4.1 What we understand about Sundaram Finance, Ashok Traders and SBP are that Section 9 of the A-C Act is invoked to guarantee provisional protection of a court, that such protection may be of interest to a party to an arbitration agreement, that such proceedings may be initiated or continued before or during arbitration proceedings, and that these proceedings are independent of arbitration proceedings. This view has also been accepted throughout the legal community in India. 18… [SMS Tea Estates] notes that if a compromise clause is included in an agreement or promotion, there are different consequences depending on whether the agreement or transport is not registered or not stamped… It is difficult to agree with the argument of the lawyer formed on behalf of the respondent that … an arbitration agreement has an existence independent of its own … The issue of the jurisdiction of specialized tribunals for disputes arising from the agreement, in which the parties agreed to an arbitration mechanism, has been the subject of much discussion and interpretation by various courts on various occasions. To understand the arbitration and the intention of the legislature to make such an order, one can refer to the preamble of the law. The preamble to the 1996 Arbitration Act is as follows: However, if the issue of ”ability to arbitrate” in a section 8 application arises in a pending appeal, all aspects of conciliation must be decided by the court before the appeal and cannot be left to the arbitrator`s decision.
Even if there is an arbitration agreement between the parties, and even if the dispute is covered by the arbitration agreement, the court where the civil action is pending will reject a motion under section 8 of the act to refer the parties to arbitration if the subject of the appeal can only be decided by a public forum or if the discharge sought can only be granted to a special court or tribunal. This section, like Section 9 of the [A-C] Act, recognizes a request to a court for an injunction to be issued prior to arbitration. It is possible that in some countries, if a party has been brought before the court to seek a protection injunction, this could be interpreted under local law so that that party had waived its right to arbitration. Section 9 of the UNCTS Model Law is intended to clarify that such an appeal would not be considered incompatible with an arbitration agreement solely on the basis that a party to an arbitration agreement seeks an injunction from the court ”before or during arbitration proceedings”. In other words, arbitration can begin and continue, regardless of the appeal to the court for a referral order. The language of Section 9 of the Act [A-C] is not identical to section 9 of the UNCLOS Model Act, but the phrase ”before or during an arbitration procedure” used in section 9 of the Act [A-C] appears to have been inserted to give it the same meaning as in those terms of section 9 of the UNCIC Model Law. It is therefore clear that a party to an arbitration agreement may approach the Court of Referees, not only during the arbitration process, but before the arbitration. In this regard, Section 9 of Section 9 of the UNCIT Model Act is similar. The nature and scope of the issues raised in a section 11 motion of the Arbitrators For Review Act are much narrower than those raised in a section 8 motion in which the parties are subject to an arbitration appeal.