INTERIM MEASURES:

APPLICABILITY OF CPC

1. The court has held that, relevant provision of the CPC must be taken into consideration
by the tribunal while granting interim measures, in the present case, the principles of
Order 5 Rule 38 of CPC must be followed.
“Where even the Court exercising power under Section 9 of the Act has to be guided by
the principles of the CPC then a fortiori an interim order by a Tribunal requiring
furnishing of security for the monetary amount of claim by one party had to satisfy the
requirement of Order XXXVIII Rule 5 CPC.”1

STANDARDS AS PER THE CPC:

2. Principles of attaching property as per O38 R5 :

i. Circumstances exists to satisfaction of the court
ii. Mere fact that no harm would be done by attaching the property is not a justified
reason.
iii. Contentions of the applicants must not be ague and shall be verified.
iv. Mere allegation that the defendant is selling the property would not be sufficient.
v. The affidavit filed by the applicant must clearly establish that the defendant, with
intent to obstruct or delay the execution of the decree that may be passed against
him is about to dispose of the whole or any part of his property.2
3. The essential condition for the party seeking relief under Order XXXVIII Rule 5 CPC is
to show that the Defendant is about to dispose of or to remove the whole or any part of
his property from the local limits of the Court.”3
4. The High court has held that, the court should be satisfied that the plaintiff has a prima
facie case. If the averments in the plaint and the documents produced in support of it, do
not satisfy the court about the existence of a prima facie case, the court will not go to the
next stage of examining whether the interest of the plaintiff should be protected by
exercising power under Order 38 Rule 5 CPC. 4

STANDARDS AS PER ARBITRATION ACT:

1. The power of the Arbitral Tribunal to grant interim relief is not less than that of a regular
Court, which has the power to grant interim order under Section 9 of the Act. Section
17(1) (b) and (e) of the Act contain expressions that are of great import.5

1
Intertoll Ics Cecons. O & M Co. Pvt. Ltd V National Highways Authority Of India. Para 32
2
Mulla on CPC page 3345
3
Intertoll Ics Cecons. O & M Co. Pvt. Ltd V National Highways Authority Of India. Para 32
4
Raman Tech. & Process Engg. Co. & Anr. Vs.Solanki Traders, 2008 (2) SCC 302).
5
Sundaram Finance Ltd vs P.Sakthivel on 17 September, 2018 para 12
 2. The power of arbitral tribunal and the court with respect to passing the interim order, and
hence similar standards can also be applied to both the proceedings.
“12. As rightly contended by the learned Senior counsel appearing for the Revision
petitioner, the power of the Arbitral Tribunal to grant interim relief is not less than that
of a regular Court, which has the power to grant interim order under Section 9 of the
Act. Section 17(1) (b) and (e) of the Act contain expressions that are of great import. The
Arbitral Tribunal can pass an order for securing the amount in dispute in the arbitration
and can order such other interim measure of protection, as may appear to it to be just
and convenient. It is also made clear that the Arbitral Tribunal shall have the same
power for making orders as a Court has for the purpose of and in relation to any
proceeding before it.”.6
3. In order to grant interim order by the court under section 9 the test of prima facie case,
balance of convenience, irreparable loss has to be borne in mind before the Court can
make an order in the nature of granting interim orders.
“It is not possible to keep out the concept of balance of convenience, prima facie case,
irreparable injury and the concept of just and convenient while passing interim measures
under Section 9 of the Act.” 7
4. The standards for interim measure in international commercial arbitration is8 :
1) Risk of “irreparable” or serious “injury”
2) Urgency
3) Prima facie case:
i. It is a preliminary assessment of the claim of the parties.
ii. It is not an assessment of the merits of the claim, but a prima facie analysis of
the existence of a legitimate claim by the party seeking such measures.
iii. To establish a prima facie case the basic Elements of breach of contracts need
to be established, a prima facie case for breach of contract requires that the
plaintiff show: (1) a contract between the parties; (2) a breach of that contract;
and (3) damages resulting from the breach.9
4) Balance of convenience: In the present case, the loss of profit (as a result of loss of
rent ) arising out of the building in dispute would further increase, tilting the balance
of convenience against attaching the said property.

6
Id
7
Adhunik Steels Ltd vs Orissa Manganese And Minerals para-
8
Gary born in his commentary on International Commercial Arbitration at page 2478
9
Coyle v. Englander’s, 199 N.J. Super. 212, 223 (App. Div. 1985); Frederico v. Home Depot, 507 F.3d 188, 203 (3d
Cir. 2007)