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TMI Blog2022 (9) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17th October 2017 in the Commercial Division of the Delhi High Court, which is pending. 4. On the same day, that is, 3rd December 2017, the Appellant filed an interim application being I.A. No. 14342 of 2017 in the said O.M.P. (COMM) No.432 of 2017 under Section 36(2) of the Arbitration Act seeking stay of the arbitral award. 5. After about a week, on 11th December 2017, the Respondent filed an application under Section 9 of the Arbitration Act being O.M.P. (I) (COMM) No. 523 of 2017 in the High Court, inter alia, seeking orders on the Appellant to furnish security against the amount awarded by the Arbitral Tribunal. 6. On 14th December 2017, the High Court issued notice in the application filed by the Respondent under Section 9 of the Arbitration Act and directed the Appellant to file an affidavit of assets. In compliance with the order dated 14th December 2017, the Appellant submitted its affidavit giving details of its assets. 7. On or about 10th May 2018, the Respondent filed an application being I.A. No. 6704 of 2018 praying for deposit of the entire amount due from Talwandi Sabo Power Corporation Limited (TSPL). The said application was disposed of by an order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g applications." 12. On that same day, that is, 17th February 2020, the Single Bench passed another order directing notice be issued on respondents on the application of the Appellant under Section 36(2) of the Arbitration Act for stay of the award. The Court directed that, on deposit of Rs.142 Crores, as earlier directed in the application of the Respondent under Section 9 of the Arbitration Act, within four weeks, the enforcement of the award dated 17th October 2017 would remain stayed. 13. Mr. K. V. Viswanathan, appearing on behalf of the Appellant submitted that the Appellant's application for stay under Section 36(2) of the Arbitration Act had been filed before the Respondent filed its application for interim relief under Section 9 of the said Act. The application of the Appellant having been filed earlier, orders ought not to have been passed on the application of the Respondent for interim relief, without first considering the Appellant's application for stay. 14. Mr. Viswanathan pointed out that the High Court had, by clubbing the order in the Appellant's application under Section 36(2) of the Arbitration Act, with the order in the application of the Respondent under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act Provides: " 36. Enforcement.-(1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of subsection (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court. (2) Where an application to set aside the arbitral award has been filed in the court under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of subsection (3), on a separate application made for that purpose. (3) Upon filing of an application under sub section (2) for stay of the operation of the arbitral award, the court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing: Provided that the court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of protection under subsection (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the court may determine. (3) Once the arbitral tribunal has been constituted, the court shall not entertain an application under subsection (1), unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious." 21. There is no hard and fast rule that an application made earlier in point of time must be heard before an application made later in point of time. 22. Both the applications under Section 9 filed by the Respondent and the application for stay under Section 36(2) filed by the Appellant relate to the same impugned award. 23. Even though, the applications may be independent applications, there are common factors required to be considered for both the applications of the Respondent under Section 9 and the application of the Appellant under Section 36(2). The jurisdiction of this Court under Section 9 is wide. A party may apply to a Court for interim measures before the commencement of Arbitral proceedings, during Arbitral proceedings or at any time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion agreement or contract which is the basis of the award or, (b) the making of the award was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 of the award. 31. In Ajay Singh & Ors. v. Kal Airways Private Limited and Ors. 2017 SCC Online Del 8934 the Delhi High Court correctly held : "...Section 9 grants wide powers to the courts in fashioning an appropriate interim order, is apparent from its text. Nevertheless, what the authorities stress is that the exercise of such power should be principled, premised on some known guidelines therefore, the analogy of Orders 38 and 39. Equally, the court should not find itself unduly bound by the text of those provisions rather it is to follow the underlying principles..." 32. In Jagdish Ahuja & Anr. v. Cupino Limited 2020 SCC Online Bom 849, the Bombay High Court correctly summarised the law in Paragraph 6 extracted hereinbelow: " 6. As far as Section 9 of the Act is concerned, it cannot be said that this court, while considering a relief thereunder, is strictly bound by the provisions of Order 38 Rule 5. As held by our Courts, the scope of Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration Act." 34. Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the Arbitral proceedings, during the Arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition. 35. It is not in dispute that there is an award of Rs. 142 Crores in favour of the Respondent. No cogent ground has been made out even prima facie, for interference with the impugned award. 36. Order 41 Rule 5 of the CPC provides for stay of decree upon furnishing of cash security. The High Court acted within the scope of its powers under Section 9 in passing the impugned judgment and order. 37. We find no ground at all to interfere. The Appeals are dismissed. We, however, request the High Court to dispose of the pending applications ..... X X X X Extracts X X X X X X X X Extracts X X X X
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