Expanding Interim Relief or Expanding Uncertainty?

[Shivanshi is a student at Institute of Law, Nirma University, Ahmedabad.]

 India’s arbitration framework has long been positioned as a faster and more efficient alternative to traditional litigation. Yet, this promise increasingly appears strained. Even though we see the Courts in India take a pro-arbitration stand, especially during enforcing the foreign awards with notable examples such as in the case of Nagaraj V. Mylandla v. PI Opportunities Fund-I and Others, while upholding a foreign award stated that it is the sovereign commitment on India to honour foreign awards, however at a not so far end we see the litigators exhausting every remedy possible till the execution stage raising objections and against this backdrop, the Supreme Court’s recent decision in Home Care Retail Marts Private Limited v. Haresh N Sanghavi (Home Care Retail) marks a significant doctrinal development in the realm of arbitration. The court clarified that even an unsuccessful party in arbitration may invoke Section 9 of the Arbitration and Conciliation Act 1996 (Act) at the post-award stage. While the judgment resolved a long-standing conflict among High Courts and corrected a restrictive interpretation of the provision, it also raised deeper concerns.

This author argues that the ruling is not merely a clarification of locus standi under Section 9, but a conceptual shift in the function of interim relief. At the same time, by expanding access to post-award judicial intervention without articulating clear limiting standards, the judgment risked prolonging the lifecycle of arbitration disputes and exacerbating systemic inefficiencies within India’s already overburdened arbitration framework.

A Conceptual Shift: From "Fruits of the Award" to "Preservation of the Dispute"

Prior to this decision, the dominant line of authority, Dirk India Private Limited v. Maharashtra State Electricity Generation Company Limited, confined post-award interim relief under Section 9 to protecting the "fruits of arbitration." On this view, a Section 9 petition was not maintainable once a Section 34 challenge was pending, because interim protection was understood to exist solely to secure enforcement for a successful party.

The Supreme Court in Home Care Retail rejected this approach, holding that "a party" under Section 9 must be read in its plain statutory sense and cannot be narrowed based on the outcome of the arbitration. More significantly, it redefined the purpose of the provision by stating that interim measures are not limited to securing enforceability, but extend to protecting the "subject matter of arbitration" and the "amount in dispute." Section 9 is thus no longer an enforcement-support mechanism triggered only once an award is passed; it becomes a continuity tool that preserves the dispute and the parties' underlying rights even after the award.

The court's reasoning rests on two limbs: firstly, that an award may be set aside, modified or severed under Section 34, drawing on the ruling in Gayatri Balasamy v. ISG Novasoft Technologies Limited, that courts can modify awards rather than merely uphold or set them aside; and secondly, the possibility of fresh arbitration proceedings under provisions such as Section 43(4) of the Act. Together, these dissolve the binary between "successful" and "unsuccessful" parties; a party who has lost may yet succeed on challenge or in a fresh reference, and denying it interim protection could render that eventual success illusory. The reasoning is doctrinally persuasive, but it expands the temporal and functional scope of Section 9 with consequential effects.

Extending the Lifecycle of Arbitration

An arbitration's lifecycle in India already runs through Sections 9, 11, 34, 36 and 37 of the Act, an SLP to the Supreme Court, and finally objections under Section 47 of the Civil Procedure Code 1908 at the execution stage. By permitting unsuccessful parties to invoke Section 9 even after the award, the court adds another layer to this structure.

The court sought to distinguish Section 9 from Sections 34 and 36(2) as operating in distinct spheres, noting that the mere availability of a Section 34 challenge, or the automatic stay on enforcement under Section 36(2) of the Act, does not bar a Section 9 application. But this formal separation may not translate into practical clarity. Sections 34 and 36(2) already function as safeguards for the unsuccessful party, as the award's fate is determined on the culmination of the Section 34 petition, and enforcement is stayed until then. Layering Section 9 on top of these existing protections risks procedural overlap and strategic, parallel litigation rather than genuine relief.

The empirical picture makes the stakes concrete. Section 34 petitions in Indian High Courts reportedly show 54.20% pendency across 6,982 cases, with an average disposal time of 36.88 months; Section 9 petitions show 17.15% pendency across 20,819 cases.  Arbitration risks becoming litigation by stages, with the award reduced to an intermediate step in a prolonged judicial process.

