How to Choose Between Section 9 and Section 17 for Interim Relief in an Indian Arbitration
Two provisions of the Arbitration and Conciliation Act, 1996 offer interim relief in almost identical terms. Section 9 is addressed to a court and Section 17 to the arbitral tribunal, and the choice between them is governed by timing, by the identity of the person you need bound, and by what you intend to do with the order afterwards. Getting it wrong is expensive: the Supreme Court held in Union of India v. Hariom Projects Private Limited, 2026 INSC 1044, that a pending appeal under Section 37 against the refusal of interim relief cannot be remitted to the tribunal to be treated as a Section 17 application, so a wrong turn cannot simply be converted into a right one. This guide sets out how to make the choice.
Step 1: Establish Whether a Tribunal Exists Yet
This is the threshold question, because it decides whether the court is freely available. Section 9(1) permits an application to a court before or during arbitral proceedings, and after the award is made but before it is enforced under Section 36. Section 17(1) permits an application to the tribunal during the arbitral proceedings, which means after it is constituted and before it is functus officio.
So before constitution there is only one forum. Section 17 is not available, and the application goes to the court under Section 9.
Step 2: If a Tribunal Exists, Test Yourself Against Section 9(3)
Section 9(3) provides that once the arbitral tribunal has been constituted, the court shall not entertain an application under sub-section (1) unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious.
In practice, that is a pleading burden and not a formula. Identify what the tribunal cannot do or cannot do in time: it is not yet seized of the file, it cannot sit for weeks, the relief has to bind someone who is not a party, or enforcement has to be immediate. Assert the conclusion without the facts and the application will be relegated to the tribunal.
Step 3: Ask Whom the Order Has to Bind
A tribunal's authority comes from the arbitration agreement, so its interim orders operate between the parties to that agreement. Where the protection you need runs against a bank holding a guarantee, a registrar, a purchaser of the asset, or any other person outside the agreement, the tribunal is the wrong forum however convenient it is.
That is often the clearest and most defensible answer to Section 9(3), because it identifies something the Section 17 remedy structurally cannot deliver rather than something it might deliver slowly.
Step 4: Work Out How the Order Will Be Enforced
Section 17(2) provides that, subject to any orders passed in an appeal under Section 37, an order of the tribunal under that section is deemed to be an order of the Court for all purposes and is enforceable under the Code of Civil Procedure, 1908 in the same manner as if it were an order of the Court. The deeming provision closed the enforcement gap that existed before it.
Enforcement is therefore no longer a decisive reason to prefer the court. It remains a practical consideration where the breach is likely to be immediate and contumacious, because a court seised of the matter can act on its own order without the additional step of treating the tribunal's order as one of its own.
Step 5: Decide What You Will Do if You Lose
Both routes are appealable and the appeals go to a court. Section 37(1) allows an appeal from an order granting or refusing a measure under Section 9. Section 37(2)(b) allows an appeal from an order of the tribunal granting or refusing an interim measure under Section 17. Section 37(3) bars a second appeal, without affecting any right of appeal to the Supreme Court.
The consequence is that neither forum offers finality at the interim stage, and the choice should not be made on the assumption that one of them does.
Step 6: Do Not Try to Convert One Route Into the Other
Where an application under Section 9 has been refused and an appeal is pending, the appeal cannot be sent to the tribunal to be treated as an application under Section 17, and consent does not change that. Appellate jurisdiction under Section 37 is vested in the court, and a tribunal exercising powers under Section 17 does not sit in appeal over a court's order under Section 9.
If the client's real objective is a fresh decision on current facts rather than a finding that the earlier order was wrong, the clean course is to withdraw the appeal and apply to the tribunal under Section 17. Say so on the record, so that the withdrawal is not later read as abandonment of the grievance.
Step 7: Match the Relief to the Statutory Categories
Both sections list the same broad categories: the appointment of a guardian for a minor or a person of unsound mind for the purposes of the proceedings, the preservation of goods, securing the amount in dispute, the detention, preservation or inspection of property, an interim injunction, the appointment of a receiver, and such other interim measure of protection as may appear just and convenient.
Draft the prayer to sit inside one of those categories rather than in the language of the commercial grievance. A prayer for security in a stated sum is easier to grant than a prayer that the counterparty behave reasonably.
Common Pitfalls to Avoid
Treating Section 9(3) as a formality: The court must find that circumstances exist which may not render the Section 17 remedy efficacious. That finding needs facts, pleaded specifically.
Seeking relief against a non-party from the tribunal: The tribunal's authority rests on the arbitration agreement. An order that has to bind a stranger to it belongs in a Section 9 application.
Assuming the court is faster: A constituted tribunal that can sit at short notice is often quicker than an appellate list. Compare the two honestly before choosing.
Consenting to a transfer of the appeal: A Section 37 appeal cannot be remitted to the tribunal as a Section 17 application, even by agreement. Withdraw and reapply instead.
Forgetting the post-award window: Section 9 remains available after the award is made and before it is enforced under Section 36. Section 17 does not, because the tribunal's mandate has ended.
Key Statutory Provisions
Section 9(1) of the Arbitration and Conciliation Act, 1996: A party may apply to a court for interim measures before or during arbitral proceedings, or after the making of the award but before it is enforced under Section 36.
Section 9(2) of the Arbitration and Conciliation Act, 1996: Where a court passes an interim measure before the commencement of arbitral proceedings, those proceedings must commence within ninety days of the order or such further time as the court may determine.
Section 9(3) of the Arbitration and Conciliation Act, 1996: Once the tribunal has been constituted, the court shall not entertain an application under sub-section (1) unless it finds that circumstances exist which may not render the remedy under Section 17 efficacious.
Section 17 of the Arbitration and Conciliation Act, 1996: Interim measures ordered by the tribunal during the arbitral proceedings, with sub-section (2) deeming such an order to be an order of the Court and enforceable under the Code of Civil Procedure, 1908, subject to any order in an appeal under Section 37.
Section 37 of the Arbitration and Conciliation Act, 1996: Appeals from an order granting or refusing a measure under Section 9 and from an order of the tribunal granting or refusing an interim measure under Section 17, with no second appeal but without affecting any right of appeal to the Supreme Court.
Sources and References
Union of India v. Hariom Projects Pvt. Ltd., Supreme Court, September 18, 2026
Section 9 of the Arbitration and Conciliation Act, 1996: Interim measures by Court
Section 37 of the Arbitration and Conciliation Act, 1996: Appealable orders
Arbitration and Conciliation Act, 1996, Sections 9, 17, 36 and 37
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Readers should consult a qualified legal professional for advice specific to their circumstances.
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