In Arbitral Interest (?): Examining the Procedural Contours of Relief of Securing Disputed Amount in Arbitration under Section 9

Introduction

Section 9 of the Arbitration and Conciliation Act, 1996 enables a party to an arbitration agreement to apply for an interim measure of protection to a court of law.¹ This application can be made before the constitution of the Arbitral Tribunal, during the arbitral proceedings, or at any time before enforcement of the arbitral award. Section 9(1) spells out the different kinds of remedies available while making an application to a court. One such remedy which a party can seek under Section 9(1)(ii)(b) is securing the amount in dispute in the arbitration.²

The object of the section is to secure the amount in dispute from evasive attempts and ensure that the execution of an award is not rendered nugatory or unattainable.³ This is why the section can be invoked pre-emptively — even before the constitution of the Arbitral Tribunal.

The nature of relief in securing the amount in dispute under Section 9 is analogous to provisions of Order 38 of the Code of Civil Procedure (hereinafter referred to as “CPC”).⁴ Order 38 Rule 5(1) CPC stipulates that a court may order a defendant to furnish a security — ensuring that an award passed against the defendant can be sufficiently satisfied.

Due to the similar nature of the two provisions, a simple question has plagued Section 9 applications: Whether the preconditions under Order 38 Rule 5 are to be met before an order securing the amount in dispute is passed? A 2-Judge Bench of the Supreme Court in Sanghi Industries Ltd. v. Ravin Cables Ltd. (Sanghi Industries) answered the above question in the positive and overturned an impugned order which directed furnishing of the security.⁵

This article anatomises the judgment of the Supreme Court and argues against imposing the preconditions of Order 38 Rule 5 in a Section 9 application.

Order 38 Rule 5 CPC — Preconditions for attachment before judgment

Order 38 Rule 5 CPC provides for the furnishing of security for the production of property by the defendant in a suit. Rule 5(1) of Order 38 provides:

5. Where defendant may be called upon to furnish security for production of property.—(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,⁶

Thus, there are 3 primary conditions to be satisfied under Order 38 Rule 5. The first precondition posits the existence of a prima facie case through the use of “may be passed against”. When this condition is met, the burden shifts onto the defendant to disprove the case of attachment. This is substantiated by Rule 6 of Order 38 which provides for consequences in case “where the defendant fails to show cause why he should not furnish a security”. This means that first, a prima facie case has to be established by the petitioner before the burden shifts to the defendant.

Second, the “intent to obstruct or delay” on the part of the defendant is relevant. Lastly, the subjective satisfaction of the court is premised on (1) an affidavit by the petitioner; or (2) otherwise. This means that it is essential to place material before the court which leads to a real inference about the defendant’s intentions to part with their property which could ultimately frustrate the realisation of a decree.

At this stage where the court is seized of such inference, the court is discretionally empowered to direct the defendant to furnish security as may be sufficient to satisfy the decree. In contrast to Order 38 Rule 5, Section 9 of the Arbitration Act is an interim relief and does not expressly specify any prerequisites for granting relief.

Importation of the preconditions under Section 9 jurisprudence

The paragon question of importing the prerequisites of Order 38 Rule 5 to Section 9 applications is, predictably, not new. Numerous judgments on the question showcase the volume of opportunity which the High Courts have had to consider this issue. In one of the earliest cases dealing with the issue in 1998, the Delhi High Court in Global Co. v. National Fertilizers Ltd. opined that there is a lack of guidelines for allowing relief under Section 9.⁷ Accordingly, the High Court borrowed and imitated the preconditions under Order 38 Rule 5, to hold that —adequate material must be furnished by the petitioner to satisfy the court that the defendant intends to defeat, delay, or obstruct the execution of the arbitral award.

The judgment in Global Co. case⁸, apart from being one of the earliest judicial authorities on the question, is significant for one other reason. This judgment highlights the narrow interpretation afforded to Section 9 — a discretionary power of the Court. Regrettably, the same approach has been followed in many other cases where Section 9 has been treated as a simulacrum of Order 38. Consequently, the courts have disallowed the grant of relief for securing the amount in dispute without complying with Order 38.

However, nearly a decade later in R.R. Constructions v. St. Ann’s Coop. Group Housing Society, a Coordinate Bench of the Delhi High Court allowed a Section 9 application for securing the amount in dispute while finding the existence of a prima facie case in favour of the petitioner.⁹ Here, the Court agreed with the submission of the petitioner that the Actis a special statute and the grant of interim relief thereunder should not be attainable only on the subjective satisfaction of the provisions of CPC.

During this time, in one matter, a related issue concerning the application of the rules of CPC to Section 9 was laid for the Supreme Court’s consideration in Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corpn.¹⁰ However, the Court chose not to substantively engage with the issue and only noted that — the exercise of power under Section 9 ought to be based on recognised principles concerning the grant of interim protections.

Supreme Court on Section 9: A tango in opposite directions

In Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India Ltd. (Essar House), a 2-Judge Bench of the Supreme Court weighed that while no order under Section 9 for securing the amount in dispute should be made in ignorance of basic principles of CPC, the discretionary power of the Court is “not curtailed by the rigours of every procedural provision in the CPC”.¹¹ Agreeing with the position taken by the High Courts of Delhi¹², Bombay¹³ and Calcutta¹⁴, the Supreme Court in Essar House case regurgitated that while passing an order under Section 9, the Court should satisfy itself only with — the existence of a prima facie case, and balance of convenience. Moreover, even though Order 38 Rule 5 posits apprehensions about the dissipation of assets, actual proof of any attempts of such dissipation need not be furnished as a prerequisite for the grant of relief under Section 9.¹⁵

Thus, there is a clear contrast between the two judgments of the Supreme Court on the point. While Essar House case¹⁶ waives the requirement of satisfying Order 38 Rule 5 preconditions for the grant of relief and dilutes the want of actual proof, Sanghi Industries case¹⁷ directs satisfaction of the prerequisites and necessity of cogent material supplementing the apprehensions. This contrasting position in Essar House case¹⁸ and Sanghi Industries case¹⁹ may be attributable to the close time of delivery of the two judgments — Sanghi Industries case²⁰ being delivered shy of a month apart from the pronouncement of Essar House case²¹.

With these contrasting judgments in mind, let us consider why a judicious application of Section 9 is in the spirit of arbitration.

Analysing Section 9: Advocating for a judicious application in the interest of arbitration

Section 9 and Order 38: Two distinct provisions

The provisions of Section 9 and Order 38 are in the form of interim reliefs that protect the final decree from any evasive attempts. Both provisions empower courts to direct furnishing of security at any stage of the suit or the arbitration, as the case may be. However, there was no legislative intent to curate Section 9 along the lines of Order 38, or the expectation to satisfy the conditions of the latter for relief under the former. Consequently, Order 38 preconditions should only serve as guiding principles in deciding a Section 9 case, and ought to not be enforced as a strict measure.

Contrary to the ubiquitous belief as noticed in Global Co. case²², an application of Section 9 is not fraught without any guidelines which would warrant the importation of provisions from the CPC. It is a general expectation that the existence of a prima facie case, and a balance of convenience has to be weighed while dealing with the issue. These twin requirements, even though they conceptually align with Orders 38 and 39²³, are not legislative constructs, but equitable ones.

The existence of a prima facie case ensures that an innocent defendant is not inconvenienced for no probable fault. Nevertheless, the grant of relief under Section 9 is also tempered with the satisfaction of a balance of convenience for both parties.²⁴ However, the balance of convenience has to be applied conjointly with prima facie case and not disconnectedly. That is, the Court must weigh the potential harm of denying interim relief to the applicant if they succeed in the case against the potential harm of granting interim relief to the opponent if the case ultimately fails. In this vein, Essar House case²⁵ has rightfully read the requirement of establishing a prime facie case under Section 9 as an essential precondition.

The broad nature of Section 9

The purpose, intent and application of Section 9 pertaining to securing the amount in arbitration is also fundamentally wider from the objective of Order 38. Arbitrations encompass a diverse spectrum of contractual arrangements that surpass the common complexities inherent in civil litigation.

Section 9 does not operate only on the apprehensions of dissipating assets but is a wider provision. This is exacerbated by the language of Section 9 which does not discuss the specific reasons for its operation, as opposed to the substantive counterpart of Order 38. This establishes that the power under Section 9 is discretionary and accordingly not supplemented with express guidelines.

This notion was underscored by the sweep of the Supreme Court’s ruling in Essar House case²⁶ — establishing that Section 9 confers a wide power on the Court owing to the nature of arbitral settings. Securing an amount in relief is premised on the “diminution” of assets and not solely on the “dissipation” of assets. A situation may appear where the amount may not be ultimately available due to the fiscal health of a company, or where a company is set up as a special purpose vehicle for a particular project and the finances of a company depend on revenue which may cease hereon. This position was correctly appreciated by the Delhi High Court in Tahal Consulting Engineers India (P) Ltd. v. Promax Power Ltd.²⁷, which speculated a situation where assets are neither expressly disposed nor removed but their value depreciated over time with the intent of defeating the object of the award.

Thus, in certain cases involving complex arbitration, situations will arise that warrant securing relief on a broader set of apprehensions than initially imagined under the CPC. For example, in the context of Rule 5(1)(b)²⁸ (which contemplates attachment in case of a defendant moving assets outside of territorial jurisdiction), it may very well be argued that in international commercial arbitration involving a foreign company as the defendant, a corresponding relief under Section 9 should be leniently granted given that property is anyway situated outside of territorial jurisdiction of the courts (if the foreign company has no assets in India).

Thus, when a statute like the Arbitration and Conciliation Act, 1996²⁹ provides for a grant of interim relief in a discretion-based fashion, it is important not to restrict such relief with the tribulations of strict procedural contours but rather exercise in the ultimate interest of justice — relevant to the specific facts and circumstances.³⁰

In the humble opinion of the author, the position laid down in Essar House case³¹ — requiring Section 9 application desiring securing the amount in dispute to establish a prima facie case and balance of convenience was a progressive step. This ruling aligns with Article 17-A of the UNCITRAL Model Law which espouses the subjective satisfaction of “irreparable harm” and prima facie case to secure an interim relief by an Arbitral Tribunal.³² Here, the ground of “irreparable harm” is also construed not literally as “irreparable” but rather as serious or substantial economic harm.³³ In commercial arbitration practice, courts only examine the possibility of serious harm to the plaintiff in denying the application rather than a yardstick of literal irreparable harm. This application is founded on practical considerations — it is not easy to demonstrate the irreparability of harm in commercial cases.³⁴ This has been witnessed through rulings of the International Chamber of Commerce (ICC) Arbitral Tribunals which have considered serious risks of financial harm to meet the standard delineated under Article 17-A(1)(a).³⁵

Thus, the general trend in international commercial arbitration is to leniently approach prerequisites of civil law. Contrary to this spirit, the position regarding interim reliefs was unfortunately gainsaid in Sanghi Industries case³⁶ which ignores the distinct nature and purpose of Section 9 and dilutes the discretionary nature of the provision for the satisfaction of rigours enumerated under the CPC.

Interpreting a discordant position and way forward

Since the judgment rendered in Sanghi Industries case³⁷, multiple cases have had the opportunity to distinguish the judgment from Essar House case³⁸. However, the record suggests that the High Courts have been following Essar House case³⁹ without any substantial reference to Sanghi Industries case⁴⁰. Judgments from the High Courts of Calcutta,⁴¹ Madhya Pradesh⁴², Madras⁴³, and Delhi⁴⁴ have dealt with Section 9 applications and followed Essar House case⁴⁵ without adverting to the contrasting ratio in Sanghi Industries case⁴⁶.

In October 2023, in Vivek Jain v. Prepladder (P) Ltd., a Coordinate Bench of the Delhi High Court had the opportunity to consider the legal position concerning securing relief under Section 9 in light of the contrasting ratios of Essar House case⁴⁷ and Sanghi Industries case⁴⁸.⁴⁹ Here, the High Court rightfully proffered Sanghi Industries case⁵⁰ legal precedence over Essar House case⁵¹ — the latter judgment of two Benches of equal coram strength. Following this stead, a Division Bench of the Delhi High Court in Skypower Solar India (P) Ltd. v. Sterling and Wilson International FZE, also proffered priority to Sanghi Industries case⁵².⁵³

However, it remains a question of enquiry if Sanghi Industries case⁵⁴ lays down the correct law in terms of arbitral interest — espousing judicial congruency with the intent and purpose of arbitration law.

Concluding remarks and future perspectives

The corseting of Order 38 Rule 5 provisions to a Section 9 application seeking relief of securing the amount in a dispute is problematic. The burden to furnish cogent and actual proof before the grant of relief securing the amount in dispute in arbitration is unnecessary and effectively deliquesces the interim nature of the relief. Such an approach will temper arbitration proceedings and protract the apprehensions surrounding attaining the finality of the award.

The arbitral process, as a creature of contract, presupposes the need for flexibility in enforcing interim measures. Thus, the application of procedural safeguards imported from the CPC should be done sparingly and judiciously albeit not in complete ignorance. Such an approach would recognise the unique nature of arbitration and duly accommodate the protective order under Section 9 which is rendered in the interest of justice and to secure the sanctity of the arbitral process.

On another front, it is pertinent to distinguish between the wide discretionary power of a court under Section 9, with the provisions laid down to govern the procedural application of civil litigation. While dealing with Section 9, it is imperative to retain the discretion of the Court to tailor relief as deemed fit in specific instances involving arbitrations.

At this juncture, there is a fervent hope for the rectification of the above position through legislative or judicial intervention to ensure that legal principles emanating from the Arbitration and Conciliation Act harmoniously align and recalibrate themselves with arbitration law and its contractual underpinnings.