The Undefined Discretion Problem: "Rare and Compelling Cases"

Recognising the ordinary Section 9 threshold as a prima facie case, irreparable harm, and balance of convenience, the apex court in Home Care Retail added a further qualification. The court stated that interim relief for unsuccessful parties should be granted only in "rare and compelling cases," subject to a higher bar. The court did not define what makes a case "rare and compelling," nor did it lay down a structured test.

Recently, in National Projects Construction Corporation Limited v. Ishvakoo (India) Private Limited (National Projects), the Supreme Court applied Home Care Retail to confirm a Delhi High Court order directing an award holder to refund an amount realised by encashing bank guarantees, holding that the case met the rare and compelling threshold because the relief was necessary to prevent irreparable prejudice and preserve the efficacy of the pending Section 34 challenge. The application of the standard shows it is not unworkable, but it does not tell us what the standard is. The existing thresholds of prima facie case, balance of convenience and irreparable harm are themselves judicially developed; layering an undefined threshold on top of them adds discretion upon discretion without legislative guidance, and National Projects fills the gap only by example, one case at a time.

The practical risk is strategic use. In the absence of clear thresholds, parties in high-value commercial disputes may increasingly invoke Section 9 post-award as a tactic rather than out of genuine need for protection. Even where relief is ultimately denied, the mere filing of such an application can delay proceedings, impose costs and pressure the opposing party. The court's attempt to balance competing interests through an open-ended standard may therefore introduce exactly the uncertainty it sought to avoid.

Model Law Divergence and the Fairness-Finality Trade-off

A notable feature of Home Care Retail is its emphasis on India's departure from the UNCITRAL Model Law. Unlike Article 9 of the Model Law, which permits interim measures only before or during arbitral proceedings, Section 9 explicitly extends to the post-award stage a divergence the court treats as a deliberate legislative choice to broaden the scope of interim relief. The Model Law framework is designed to minimise judicial intervention and preserve the arbitral process's autonomy; the Indian regime, by contrast, creates an additional entry point for court involvement precisely where the process is meant to be winding down. In a jurisdiction already struggling with judicial backlog, this raises a genuine policy question: has India's expansion of court-assisted interim relief compounded, rather than relieved, its arbitration inefficiencies?

At its core, the decision in Home Care Retail reflects a tension between fairness and finality between ensuring a party is not left remediless where an award may later be set aside or modified, and preserving the efficiency and conclusiveness that arbitration promises. The court's concern to prevent a party's eventual success from being rendered meaningless by dissipated assets or a lost subject matter is legitimate. However, that protection comes at a cost, i.e., by allowing post-award intervention at the unsuccessful party's instance, the decision implicitly treats arbitral awards as provisional rather than conclusive until judicial proceedings are exhausted, which may, over time, make parties more inclined to challenge awards and seek interim relief simply because the framework now accommodates it.

The Need for Legislative Clarification

The judgment exposes a structural gap in the Act. While the court interprets Section 9 expansively, it also acknowledges the need for caution without providing the objective standards to enforce it. Three things would help close that gap, i.e., a defined threshold for granting Section 9 relief to unsuccessful parties; a clarification of how Sections 9, 34 and 36 interact; and procedural safeguards against frivolous applications, such as costs or an expedited disposal mechanism for post-award Section 9 petitions. Without legislative clarification, the burden of building consistent standards falls on courts case by case, the very outcome National Projects illustrates.

Conclusion

Home Care Retail marks a significant doctrinal development in Indian arbitration regime. By recognising that unsuccessful parties may seek post-award interim relief, the court corrects an unduly restrictive reading of Section 9 and aligns it with its textual breadth. However, the judgment also expands judicial intervention at a stage where finality is expected, introduces an undefined "rare and compelling cases" standard, and operates within a system already burdened by significant delay.

In doing so, it captures a broader tension within Indian arbitration, which is the difficulty of balancing access to justice against procedural efficiency. The decision is best understood not as a final answer but as a transitional moment, one that highlights the need for clearer legislative clarification and policy reform on interim relief in the post-award phase. Without that reform, the expansion under Section 9 risks becoming, in practice, an expansion of uncertainty within an already burdened system.