Relief U/S 9 A&C Act Can Be Granted Even After Filing Of Petition Seeking Enforcement & Recognition Of Foreign Award: Bombay High Court

Stressing on the absence of any statutory embargo and the protective object of Section 9 of the Act, the Court rejected the contention that initiation of Part II enforcement proceedings ousts the jurisdiction of courts exercising powers under the relevant Section, observing that interim measures may remain necessary to safeguard the award-creditor against dissipation of assets pending recognition.

Justice Somasekhar Sundaresan observed, “I am unable to agree with the contentions of the Respondent about the Section 9 Court having no jurisdiction once a Petition for recognition under Part II is filed. The Petition filed under Part II is first and foremost a petition for recognition and thereafter, without the need for another fresh set of proceedings being filed, upon the foreign award being conferred with the status of a decree under Section 49 of the Act, the proceedings would stand translated into execution proceedings. At least until that stage, it would be clear that even the submissions of schematic anomaly cannot be countenanced. It is after the stage at which the foreign award becomes a decree of an Indian Court that the words “but before it is enforced in accordance with section 36” used in Section 9(1) of the Act would present any basis for the Section 9 Court to refrain from entertaining prayers for any protective measures, since at that stage execution proceedings would have commenced, without the need to file a new set of proceedings”.

“…This is why the larger legislative purpose of Section 9 i.e. to protect the award-creditor, by indicating that jurisdiction is available even after making of an arbitral award, and the explicit scope of Section 2(2) i.e. to extend the scope of Section 9 to foreign award even after such awards are recognised in India, cannot be brushed aside and ignored”, it noted further.

Advocate Prathamesh N. Kamat appeared for the petitioner and Advocate Prachiti Naik appeared for the respondent.

An application seeking enforcement of an arbitral award passed in favour of a foreign shipping entity was the subject matter of the dispute. The judgment-debtor resisted enforcement, primarily contending that the petition suffered from delay and procedural lapses, and therefore ought to be dismissed at the threshold.

However, the Court declined to accept these objections, holding that enforcement proceedings under the Arbitration and Conciliation Act, 1996, particularly in relation to foreign awards, must be guided by a liberal and pro-enforcement approach. It observed that mere delay, in the absence of demonstrable prejudice or statutory bar, cannot be a ground to deny enforcement of a valid arbitral award.

Emphasising the limited scope of judicial interference, the Court reiterated that objections under Section 48 of the Act must be narrowly construed. “…if at all one were to ignore the positive statutory choice of not imposing a time limit on the operation of Section 9 to a foreign award, one would need see if any absurd consequence would emerge by letting Section 9 run its full course even after a Part II Petition is filed. It is notable that under Part II, the foreign award has to pass muster through the prism of Section 48 after the award-creditor applies for enforcement with evidence stipulated under Section 47, before it can be recognised as a decree. This entails a positive affirmation of recognition. Until such time, without a specific prohibition, the plain language of Section 9 cannot be ignored by making extrapolations of the reference to Section 36 and reading into it an unstated reference to Part II”, it noted.

The Court further clarified that procedural or technical objections should not be permitted to defeat substantive rights arising from an arbitral award, especially when India seeks to position itself as an arbitration-friendly jurisdiction aligned with international standards.

“Indeed, there could emerge a situation where the Section 9 Court is different from the Part II Court and there could be concurrent jurisdiction, but this by itself need not boggle the mind if it were a legislative scheme operating through the provisions of the Act. Indeed, the concurrent jurisdictions of Section 9 and Section 17 ran their course until Section 9(3) was inserted to provide that the Section 9 Court should ordinarily defer to the Section 17 jurisdiction exercised by the Arbitral Tribunal unless the remedy of Section 17 is not found efficacious. There being no such formulation in the statutory provisions to indicate that the concurrent jurisdictions of Section 9 and Part II must not operate, it is not for the Court to read into the scheme of the Act and refuse to exercise jurisdiction”, it noted further.

Accordingly, the Court allowed the enforcement petition, paving the way for execution of the foreign award in India.

Cause Title: Osterreichischer Lloyd Seereederei (Cyprus) Ltd. v. Victore Ships Pvt. Ltd. Commercial Arbitration Petition No. 398 OF 2025

Appearances:

Petitioner: Prathamesh N. Kamat, Shiv Iyer, Ankita Sen, Arpeeta Panvalkar, Vishesh R. Kulkarni and Kayush Zaiwalla i/b Renata Partners, Advocates.

Respondent: Prachiti Naik, Tanaya Patankar, Manish Rai, Laxmi Yadav, Authorized Representative, Advocates.

Click here to read/download the Judgment