Point of Law: Section 47 of the CPC deals with the determination of questions arising between the parties to a suit in which a decree is passed. All such questions, mandates the provision, would be decided by the executing court, and not by way of a separate suit.

JUDGMENT :

(By Video Conference on account of COVID-19)

1. What, exactly, is the “fruit” of an arbitral proceeding?

2. In a somewhat intricate fashion, this question arises for consideration in the present case, which presents an interesting conundrum regarding the scope of Section 9(1)(ii)[ 9. Interim measures, etc., by Court.—

(1) 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 –

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(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.] of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”), when invoked at a postarbitral stage.

3. Section 9 provides for grant of interim measures of protection by a Court. It is well known that the provision is, more often than not, invoked at the pre-arbitral stage, before arbitral proceedings commence. This, however, is a case where an arbitral award stands rendered, and the petitioner, claiming to be the successful litigant before the learned arbitrator, seeks interim protection after the award has been rendered.

4. The vast majority of judgments on Section 9 relate to its scope and ambit at the pre-arbitral stage. The peripheries of Section 9 jurisdiction, when invoked at a post-award stage, stand delineated in the following extract from the judgment of the High Court of Bombay (through Dr Chandrachud, J., as he then was), in Dirk India Pvt Ltd v. Maharashtra State Power Generation Co. Ltd:

“The second facet of Section 9 is the proximate nexus between the orders that are sought in the arbitral proceedings. When an interim measure of protection for sought before or during the arbitral proceedings, such a measure is a step in aid of the fruition of the arbitral proceedings. When sought after an arbitral award is made but before it is enforced, the measure of protection is intended to safeguard the fruit of the proceedings until the eventual enforcement of the award.

Here again the measure of protection is a step in aid of enforcement. It is intended to ensure that enforcement of the award results in a realisable claim that the award is not rendered illusory by dealings that would put the subject of the award beyond the pale of enforcement.”

This passage has received the imprimatur of the Supreme Court, having been cited, approvingly, in Hindustan Construction Co Ltd v. U.O.I., AIR 2020 SC 122, as correctly delineating the scope of Section 9 jurisdiction, when invoked at a post-award stage.

5. Interestingly, both sides, before me, rely on this extract from Dirk India, 2013 (7) Bom CR 493. Mr. Sibal, learned Senior Counsel for the petitioner, contends that if interim protection, as sought in this petition, is not granted, the award, rendered in favour of his client by the learned arbitrator, would be rendered unenforceable. This, according to him, justifies grant of interim protectio