Section 9 interim relief in foreign-seated arbitration is maintainable, but security requires strong proof of award frustration.

Section 9 interim relief is available in aid of a foreign-seated international commercial arbitration, and the absence of assets in India is not a precondition for maintainability because interim measures may include preservation or securing orders. Relief to secure the amount in dispute, however, is exceptional and must be supported by a strong prima facie case and material showing a real risk that the respondent may defeat any future award. On the facts, the allegations were insufficiently supported and the risk of frustration was not established, so protective security was refused.

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Issues: (i) Whether a petition under Section 9 of the Arbitration and Conciliation Act, 1996 was maintainable in aid of a foreign seated international commercial arbitration where the respondent had no assets in India; (ii) Whether the petitioner had made out a case for securing the amount in dispute by interim protection.

Issue (i): Whether a petition under Section 9 of the Arbitration and Conciliation Act, 1996 was maintainable in aid of a foreign seated international commercial arbitration where the respondent had no assets in India.

Analysis: The proviso to Section 2(2) applies Section 9 to international commercial arbitrations seated outside India, subject to agreement to the contrary and subject to enforceability under Part II. The Court held that the object of the amendment was to permit parties to seek interim protection in India in foreign seated arbitrations. The availability of assets in India was held not to be a precondition for maintainability of a Section 9 petition, because interim measures may include preservation orders, custody orders, or directions securing the amount in dispute, none of which necessarily depend on the existence of assets in India.

Conclusion: The petition was maintainable and the objection to jurisdiction was rejected.

Issue (ii): Whether the petitioner had made out a case for securing the amount in dispute by interim protection.

Analysis: Relief under Section 9, especially for securing the amount in dispute, must be guided by the principles underlying Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908, and granted only in exceptional cases. The petitioner was required to show a reasonably strong prima facie case and material demonstrating that the respondent was likely to defeat realization of any future award. The Court found that the disputes on merits were contested and could not be resolved in the petition, and that the petitioner's allegations were unsupported by adequate material. The case was not shown to be one where the respondent was likely to fritter away assets or render the arbitral proceedings infructuous.

Conclusion: The petitioner failed to justify interim security and the request for protective relief was rejected.

Final Conclusion: The petition was maintainable, but no interim measure securing the claimed amount was warranted on the facts, so the petition was dismissed.

Ratio Decidendi: In a foreign seated international commercial arbitration, Section 9 relief is maintainable even if the respondent has no assets in India, but an order securing the amount in dispute can be granted only on a strong prima facie case and adequate material showing a real risk of frustration of the future award.

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