Summary
The Court held that constitution of an arbitral tribunal did not require restarting fully heard Section 9 applications before the tribunal. To entertain meant taking the matter up with application of mind, rather than mere filing. The Commercial Court had already heard both applications and reserved orders before tribunal constitution, so it could complete adjudication without examining Section 17’s efficacy afresh. The appeal was allowed only to clarify that point; the direction to proceed otherwise remained. No substantive interim relief or cargo-handling liability was decided.
Issues
- When a Section 9 application is entertained for purposes of the restriction after tribunal constitution.
- Whether a court that had completed the hearing had to assess Section 17 efficacy or transfer the matter to the tribunal.
Provisions considered
- Section 9(1)–(3), read with Section 17, Arbitration and Conciliation Act, 1996The restriction applied when substantive consideration had not begun before tribunal constitution. Already entertained applications could proceed; Section 17 efficacy did not require fresh examination after the completed hearing here. (¶¶ 8, 10, 11, 63, 64, 65, 66, 67, 68, 88, 93, 94, 95, 96, 97, 98, 99, 100, 107, 108)
Held
- Section 17 supplied the tribunal with enforceable interim-measure powers, so after constitution a court ordinarily should not take up a Section 9 application unless that remedy was inefficacious. Mere pre-constitution filing was insufficient: entertaining required taking up the matter for consideration and applying the judicial mind. (¶¶ 63, 64, 65, 66, 67, 68, 83, 88, 89, 90, 91, 92, 93, 95)
- Once the court had entertained the applications before tribunal constitution, the restriction did not compel it to abandon adjudication. Here both applications were fully heard and reserved for orders beforehand. Requiring a repeat hearing before the tribunal would waste time and defeat urgent interim protection; a fresh Section 17-efficacy inquiry was unnecessary. (¶¶ 12, 13, 93, 94, 95, 97, 98, 99, 100, 107, 108)
- This was not an absolute obligation to retain every pending application. The court retained discretion to direct parties to the tribunal, potentially granting limited protection, particularly where a long interval required a fresh hearing or consideration had barely begun and would be lengthy. Genuine impediments could also render tribunal relief inefficacious, but self-created inability did not suffice. No disabling conduct by the respondent was established here. (¶¶ 73, 74, 75, 96, 100, 107)
- The appeal was allowed only to clarify that the Commercial Court need not examine Section 17 efficacy anew, having already entertained and considered the applications. The direction to complete adjudication otherwise stood. The Court did not decide the merits of the interim applications or underlying claims. (¶¶ 107, 108)
Result
Appeal allowed only for clarification: Commercial Court to complete Section 9 adjudication without a fresh Section 17-efficacy inquiry; impugned order otherwise undisturbed.