The scope of Section 9 of the Arbitration and Conciliation Act is limited to interim protective measures and does not extend to enforcement of the award or granting the fruits of the award to the award holder as an interim measure.

ORDER :

Ravi Krishan Kapur, J.

This is an application under Section 9 of the Arbitration and Conciliation Act, 1996 ('the Act'). The petitioner seeks liberty to withdraw a sum of Rs.4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security.

2. By an award dated 24 December, 2018 (the award), the petitioner was awarded a sum of Rs.2,66,69,73/- on account of various claims and a further sum of Rs.1,37,85,395/- on account of costs along with interest @18% per annum from 25 December, 2018 till the date of payment. The subject matter of the arbitration pertains to construction of a Bridge at Mahishadal, Nandigram Road, West Bengal. Being aggrieved by the award, the respondent has filed an application under Section 34 of the Act which is pending disposal. In an application under Section 36(2) of the Act, by an order dated 9 September, 2019, a Coordinate Bench had directed the award debtor to furnish security. It is submitted on behalf of the parties, that security has since been furnished by the respondent. Hence, this application.

3. At the outset, a preliminary point of maintainability has been urged on behalf of the State. It is submitted that the reliefs sought for by the petitioner are beyond the scope and ambit of Section 9 of the Act. It is also submitted that by its very nature the only order which may be passed in an application under Section 9, is an interim order for preservation or securing the subject matter of the arbitration proceeding. It is contended that Section 9 of the Act does not contemplate payment of the awarded amount to the petitioner. On merits, it is submitted that there are no facts warranting withdrawal of the awarded amount. In support of such contentions, the respondent relies on the following decisions; Adhunik Steel Ltd. vs. Orissa Manganese & Minerals (P) Ltd. (2007) 7 SCC 125, AFCONS Infrastructure Ltd. vs. Board of Trustees of Port of Mumbai 2013 SCC OnLine Bom 1946 and Steel Authority of India Ltd. vs. AMCIPTY Ltd. & Anr. (2011) 3 Arbitration Law Reporter 502.

4. On behalf of the petitioner, it is contended that the applicability of Section 9 is no longer res integra in view of the decisions dated 14 February, 2020 and 6 October, 2020 passed by the Division Bench in connected proceedings. In the decision dated 14 February, 2020, it has been held that "it will be open to the award holder to make such prayer before the Arbitration Court in course of the award debtor's application for extension of time that is pending. It will also be open to the award debtor to seek permission to put in cash deposit instead of furnishing bank guarantee for the relevant amount." In the decision dated 6 October, 2020 it has been held that "Section 9 of the Act, particularly clause (e) of sub-section 1, is wide enough to allow an application for interim measure to be made to the Arbitration Court even after an order for stay of operation of the award, conditionally or unconditionally, has already been made. As to whether an order should be passed on such application would depend on the quality of the application and grounds which are cited." Hence, it is urged that the scope of Section 9 is wide enough to enable the Court to allow the award holder to withdraw the amount deposited upon furnishing of security. Insofar as the decisions cited on behalf of the respondent, it is submitted that, all the decisions were passed prior to the amendment to Section 36 of the Act and are distinguishable. Accordingly, in view of the amended Section 36 the Act, the Court under Section 9 of the Act has the power to pass orders as prayed for in the petition.

5. Section 9 of the Act provides as follows:

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