India: Jurisdiction Of A Court To Decide An Application Under Section 9 Of Arbitration Act During The Pendency Of Proceedings To Enforce A Foreign Award

The Bombay High Court (BHC) has passed a judgment in Trammo DMCC v Nagarjuna Fertilizers And Chemicals Limited on the issue of whether for the purpose of determining the jurisdiction of a court to entertain an application under Section 9 of the Arbitration and Conciliation Act, 1996 (Act) (during the pendency of proceedings to enforce a foreign award), the definition of "Court" as provided in Section 2(1)(e)(ii) (under Part I of the Act) or as prescribed in the proviso to Section 47 (under Part II of the Act) would be applicable.


The Petitioner had obtained certain awards against the Respondent in a foreign seated international commercial arbitration. Neither did any part of the cause of action arise within the jurisdiction of the BHC nor did the Respondent have any place of business, as required under law, within the jurisdiction of the BHC. However, on the basis of certain bank accounts of the Respondent located within the jurisdiction of BHC alone, the Petitioner filed proceedings under Sections 47 and 49 of the Act to enforce the awards along with a separate petition seeking interim measures under Section 9 of the Act before the BHC.

A preliminary objection to the Section 9 petition was taken by the Respondent on the ground that the BHC did not have jurisdiction to entertain the same. It was the contention of the Respondent that "Court", for the purpose of an application under Section 9 of the Act, would be the "Court" as defined in Section 2(1)(e)(ii) of the Act, i.e. the High Court having ordinary original civil jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit. In such a case, BHC would have jurisdiction to hear the dispute only if, inter alia, the cause of action arose within its jurisdiction or if the Respondent had a place of business within its jurisdiction. It was contended that since neither the cause of action arose within the jurisdiction of the BHC nor did the Respondent have any place of business therein, thus, the BHC would not have jurisdiction to entertain the Section 9 petition filed by the Petitioner.

The Petitioner contended since the awards were passed in a foreign seated arbitration, and Section 9 of the Act had been made specifically applicable to it by virtue of the proviso to Section 2(2) of the Act, the reference to "Court" in Section 9 should be to a "Court" as defined in the Explanation to Section 47 of the Act. "Court", in the said Explanation, is defined as a High Court having jurisdiction to decide the questions forming the subject matter of the arbitral award. It was contended that considering the Respondent, in the present case, held bank accounts within the jurisdiction of the BHC, which formed the subject matter of the arbitral award, the BHC would have jurisdiction to entertain both the Section 9 petition as well as the Section 47 and 49 petition seeking recognition and enforcement of such a foreign award. The Petitioner added that in the scenario envisaged by the Respondent, the purpose of amendment of Section 2(2) would be defeated, as the court would have the jurisdiction to entertain a petition for enforcement, but not to grant interim relief under section 9 pending the enforcement proceedings. A purposive construction was, accordingly, sought.


The BHC held that for the purpose of Section 9 of the Act, once a foreign award is passed, the jurisdiction of a court would have to be determined on the basis of the definition of "Court" provided in the proviso to Section 47 of the Act. As a result, thereof, once a foreign award has been passed, the award holder can approach any court where the award is capable of being enforced under Section 47 and 49 of the Act, for obtaining an interim relief under Section 9 of the Act.

The BHC has, while passing the said judgment, proceeded by applying the principle of purposive construction to ascertain the object and intention of the legislation. The BHC was of the view that applying the definition of "Court" as provided in Section 2(1)(e)(ii) of the Act, to a post award scenario in a foreign seated arbitration, would create an incongruity in enforcing the provisions of Section 9 of the Act in as much as a party would be prevented from seeking interim reliefs, while enforcing a money award, as the monies may be lying beyond the jurisdiction of the court, being the court as per Section 2(1)(e)(ii) of the Act. The BHC was of the view that it could not have been the legislative intent to have two different courts for enforcement of foreign award and for securing the same foreign award.

The BHC, therefore, held that since Section 2 of the Act begins with "In this Part, unless the context otherwise requires", by applying the principles of contextual interpretation, in the context where a party is holding a foreign award and where the monies/assets of the award debtor is available/located in the jurisdiction of a particular court, it is inferred that in view of the definition of "Court" under Section 47, that court would be the appropriate court under Section 9 of the Act.


While the above judgment may appear to be progressive, it brings along with it certain anomalies that have not been thought through. Firstly, the law laid down by the judgment is completely contrary to the express language contained in the Act and has led to a dichotomy in the jurisdiction of courts regarding applications under Section 9 of the Act. Importantly, by virtue of this judgment, different courts will have jurisdiction to decide an application under Section 9 of the Act prior to the conclusion of a foreign seated arbitration, and post the passing of an award. While the entire judgment is premised on legislative intent, it is difficult to accept that the legislature intended for a situation wherein different courts would have jurisdiction at different stages of an arbitration.

The judgment appears to have attempted to fix a lacuna in the law. However, it is important to remember that the last time a court tried to fix a lacuna in the law instead of following the law as laid down, it led to consequences which it did not intent. The effects of which are being felt even today.

It remains to be seen whether or not the parties carry such a judgement to appeal.

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