India: Foreign Award Holders Can Seek Interim Reliefs Under Section 9 Rules Bombay High Court

Last Updated: 19 May 2017
Article by Chakrapani Misra and Deekshitha Ganesan

Most Read Contributor in India, August 2018

In a recent decision, the High Court of Bombay (Court) held that the applicability of Section 9 to foreign arbitral awards under Part-II of the Arbitration and Conciliation Act 1996 (Act) can be restricted only if the agreement states so in specific terms and a mere designation of an overseas venue or applicable law would not be sufficient. In other words, applications for interim protection under Section 9 of the Act may be filed to secure the interests of the award holder even in case of a foreign award, unless express exclusion of this Section is made in the agreement between the parties.

Factual Background

The parties had entered into a contract for the sale of a helicopter by the petitioner to the respondent. The said contract was to be governed in accordance with Singapore law and further provided that any dispute would be referred to arbitration in Singapore to which the SIAC Rules would be applicable.

As per the contract, parties subjected disputes that arose between them to arbitration, pursuant to which an arbitral award (Foreign Award) was rendered on 25 January 2017 in favour of the petitioner amounting to approximately USD 7 million.

The petitioner had made an application for certain urgent ad-interim reliefs under Section 9 of the Act on 17 April 2017 before the Hon'ble Court on the ground that the respondent has only one asset in India, namely the 'Augusta Helicopter'. This asset was valued at approximately USD 11 million and was being used in the respondent's ONGC operations. In view of these facts, an ad-interim injunction was granted in favour of the petitioner by the Hon'ble Court.

Contentions of Parties

The present petition under Section 9 came up before the Hon'ble Court on 28 April 2017 for confirmation of the ad-interim reliefs that had been granted on the previous occasion.

The said petition was filed on the ground that the 'Augusta Helicopter' is the only substantial asset of the respondent and lies within the jurisdiction of the Hon'ble Court and the petitioner apprehended that the respondent would alienate or encumber the helicopter in order to prevent it from being used in the enforcement of the Foreign Award. Therefore, in order to secure the amount under the Foreign Award, the petitioner prayed for interim reliefs restricting the respondent from disposing of or encumbering the helicopter in any manner and from removing it from the jurisdiction of the Hon'ble Court except for the purposes of its operations in its base in Mumbai.

The respondent resisted the petition on two grounds:

  • Section 2(2) of the Act provides that Section 9 of the Act would be applicable to a foreign award rendered under Part II of the Act only in the absence of an agreement to the contrary. However, in the present case, the parties had entered into an agreement in 2014 which specifically subjected disputes arising between the parties to arbitration under the laws of Singapore and the SIAC Rules, thereby excluding the applicability of Section 9 of the Act. Therefore, the petitioner could not invoke Section 9 of the Act for interim reliefs.
  • In any event, assuming but not conceding that the arbitration agreement itself does not constitute an agreement to the contrary under Section 2(2) of the Act, Section 9 still cannot be invoked as the Foreign Award is not one that is 'enforceable and recognised' as per Section 2(2) as it has not been made enforceable under Section 48 of the Act (which lays down the procedure for enforcement of foreign awards). Therefore, the protection afforded under Section 9 can be utilised only in the period between when an award is made enforceable under Section 48 and is pending to be executed.

Decision of the High Court

However, the Hon'ble Court rejected both the contentions of the respondent as follows:

  • An arbitration agreement that merely provides for a venue and applicable law not being India would not satisfy the intent of the proviso. The agreement must, in specific terms, provide that Section 9 of the Act will not apply to any award rendered pursuant to the arbitration agreement.
  • Section 48 is merely a discretionary remedy and permits refusal of enforcement in the event one or more of the conditions listed under Section 48 have not been satisfied. If the contention of the respondent is accepted and no protection is afforded under Section 9, it would permit the removal, encumbrance or destruction of the only asset remaining in India. This would be contrary to the purpose of Section 2(2) of the Act, which is to make available a remedy afforded to domestic awards to foreign awards as well by ensuring that the holder of the foreign award has an asset against which he can proceed if he is able to get the award enforced. Therefore, the protection afforded to a foreign award would be available from the time the award is pronounced until the beginning of execution proceedings under Section 49.

Therefore, while noting that failure to grant interim reliefs in such a case could cause irreparable prejudice to the petitioner, the Hon'ble Court confirmed the grant of the ad‑interim reliefs preventing dissipation of 'Augusta Helicopter' in any manner including disposing of and creating any encumbrance on it. The respondent was permitted to use 'Augusta Helicopter' for operations other than the ONGC operations as well.

However, the interim relief was to be subject to a first charge held by Union Bank of India (Bank) created as security for the borrowings of the respondent from the Bank and would be without prejudice to the right of the Bank to enforce its security in the event it is required.

It is of note that according to the Hon'ble Court, the only alternative to an injunction of this nature under Section 9 would be for the respondent to deposit sufficient money in court or to secure the asset for a potential enforcement action in respect of the Foreign Award.

Khaitan Comment

Through this decision, the Hon'ble Court has attempted to balance the intention behind the amendment to the Act to ensure that the situation that resulted post the decision in Bhatia International does not occur, with the need for court intervention to protect the interests of foreign award holders when the judgment debtor has limited assets in India. The Hon'ble Court has clarified when holders of foreign awards can approach the courts in India under Section 9 for interim and ad-interim relief and this will go a long way in providing confidence to foreign investors and foreign award holders.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions