The bar under Section 9(3) of Arbitration and Conciliation Act, 1996 is not an absolute bar, the Court can exercise jurisdiction under Sec. 9(1), even after the constitution of Arbitral Tribunal | Whatever interim measure that could be taken under Sec. 17 can be only between the parties to the agreement and not against the third parties – Sri Kauvery Medical Care (India) Ltd. Vs. CeeDeeYes Health Care Services (P) Ltd. and Anr. – Madras High Court
Hon’ble Madras High Court held that:
(i) Section 9(3) of Arbitration and Conciliation Act, 1996 is in two parts. The first part seeks to curtail the power on the Court with reference to entertaining an application for interim measure / interim protection after constitution of the Arbitral Tribunal. The second limb of the said section carves out an exception or is akin to a proviso which vests the discretion in the Court.
(ii) If the Court finds that the remedy provided under Section 17 is not efficacious, de hors the prohibition contained in the earlier part of the Section, the Court can exercise jurisdiction under Section 9(1), even after the constitution of the Arbitral Tribunal. To put it simply, there is no absolute prohibition on the exercise of jurisdiction under Section 9(1).
(iii) The bar under Section 9(3) is not an absolute bar but, is qualified and is subject to the finding that the remedy available before the Arbitrator is efficacious.
(iv) Whatever interim measure that could be taken under section 17 can be only between the parties to the agreement and not against the third parties.
