Section 9 After the Award: Rethinking Interim Reliefs for Unsuccessful Parties

[Adira and Divyansh are graduates from National Law Institute University Bhopal.]

The Supreme Court’s recent judgment in Home Care Retail Marts Private Limited v. Haresh N Sanghavi has clarified a long-standing conflict in Indian arbitration jurisprudence regarding the scope of post-award interim reliefs under Section 9 of the Arbitration and Conciliation Act 1996 (Arbitration Act). Prior to this decision, Indian courts were divided on whether post-award interim relief under Section 9 could be sought only by successful parties seeking to protect the “fruits of the award,” or also by unsuccessful parties in limited circumstances.

The judgment resolves this conflict by holding that even an unsuccessful party may seek interim measures after the award but before enforcement under Section 36 of the Arbitration Act. While the ruling expands the scope of Section 9, it also raises concerns regarding arbitral efficiency, finality, and misuse of interim proceedings. The real significance of the judgment lies in how narrowly courts implement this right in future cases.

The Earlier Restrictive Approach

The restrictive interpretation of Section 9 primarily emerged from judgments such as Dirk India Private Limited v. Maharashtra State Electricity Generation Company Limited, Nussli Switzerland Limited v. Organizing Committee, Commonwealth Games 2010, and Padma Mahadev Properties v. Syndicate Bank. These decisions proceeded on the understanding that post-award relief under Section 9 could only aid enforcement of the award. Since only the successful party possessed an enforceable award, only it could seek post-award protection.

This interpretation was rooted in several legitimate concerns.

First, arbitration is intended to function as a time and cost-efficient dispute resolution mechanism. Permitting unsuccessful parties to initiate fresh interim proceedings after the award stage could substantially prolong disputes and increase litigation costs. Such proceedings may involve detailed factual examination and multiple hearings.

Secondly, orders under Section 9 are appealable under Section 37 of the Arbitration Act. Permitting such proceedings could create an additional layer of appeals and collateral litigation, diluting arbitral efficiency and finality.

Thirdly, there existed a genuine apprehension that unsuccessful parties may attempt to indirectly secure reliefs which they could not otherwise obtain under Section 36. Since Section 36 primarily concerns stay of enforcement of the award, a broad interpretation of Section 9 raised concerns that parties may use interim proceedings to effectively delay, dilute, or undermine the arbitral award itself.

Most importantly, arbitration is premised on party autonomy and minimal judicial intervention. Excessive post-award court intervention risks frustrating the legislative objective underlying the Arbitration Act.

Viewed from this perspective, the restrictive line of judgments reflected legitimate institutional concerns regarding efficiency, finality, and judicial restraint.

The Shift Towards a Broader Reading

At the same time, several High Courts had adopted a contrary interpretation and held that Section 9 relief could not be denied merely because a party had lost in arbitration. Decisions of the Telangana, Gujarat, and Punjab and Haryana High Courts emphasised that Section 9 uses the phrase “a party” without distinguishing between successful and unsuccessful parties.

The recent Supreme Court judgment substantially adopts this interpretation.

A major aspect of the reasoning lies in the wording of Section 9 itself. The provision expressly permits “a party” to seek interim relief after the award is rendered but before enforcement under Section 36. It does not create any distinction based upon the outcome of arbitration proceedings.

The judgment also draws a distinction between the Arbitration Act and the UNCITRAL Model Law on International Commercial Arbitration 1985. Article 9 of the UNCITRAL Model Law permits interim measures only before or during arbitral proceedings. However, the Indian legislature consciously expanded the scope of Section 9 by expressly permitting interim relief even after the award but before enforcement. The absence of any distinction between successful and unsuccessful parties gains significance.

This distinction also becomes clearer when Section 9 is contrasted with the framework of interim reliefs under the Code of Civil Procedure 1908. Under Order XXXIX CPC, interim injunctions ordinarily operate only during the pendency of proceedings and generally cease once the suit culminates into a decree. The principle was reaffirmed in Arjun Singh v. Punit Ahluwalia, where the court clarified that interim relief under Order XXXIX cannot ordinarily operate retrospectively after culmination of proceedings. Section 9 of the Arbitration Act, however, consciously adopts a different formulation by expressly permitting interim relief even after the arbitral award but before its enforcement under Section 36. The statutory language therefore preserves limited post-award protection where circumstances so require.

