Section 9(2) And The 90-day Limitation – No Automatic Termination Of Interim Protection

Introduction 

The courts are vested with powers under Section 9 of the Arbitration & Conciliation Act, 1996 (“Act”) to grant interim measure of protection before or during arbitral proceedings or at any time after the making of an arbitration award but before it is enforced. By way of amendment in 2015 (“2015 Amendment”), Section 9(2) was inserted in the principle Act mandating that where, before the commencement of arbitral proceedings, the Court passes an order for any interim measure of protection under Section 9(1) of the Act, the arbitral proceedings shall be commenced within a period of ninety (90) days from the date of such order or within such further time as the Court may determine.  

Recently, the question for consideration before the Hon’ble High Court of Kerela in Health Resorts International Pvt. Ltd. v. Marriot Hotels India Pvt. Ltd.1 was whether the failure to commence arbitral proceedings within ninety (90) days after the first interim order was passed will result in termination of the entire proceedings. This article dissects the recent views of Division Bench(es) of the Hon’ble Madras High Court and Hon’ble High Court of Kerela respectively on the application of Section 9(2) of the Act. The article also discusses the law laid down in Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd.2.  

View of the Hon’ble High Court of Madras – Judgment dated 16.11.2017 

The Division Bench of Hon’ble Madras High Court in Archer Power Systems Private Limited v. Kohli Ventures Limited3 observed that the law is well settled that the arbitration proceedings has to be initiated within ninety (90) days after the interim order and held that “if a party chooses to move a court purportedly under section 9 of the a and c act before the commencement of arbitral proceedings, such a party should take all and every effort to demonstrate its intention to commence arbitral proceedings.”. The Hon’ble Court further held that the party which files an application under Section 9 of the Act before the Court and obtains an interim order cannot “eternally squat” on the interim order without commencing arbitral proceedings.  

The Hon’ble Court held that the applicant had not done anything towards commencement of arbitral proceedings and when the interim order was suspended / vacated by the Hon’ble Court, the applicant did not invoke the arbitration clause even when the interim order was vacated. It was only one day before filing the appeal challenging the vacation of interim order that the applicant invoked the arbitration clause.  

The Hon’ble Court held that “Manifest intention to arbitrate is a sine qua non for moving the Court under Section 9 of the A and C Act and obtaining the interim order when Section 9 application is moved before commencement of arbitral proceedings.”  

 View of the Hon’ble High Court of Kerela – Judgment dated 18.01.2018 

The Division Bench of the Hon’ble High Court of Kerela in Manosh Elias Constructions Pvt. Ltd. v. Manual John & Ors.4 took the issue of Section 9(2) of the Act further and held that any interim measure of protection passed by the Courts in view of the powers vested under Section 9(1) of the Act is subject to commencement of arbitral proceedings within ninety (90) days from the date of such order or within such further time as the court may determine.  

The Hon’ble High Court of Kerela further, relying on Sundaram Finance Ltd. v. NEPC India Ltd.5, held that parties who had succeeded in securing an interim measure of protection before commencement of arbitral proceedings cannot be allowed to sit and sleep over the relief and conveniently forget the “proximity contemplated” or “manifestly intended”, arbitral proceedings.  

The Hon’ble Court, in this case, upheld the finding rendered by the District Court as justifiable and sustainable that the applicant in the Section 9 proceedings failed to initiate arbitral proceedings within a period of 90 days from the date of conditional order of attachment and also failed to seek extension of time under Section 9(2) of the Act.  

 Finding of the Hon’ble High Court of Kerela in Health Resorts International Pvt. Ltd. v. Marriot Hotels India Pvt. Ltd. (2025)  

An application under Section 9 of the Act before the Commercial Court II, Thiruvananthapuram, Kerela led to two interim orders dated 04.05.2023 prohibiting transfer of shares of the Petitioner company and prohibiting alienation of the property respectively. As contended by the Petitioner herein i.e. Health Resorts International Pvt. Ltd., the entire proceedings were liable to be set aside since arbitral proceedings were not commenced within ninety (90) days from the first interim order(s) dated 04.05.2023 coupled with the contention that the court has also not granted any extension of the period for commencing the proceedings.  

The Respondent i.e. Marriot Hotels India Pvt. Ltd. submitted that the proceedings under Section 9 of the Act did not stop with the first order of interim relief i.e. Order(s) dated 04.05.2023 and the same continued in the form of petitions seeking action against violation of the said interim order(s). Hence, it was argued before the Hon’ble Court that petitions seeking action against violation of the interim order and the proceedings thereunder should be treated as extension of time under Section 9(2) of the Act.  

The Hon’ble High Court held that the interim order granted would amount to an extension of interim proceedings under Section 9 of the Act. The Hon’ble High Court interpreted Section 9(2) of the Act and held that the Statute only states that arbitration proceedings should be commenced within a period of 90 days from the date of an order of any interim order of protection and it does not say that arbitral proceedings should be started within 90 days of the first order issued under Section 9(1) of the Act.  

The Hon’ble Court further held that the intention rendered by the Statute is a measure of protection in reality and that is the very reason why the Statute has specifically stated that time can be extended by the Court thereby ensuring that real protection has been granted. Consequently, the Hon’ble High Court held that failure in commencement of arbitration within the statutory limitation period of ninety (90) days does not automatically terminate the proceedings under Section 9 of the Act or does not nullify the interim measure of protection granted thereunder until the substantive rights are protected and such measure of real protection is granted. The Court affirmed that any narrow interpretation would defeat the intent of the statute so provided under Section 9 of the Act and dismissed the petition being devoid of merit.  

 Author’s Note & Conclusion 

 This article explores a critical intersection of procedure laid down in Section 9(2) of the Act and the substantive justice. It is not uncommon to challenge the invocation of arbitration proceedings in case such arbitration proceedings are being invoked after a lapse of ninety (90) days as provided under Section 9(2) of the Act. However, this recent judgment of the Hon’ble High Court of Kerela has addressed an important aspect by highlighting the circumstances in which, 90 days’ period mentioned in Section 9(2) of the Act is not applicable. Equally, the parties are not allowed to sit and sleep over the relief in Section 9 proceedings by not commencing arbitration proceedings. In case, a party encounters any challenge to commence arbitration proceedings after securing an interim protection under Section 9 of the Act, such party may approach to the Court as an abundant caution seeking extension of time to commence arbitration proceedings.  

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