The Court held that the Amendment Act of 2015 applies to all Court proceedings on and from 23rd October 2015, and that the Court cannot entertain an application for interim relief under Section 9(1) of the 1996 Act once the arbitral tribunal has been constituted, unless the Court is satisfied that circumstances exist which may not render the remedy provided under Section 17 efficacious.

Indira Banerjee, J.

This appeal is against an Order No. 9 dated 5thJanuary, 2016 passed by the Court of the learned District Judge, South 24 Parganas at Alipore, in an application of the appellant for interim relief, under Section 9 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the 1996 Act.

2. The appellant and the respondent carried on business in real estate, as partners of the partnership firm ‘Pyramid Construction and Contractors.

3. A Deed of Partnership dated 31st November 1995 was executed by and between the appellant and the respondent in terms whereof the respondent contributed 100% to the capital of the firm. The petitioner made no contribution.

4. It was, however, agreed that the share of profits and loss of the partnership firm, would be shared between the partners in the proportion of 75 percent and 25 percent, the share of the respondent being 75 percent, and the share of the appellant being 25 percent. The said partnership firm contained a clause for settlement of disputes by arbitration.

5. The partnership firm undertook six construction projects, particulars whereof have been given in the petition. However, disputes and differences arose between the respondent and the petitioner with regard to the partnership business and/or sharing of profits thereof.

6. After the disputes arose, the appellant filed an application in the Court of the learned District Judge, Alipore, under Section 9 of the 1996, Act praying for inter alia an order of injunction restraining the respondent, his men, agent, representatives from transferring, alienating or creating rights in favour of third parties in respect of the assets and properties, including bank accounts, investment, securities in the name of the partnership firm, jointly owned by the petitioner and the respondent and other consequential reliefs, including appointment of a receiver.

7. On the said application being moved, the Court of the learned District Judge passed an order restraining the respondent from transferring, alienating, disposing of or parting with possession or creating third party interest in respect of the assets and properties of the partnership firm. After the aforesaid order was passed an Arbitral Tribunal was constituted, and arbitration proceedings commenced.

8. While the arbitration proceedings were pending, Parliament enacted the Arbitration and Conciliation (Amendment) Act, 2015, hereinafter referred to as the Amendment Act of 2015, which came into force with retrospective effect from 23rd October, 2013.

9. After the Amendment Act of 2015 was enacted the respondent filed an application seeking dismissal of the application of the appellant under Section 9 of the 1996, in view of the amendment of Section 9 of the 1996 Act by the Amendment Act of 2015, by incorporation of Section 9(3), placing fetters on the power of the Court to entertain an application under Section 9, after the Arbitral Tribunal was constituted. The application of the respondent was heard and disposed of along with the pending application of the appellant under Section 9 of the 1996 Act.

10. By the impugned order dated 5th January, 2016, the learned Court dismissed the application of the appellant under Section 9 of the 1996 Act, inter alia observing that since the arbitral proceedings had already been initiated, the Court was no longer authorized to pass any order on an application under Section 9(1) of the 1996 Act.

11. The learned Court, in effect held that, in view of the enactment and enforcement of the Amendment Act of 2015, amending Sections 9 and 17 of the 1996 Act with effect from 23rd October, 2015, the Court could not pass an order of interim relief under Section 9 of the 1996 Act once the Arbitral Tribunal had been constituted.

12. The short question in this appeal is, whether the Court has been denuded of power to grant interim relief to the appellant under Section 9 of the 1996 Act, from the date on which the Amendment Act of 2015 came into