The power to pass interim measures under section 9 and section 17 of the Arbitration and Conciliation Act, 1996 is concurrent and the court cannot refuse to entertain any matter in the absence of an express provision ousting jurisdiction.

1. BY consent of the parties the appeal is taken up for hearing as we feel that the appeal of this nature need not wait for hearing with all formalities. Hence, such formalities are dispensed with.

2. THIS appeal is taken out against an order passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Misc. Case No. 520 of 2010.

The appellant before us approached the learned Trial Judge with an application under section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'said Act") for passing interim order in the nature of injunction and appointment of receiver over the vehicle etc.,. However, the learned Trial Judge, by the impugned order, has dismissed the application in limine observing since similar remedy is available under section 17 of the said Act, this application should not be entertained.

3. WE are unable to accept the view of the learned Trial Judge for the following reasons: v

4. THE provision of section 9 enables the Court to pass interim measure even when the arbitration proceeding is not commenced and it can be invoked during arbitral proceeding or even after completion of the same but before the said award is enforced under section 36 of the said Act. In order to appreciate this position, we set out section 9 of the said Act in the following manner:

"Section 9. Interim measures, etc., by Court.-A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a Court:-

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:-

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it."

It appears that in section 17, the power has been given for taking interim measure by the arbitral Tribunal. We are of the view that section 17 is applicable when the arbitration proceeding has been initiated, meaning thereby when the arbitral Tribunal is seisin over the matter, then in aid and assistance of the original proceeding arbitral Tribunal can take interim measure at the request of any of the parties. It is, thus, clear that the scope and purview of section 9 vis-a-vis the power of the Court for passing interim measure is wider as far as the stage and time factor are concerned.

5. NOW the question arises for consideration here whether in existence of section 17, section 9 can be invoked or not.

6. LANGUAGE of both the aforesaid sections as we feel that during pendency of the arbitration proceeding both the fora can exercise such power on the request of the parties and these provisions are not intended to apply to mutually oust the jurisdiction of each forum. According to us, this power is concurrent one and which forum is to be approached is the choice of the litigant. If one of litigants during pendency of the proceeding approaches the learned Trial Court as defined in the said Act all the parties are bound to response the same