A court heard a case for 11 days. Then an arbitrator was appointed. Can the judge still pass orders?

A commercial court spent 11 days hearing an interim plea. Then, an arbitrator was appointed. The party argued: the judge can no longer pass orders. The Supreme Court said — no. The judge can finish the job.

On a Surat afternoon in June 2021, a commercial court judge closed his notebook. He had heard 11 days of arguments across 36 separate listings. Two of India's largest companies — Arcelor Mittal Nippon Steel and Essar Bulk Terminal — had fought over cargo, berths, and money at Hazira Port. The judge reserved his order. Then, a month later, an arbitrator was appointed. And the losing side made a startling argument: the judge's pen was now frozen. The Arbitration Act, they said, barred him from saying another word.

The one question the entire case turned on

Could a court that had already heard a case for 11 days and reserved its order be stripped of the power to deliver that order, simply because an arbitrator was appointed in the meantime? The answer would decide whether months of judicial time — and the parties' litigation costs — had been wasted.

When the cargo stopped moving

Arcelor Mittal and Essar Bulk Terminal had signed a Cargo Handling Agreement for operations at Hazira Port in Gujarat. The relationship soured. In November 2020, Arcelor Mittal issued an arbitration notice — the formal step that begins the process of resolving a dispute outside court through a private arbitrator.

Both sides then did what commercial parties routinely do: they rushed to court for interim relief — temporary orders to protect their position while the arbitration was pending. Under Section 9 of the Arbitration and Conciliation Act, 1996, a court can grant such relief: freezing assets, preserving goods, or preventing a party from taking irreversible steps before the arbitrator takes over.

Both companies filed their Section 9 applications before the Commercial Court in Surat. What followed was not a routine hearing. Over several months, the court heard arguments on 36 separate dates — an extraordinary 11 days of oral submissions. On June 7, 2021, the judge reserved his order.

The arbitrator arrives — and the argument shifts

On July 9, 2021, a three-member Arbitral Tribunal was formally constituted under Section 11 of the Act — the provision that allows a court to appoint arbitrators when parties cannot agree. Now the Tribunal existed. And Arcelor Mittal changed its strategy.

The company argued that once the Tribunal was in place, the Commercial Court could no longer pass any order on the Section 9 application. The reason: Section 9(3) of the Act, introduced by the 2015 amendment, states that once an arbitral tribunal is constituted, the court "shall not entertain" any new application for interim relief under Section 9. The party must instead go to the Tribunal under Section 17 — which gives the arbitrator the same power to grant interim orders.

Arcelor Mittal's logic was simple: the court had not yet pronounced its order when the Tribunal was formed. The Section 9 application was still pending. Therefore, the court was now barred from entertaining it.

Why the trial court and High Court disagreed

The Commercial Court rejected this argument on July 16, 2021. The judge held that the application had already been "entertained" — the court had applied its mind, heard full arguments, and reserved judgment. The bar under Section 9(3) did not apply to an application that was already fully heard.

Arcelor Mittal then approached the Gujarat High Court under Article 227 of the Constitution — the High Court's power to supervise subordinate courts. A Division Bench dismissed the petition on August 17, 2021, agreeing with the Commercial Court.

The company appealed to the Supreme Court.

What 'entertain' really means

The Supreme Court bench — Justice Indira Banerjee and Justice J.K. Maheshwari — took up the appeal on September 14, 2021. The core question was the meaning of a single word in Section 9(3): "entertain".

Arcelor Mittal argued that "entertain" meant the entire process from filing to final order. Since no final order had been passed before the Tribunal was constituted, the court could not proceed further. Essar Bulk Terminal countered that "entertain" meant the act of taking up the application for consideration — which had already happened over 11 days of hearings.

The Supreme Court agreed with Essar. The court held that "entertain" in Section 9(3) means taking up an application for consideration and applying judicial mind to the issues raised. It does not mean merely the filing or admission of an application. Nor does it refer only to the final pronouncement of judgment. The process of consideration begins when the court takes up the matter and applies its mind — not when it delivers the final order.

In its judgment, the Supreme Court clarified: "The expression 'entertain' in Section 9(3) of the Arbitration Act means taking up an application for consideration and applying judicial mind to the issues raised. It does not mean merely the filing or admission of an application, nor does it refer only to the final pronouncement of judgment." This definition — drawn from the court's ratio — settled the procedural dispute. Since the Commercial Court had already entertained the Section 9 application — heard it fully, applied its mind, and reserved orders — before the Tribunal was constituted, the bar under Section 9(3) did not operate. The court could proceed to complete adjudication.

The discretion that survives

The Supreme Court added an important nuance. Even when a Section 9 application has been entertained before the Tribunal's constitution, the court retains discretion to direct parties to approach the Tribunal under Section 17. This discretion may be exercised particularly where there has been a long gap between hearings, or where the hearing has just commenced and is likely to consume significant time. In such cases, the court may pass a limited order of interim protection while directing the parties to the Tribunal.

The court further held that Section 9(3) does not operate as an ouster clause that renders the court coram non judice — meaning, without jurisdiction — upon the Tribunal's constitution. It restricts entertainment of fresh applications post-constitution, but does not strip the court of jurisdiction over applications already taken up for consideration.

But in this case, the hearing was complete. The court had spent 11 days. The order was reserved. There was no reason to force the parties to start afresh before the Tribunal.

The Supreme Court allowed the appeal only to the extent of clarifying one point: the Commercial Court need not examine whether the relief available under Section 17 was equally efficacious. Since the Section 9 application had already been entertained and considered, the court could proceed directly to pass its order without comparing the two remedies.

What this means for every commercial dispute

For practitioners, the ruling settles a recurring procedural trap. If you file a Section 9 application and the court begins hearing it — even if no order is passed — the appointment of an arbitrator later does not automatically kill your application. The court retains jurisdiction to finish what it started.

But the ruling also carries a warning: if your hearing is only at the initial stage, the court may still send you to the Tribunal. The discretion cuts both ways. The Supreme Court made clear that even where the Section 9 application has been entertained, the court may, in appropriate cases — such as where hearings have just commenced — direct parties to the Tribunal under Section 17 while granting limited interim protection.

The decision also relied on several precedents, including Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors. (2021 SCC Online SC 557) and State Bank of India v. S.N. Goyal (2008), among others, to support its interpretation of the word "entertain" and the court's continuing jurisdiction.

THE PLAY: File your Section 9 application early and press for hearings before the arbitrator is appointed — once the court has applied its mind, the Section 9(3) bar cannot stop it from passing orders.

The 11 days in Surat were not wasted. The judge could still write his order.