Recent decisions, including Gayatri Balasamy v. ISG Novasoft Technologies Limited, reflect a broader judicial inclination to prevent procedural rigidity from causing substantive injustice. The present judgment appears to continue along a similar trajectory.

The Practical Significance of the Ruling

The practical importance of the issue becomes evident when Sections 9 and 17 are examined together.

Section 17 empowers arbitral tribunals to grant interim measures during the pendency of arbitral proceedings. However, once the arbitral award is rendered, the tribunal effectively becomes functus officio, subject only to limited statutory powers. The 2019 amendment further clarified that Section 17 protections do not indefinitely survive termination of arbitral proceedings.

Consequently, a party that obtained interim protection during arbitration may find itself without a remedy after the award unless Section 9 remains available. In some situations, continuing protection may require a post-award Section 9 application.

The judgment itself identifies a few broad categories where such protection may become necessary, for instance, continuation of earlier protection against invocation of bank guarantees, preservation of subject matter pending challenge proceedings, situations involving prima facie allegations of fraud or lack of notice, and “non-prejudicial” interim orders which do not directly obstruct enforcement of the award.

At the same time, these situations must necessarily remain narrow and exceptional. Otherwise, Section 9 risks becoming an indirect substitute for Section 36.

Situations Where Interim Protection Remains Necessary

The implications of the judgment become clearer when viewed through practical factual situations.

Consider a situation where specialized machinery remains with the successful party after arbitration. Pending challenge proceedings, the losing party may seek protection against destruction, alienation, or creation of third-party rights over the machinery. Such relief preserves the subject matter without undermining the award.

Similarly, where a contractor had obtained protection against encashment of a performance bank guarantee during arbitration, withdrawal of protection post-award may cause irreversible financial consequences before the Section 34 challenge is decided.

These examples demonstrate that limited post-award protection may sometimes become necessary not to defeat the arbitral award, but to preserve the efficacy of subsequent proceedings.

The Need for Strict Safeguards

The recognition of such a right, however, necessarily requires strict safeguards.

The traditional triple-test governing interim relief, namely a prima facie case, balance of convenience, and irreparable harm, would necessarily have to apply with significantly greater rigor where the applicant has already suffered an adverse arbitral award. Interim protection cannot become a mechanism to routinely reopen arbitral disputes.

Equally important is the need to evolve an approach akin to estoppel against belated tactical invocation of Section 9. Interim protection should ordinarily not be granted where the relief could have been sought before the tribunal under Section 17 during arbitral proceedings, but the party consciously refrained from doing so and approached the court only after suffering an adverse award.

For instance, if during arbitral proceedings a party was fully aware that certain assets or receivables were at risk of dissipation but deliberately chose not to seek interim protection before the tribunal, it should ordinarily not be permitted to invoke Section 9 after an adverse award merely to delay enforcement. Conversely, where the necessity for protection genuinely arises after the award, such as continuation of an existing protective order or preservation of subject matter pending challenge proceedings, judicial intervention may remain justified.

Another important limitation may arise in the context of fast-track arbitration proceedings under Section 29B of the Arbitration Act. Fast-track arbitration is specifically designed to ensure expedited resolution, often within six months, and may even proceed substantially on written submissions without extensive oral hearings. Permitting broad post-award interim proceedings in such cases may undermine the very objective of expedited adjudication. Courts may therefore need to adopt a stricter approach in fast-track arbitrations.

Ultimately, Section 9 relief can never become equivalent to relief under Section 36. Interim measures cannot be permitted to substantially neutralize or suspend the arbitral award.

 Conclusion

The recent judgment resolves an important inconsistency within Indian arbitration jurisprudence by clarifying that post-award interim relief under Section 9 is not confined only to the successful party. At the same time, the concerns underlying the earlier restrictive approach remain significant.

The judgment appears less a doctrinal shift and more a recognition that exceptional cases may require limited post-award protection. However, the long-term success of this approach will ultimately depend upon how narrowly and carefully courts implement it in practice.

A rigorous case-to-case analysis, strict application of interim relief standards, and clear distinction between Section 9 protection and Section 36 relief will become essential. Without such safeguards, post-award Section 9 proceedings risk giving rise to another layer of satellite litigation that may undermine the efficiency of arbitration.

The judgment therefore represents a step in the right direction, but its practical consequences will depend entirely upon disciplined judicial implementation and preservation of the balance between finality of the arbitral award and procedural fairness.