Case: Ultratech Cement Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited

the sale price determined under Section 9 (by way of an interim arrangement) of the Act. The arbitral awards also provided for an extension of the period of commercial activities between the parties for another 5 years, i.e., up to the year 2022.7. The question, that arises for adjudication before us is, as to whether the proceedings initiated under Section 9 of the Act, (whilst the arbitral proceedings were pending) survive, after the arbitral proceedings come to a closure. Insofar as the instant aspect of the matter is concerned, the answer thereto has to emanate from Section 9 of the Act. The above provision is extracted hereunder: "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-(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or(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.(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious." A perusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...”. It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced. 8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the saidperusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced.