Section 9 Jurisdiction Remains Available Even After Part II Petition Is Filed; Bombay High Court Directs Deposit and Asset-Freeze to Secure Foreign Award

A Single Judge bench of Justice Somasekhar Sundaresan heard a Section 9 petition under the Arbitration and Conciliation Act, 1996 filed by Osterreichischer Lloyd Seereederei (Cyprus) Ltd. seeking interim protective measures to secure a foreign arbitral award for USD 269,105.08, alongside related enforcement and contempt proceedings against Victore Ships Pvt. Ltd. The principal issue concerned whether a court’s jurisdiction under Section 9 continued once a Part II petition for recognition and enforcement of a foreign award was filed.

The Court held that Section 9 remained available even after a Part II petition for recognition and enforcement was filed and that the Section 9 Court could grant protective measures until a foreign award attained the status of a decree by positive recognition under Part II. The Court quoted the statutory trigger for Section 9, noting that “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—” and distinguished the treatment of domestic awards (which become decrees on expiry of the Section 34 challenge period or on refusal of stay under Section 36) from foreign awards (which require the Part II court’s satisfaction under Section 49 before becoming a decree). The Court, in its reasoning, observed: “Therefore, 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.”

Background The petitioner sought interlocutory relief under Section 9 to secure enforcement of a foreign award dated March 23, 2020 for USD 269,105.08. The petitioner had separately filed a Part II enforcement petition (Commercial Arbitration Petition No. 403 of 2025) for recognition and execution of the foreign award. The respondent contended that once Part II proceedings were initiated, Section 9 relief was no longer available because Part II proceedings rolled recognition and enforcement into one process and, once an award was capable of enforcement, the remedy under Section 9 would be barred; counsel relied on Centrient and on decisions such as Fuerst Day Lawson and LMJ International. The petitioner relied on earlier Bombay High Court authority (Heligo Charters) and on the statutory text to argue that Section 9 was expressly made applicable to foreign awards by Section 2(2) and remained available “but before it is enforced.”

The Court analyzed Sections 2(2), 9(1), 36 and the Part II provisions (Sections 46–49). It explained that domestic awards attain decree status by operation of Section 36 on expiry of the Section 34 challenge period or by rejection/refusal to stay, whereas foreign awards obtain decree status only when the Part II court “is satisfied that the foreign award is enforceable” under Section 49. The Court found no textual basis to read a temporal bar into Section 9 for foreign awards once a Part II petition was filed, and it declined to import the domestic enforcement scheme into Part II. The Court dismissed the respondent’s jurisdictional objection as without merit.

On the merits of interim relief, the Court directed that the respondent deposit USD 269,105.08 in its Indian rupee equivalent with the court registry within four weeks, prohibited the respondent from selling, disposing, alienating, encumbering or creating third‑party interests in its movable and immovable property (save to generate proceeds to make the deposit), and ordered an affidavit disclosure of assets within two weeks as per Exhibit‑V to the petition. The Court expedited the Part II enforcement petition to be listed within two weeks of upload of the judgment. The Section 9 petition was disposed of subject to these directions; the Part II petition was to be listed for hearing within two weeks.

Case Details: Case No.: Commercial Arbitration Petition No. 398 of 2025; (record reference 2026:BHC-OS:6178) Case Title: Osterreichischer Lloyd Seereederei (Cyprus) Ltd. v. Victore Ships Pvt. Ltd. Appearances: For the Petitioner(s): Mr. Prathamesh N. Kamat a/w. Mr. Shiv Iyer, Ms. Ankita Sen, Ms. Arpeeta Panvalkar, Mr. Vishesh R. Kulkarni and Mr. Kayush Zaiwalla i/b Renata Partners For the Respondent(s): Mr. Vishal Kanade a/w. Ms. Prachiti Naik, Ms. Tanaya Patankar i/b Adv. Manish Rai; Ms. Laxmi Yadav (Authorized Representative of Respondent)