Section 9 Petition Treated as Section 17 Application Following Consensual Appointment of Sole Arbitrator

The Petitioner, Nitigya Buildcon Pvt. Ltd., approached the High Court seeking interim measures under Section 9 of the Arbitration and Conciliation Act, 1996, specifically requesting the removal and possession of its tools and materials from the Respondent's site and a joint measurement of the same

The dispute arose from a Contract Agreement dated 25.04.2022, which included an arbitration clause

During arguments, both parties reached a consensus (ad idem) to refer their disputes—estimated at a total value of Rs. 25 crores including counterclaims—to a Sole Arbitrator

1. Whether the Court can dispense with the requirement of a separate Section 11 application and appoint a Sole Arbitrator based on the mutual consent of parties during Section 9 proceedings

2. Whether a Section 9 petition can be converted and treated as an application under Section 17 for adjudication by the Arbitral Tribunal

The Court primarily applied Section 9 of the Arbitration and Conciliation Act, 1996, concerning interim measures by the Court

It utilized the principles of Section 11 regarding the appointment of arbitrators, holding that formal separate proceedings can be dispensed with when parties mutually consent to a reference

The Court further applied Section 17, which allows an Arbitral Tribunal to grant interim relief, by directing the conversion of the present petition

Procedurally, the Court relied on Section 12(2) regarding mandatory arbitrator disclosures and the rules of the Delhi International Arbitration Centre (DIAC) for the conduct of proceedings and fee structures

The Court noted that since both parties consented to arbitration, the initiation of the process should not be "unduly delayed" by procedural formalities

By dispensing with a separate Section 11 petition, the Court aimed to expedite the resolution of the Rs. 25 crore dispute

Regarding the interim reliefs sought (possession and measurement of tools), the Court reasoned that since an Arbitrator was being appointed, these issues should be decided by the Tribunal itself

To facilitate this, the Court converted the Section 9 petition into a Section 17 application, ensuring the Arbitrator has the immediate mandate to pass directions upon entering the reference

The Court maintained neutrality by clarifying that it expressed no opinion on the merits and kept all jurisdictional objections open for the Tribunal

The Court directed that the Section 9 petition be treated as an application under Section 17 for the Arbitrator’s consideration

It ordered that arbitration costs be shared equally and mandated the Arbitrator to provide disclosures within one week of the reference

The petition was disposed of with all rights and contentions of the parties kept open