Interim relief in arbitration travels on two parallel tracks: the court under Section 9 of the Arbitration and Conciliation Act, 1996, and the arbitral tribunal under Section 17. In Union of India v. Hariom Projects Pvt. Ltd. (Civil Appeal arising out of SLP (C) No. 33087 of 2026, decided 18 September 2026), the Supreme Court — Justices Aravind Kumar and Prasanna B. Varale — held that these tracks do not merge: a High Court cannot transfer a pending appeal under Section 37 to the arbitral tribunal and direct that it be decided as a Section 17 application, because the tribunal does not exercise appellate jurisdiction over court orders.
The dispute
Hariom Projects held a works contract with the Union of India for infrastructure work at the National Defence Academy, Khadakwasla. Disputes over payment adjustments and design changes went first to a Dispute Resolution Board, which rejected the contractor’s claims; arbitration was then invoked. In the meantime the contractor sought interim protection from the court under Section 9, was unsuccessful, and carried the refusal in appeal under Section 37. While that appeal was pending, the Union terminated the work order on 3 January 2026.
The High Court stayed the termination, appointed an arbitrator by consent of the parties, and then took the step that reached the Supreme Court: it directed that the pending Section 37 proceedings stand remitted to the newly constituted arbitral tribunal, to be treated as an application under Section 17.
What the Supreme Court held
The Supreme Court found no fault with the consent appointment of the arbitrator, but set aside the remittal. In the Court’s words, “the direction contained in the impugned order remitting the proceedings pending before the High Court to the Arbitral Tribunal and requiring them to be treated as an application under Section 17 of the Act cannot, however, be sustained.” The reason is structural: “the nature and source of the powers exercised by an appellate Court under Section 37 are distinct from the powers conferred upon an Arbitral Tribunal under Section 17.”
A Section 37 court examines the correctness of a judicial order under Section 9. A Section 17 tribunal exercises an original, not appellate, jurisdiction — it forms its own view on interim protection within the arbitration. Handing a half-finished appeal to the tribunal collapses that distinction and, in substance, makes the tribunal an appellate authority over a court. Even the parties’ consent cannot achieve that, because appellate jurisdiction is a creature of statute, not agreement.
The architecture, at a glance
| Route | Forum | Nature of power | Challenge lies to |
|---|---|---|---|
| Section 9 | Court | Original — interim measures before/during arbitration | Appeal under Section 37(1)(b) |
| Section 17 | Arbitral tribunal | Original — interim measures during proceedings | Appeal under Section 37(2)(b) |
| Section 37 | Appellate court | Appellate — reviews the order below | Article 136 (special leave) |
Why the line matters
Since the 2015 amendment, Section 9(3) has nudged parties towards the tribunal once it is constituted: courts “shall not entertain” fresh Section 9 applications unless tribunal-granted remedies would be inefficacious. That policy of deference is sometimes read too broadly, as though everything interim must migrate to the tribunal the moment it exists. Hariom Projects corrects the overreach. Migration applies to fresh requests for interim protection, not to pending judicial proceedings testing an order a court has already made.
Practical pointers for parties mid-arbitration:
Treat a lost Section 9 as a matter for Section 37 appeal, filed within limitation, and prosecute it in court — do not expect the tribunal to redo it. If circumstances have genuinely changed after the Section 9 order, a fresh Section 17 application on the new facts is legitimate and is decided by the tribunal on its own merits. And when negotiating consent orders on arbitrator appointment, resist clauses that purport to transfer pending court proceedings to the tribunal — after this judgment, such directions are unsustainable.
The decision keeps the supervisory and adjudicatory spheres of arbitration law in their proper places: courts review courts, and tribunals decide the dispute. For Delhi practitioners handling infrastructure and government contracts, where parallel Section 9, Section 17 and Section 37 proceedings are routine, the clarity is valuable.
Frequently Asked Questions
What is the difference between Section 9 and Section 17 of the Arbitration Act?
Section 9 empowers a court to grant interim measures before, during, or after arbitral proceedings (before enforcement of the award). Section 17 gives the arbitral tribunal, once constituted, the power to grant similar interim measures during the proceedings. After the 2015 amendment, a Section 17 order is enforceable like a court order, but the two powers flow from different sources.
Can an arbitral tribunal modify or override a court's Section 9 order?
No. The Supreme Court has now made clear that the tribunal under Section 17 does not sit in appeal over a Section 9 determination. A party dissatisfied with a Section 9 order must appeal under Section 37(1)(b); it cannot instead ask the tribunal to take a different view of the same relief as though it were an appellate forum.
Can parties consent to the tribunal deciding what a court was deciding?
Consent cannot confer appellate jurisdiction that the statute does not give. In Hariom Projects, the arbitrator had been appointed by consent, yet the Supreme Court still set aside the direction remitting the pending Section 37 appeal to the tribunal as a Section 17 application, because the nature and source of the two powers are distinct.
Does this stop a party from applying afresh under Section 17?
No. Once a tribunal is constituted, a party may always move a fresh Section 17 application on the materials and circumstances then existing, and the tribunal decides it independently. What it cannot do is re-examine or reverse the court's Section 9 order as if hearing an appeal from it.