Section 9 interim relief available for foreign awards post Part II enforcement filing until recognition under Section 49 deems it a decree, distinguishing from automatic enforcement of domestic awards.

JUDGEMENT :

SOMASEKHAR SUNDARESAN, J.

Context and Factual Background:

1. This is a Petition filed under Section 9 (“Section 9 Petition”) of the Arbitration and Conciliation Act, 1996 (“the Act”) with the Petitioner, Osterreichischer Lloyd Seereederei (Cyprus) Limited (“Petitioner”), seeking interlocutory measures of protection, pending enforcement of a foreign arbitral award dated March 23, 2020 (“Foreign Award”), to secure the amount awarded in the sum of USD 269,105.08 (“Award Amount”).

2. The Petitioner has parallelly filed Commercial Arbitration Petition No. 403 of 2025 under Sections 47 and 48 of the Act, seeking enforcement and execution of the said Foreign Award (“Enforcement Petition”).

3. The fundamental opposition to the captioned Petition from the Respondent, Victore Ships Private Limited, (“Respondent”) is premised on the ground that the jurisdiction under Section 9 is not available when a Petition under Part II of the Act has been initiated for enforcement of foreign awards. Since enforcement and execution are rolled up into one petition under Part II, it is contended by the Respondent that “enforcement” and “execution” are interchangeable terms and the approach to Section 9 of the Act would not be available. Since a foreign award is considered to be a decree for enforcement, the contention is that the Section 9 Court cannot be approached as conflicting views may emerge in the proceedings under Part II of the Act and under Section 9 of the Act.

Contentions of the Parties:

4. I have heard Mr. Prathamesh Kamat, Learned Advocate for the Petitioner and Mr. Vishal Kanade, Learned Advocate for the Respondent, and with their assistance examined the record and the judgements sought to be relied upon by them.

5. Mr. Kanade places reliance primarily on a decision of a Learned Single Judge passed in Centrient, [Centrient Pharmaceuticals India Pvt. Ltd. v. Hindustan Antibiotics Ltd. – 2019 SCC OnLine Bom 1614] which holds that Section 9 proceedings would not lie once proceedings to execute an arbitral award have been filed. Mr. Kanade would submit that the jurisdiction of Section 9 can be invoked before commencement and during conduct of arbitral proceedings (subject of course to Section 17) but after the arbitral award is made, the approach under Section 9 would need to be before the same is enforced. Relying on judgements that declare that proceedings under Part II roll up recognition and enforcement into one, he would submit that the filing of a Petition for enforcement under Part II partake the character of execution proceedings and therefore the approach under Section 9 would be barred.

6. Mr. Kanade would rely on Fuerst Day Lawson, [ Fuerst Day Lawson v. Jindal Exports Ltd. – (2001) 6 SCC 356] and LMJ International, [ LMJ International Ltd. v. Sleepwell Industries Company Ltd. – (2019) 5 SCC 302] to indicate that the proceedings under Part II being a composite one, it would not be proper to invoke Section 9 of the Act once the Court is presented with a Petition under Part II of the Act.

7. Mr. Kamat would counter this with reliance upon Heligo Charters, [ Heligo Charters Private Limited v. Aircon Feibars FZE , 2018 SCC OnLine Bom 1388] to contend that this issue is already