies to arbitrations seated outside India by virtue of the proviso to Section 2(2) of the Arbitration and Conciliation Act, 1996, unless the parties have agreed otherwise. Where it applies, a party to a foreign-seated arbitration can approach a court in India, including the Bombay High Court where jurisdiction otherwise lies, for interim measures of protection.

What is the difference between relief under Section 9 and relief under Section 17?

Section 9 empowers a court, including the Bombay High Court, to grant interim measures of protection, while Section 17 gives the arbitral tribunal itself the same power once it is constituted. Since the 2015 amendment, an order under Section 17 is enforceable in the same manner as an order of court, which is why Section 9(3) ordinarily bars a fresh court application once a tribunal exists and can grant equivalent relief.

What court fee applies to filing a Section 9 petition before the Bombay High Court?

Court fees for a Section 9 petition are computed under the Bombay Court Fees Act, 1959, generally with reference to the interim relief actually claimed rather than the full value of the underlying arbitral dispute, since the relief sought is interim and ancillary to the arbitration rather than a final adjudication of the claim.

Is there a limitation period for filing a Section 9 application?

The Arbitration and Conciliation Act, 1996 does not prescribe a separate limitation period for a Section 9 application, so the general provisions of the Limitation Act, 1963 apply by analogy to the underlying relief sought. In practice, urgency is central to Section 9 relief, so unexplained delay in approaching the court is treated as a factor against the grant of interim protection, independent of any formal limitation bar.

Vikrant D. Shetty | Vikrant D. Shetty leads the Insolvency and Arbitration Practice at Vikrant D. Shetty & Associates, Advocates & Solicitors. The firm advises financial creditors, operational creditors, and corporate debtors in proceedings before the National Company Law Tribunal (NCLT), Mumbai Bench, and represents parties in domestic and international commercial arbitrations seated in India and abroad, including enforcement and challenge proceedings before the Bombay High Court.

This article is for general informational purposes only and does not constitute legal advice. For advice specific to your situation, please seek direct consultation with an advocate.