Post-Award Section 9: The Remedy Survives, but the Threshold Must Do the Work

The 2019 Amendment reinforces this position. After the award, Section 17 is no longer available. The court is the only protective forum left under the Act. Excluding an unsuccessful party from Section 9 would leave even genuine cases remediless.

Section 9, Arbitration and Conciliation Act, 1996 does not ask who won. It asks who is a party.

That distinction, long collapsed by conflicting High Court decisions, has now been restored by the Supreme Court in Home Care Retail Marts (P) Ltd. v. Haresh N. Sanghavi¹.

The issue was simple to state but difficult in consequence: Can a party which has lost in arbitration still approach the court under Section 9 after the award, but before enforcement under Section 36? The Supreme Court answered in the affirmative. The remedy survives the award. However, it does not become easy relief. For an unsuccessful party, the threshold is higher. Relief must be confined to rare and compelling cases.

The temporal breadth of Section 9 is not new. In Sundaram Finance Ltd. v. NEPC India Ltd.², the Supreme Court had recognised that Section 9 can be invoked before arbitral proceedings, during arbitral proceedings, or after the award but before its enforcement. The Home Care case gives that breadth its full reach at the post-award stage, even for the party that lost.

The question reached the Supreme Court because the High Courts had taken conflicting views. The Bombay High Court in Dirk India (P) Ltd. v. Maharashtra State Electricity Generation Co. Ltd.³, treated post-award Section 9 as a measure intended to protect the fruits of the arbitral proceedings. Since a losing party had no fruits of the award to preserve, it could not invoke Section 9 after the award.

The Delhi High Court in Nussli Switzerland Ltd. v. Organizing Committee Commonwealth Games⁴ and NHAI v. Punjab National Bank⁵, broadly followed this restrictive line. So did the Madras and Karnataka High Courts.

That reasoning was not without force. It respected finality. It avoided turning Section 9 into a second round of interim litigation. It prevented a losing party from doing indirectly what it could not do directly.

But its difficulty was textual.

The contrary line, taken by the Gujarat High Court in GAIL (India) Ltd. v. Latin Rasayani (P) Ltd.⁶, the Telangana High Court in Saptarishi Hotels (P) Ltd. v. National Institute of Tourism & Hospitality Management⁷, and the Punjab & Haryana High Court in DLF Home Developers Ltd. v. Orris Infrastructure (P) Ltd.⁸, order dated 21 February 2025, proceeded from the statute. Section 9 says “a party”. Section 2(h) defines “party” as a party to an arbitration agreement. It does not say “successful party”. It does not say “award-holder”. That is not a minor textual point. It is the foundation of the permissive view.

In practice, the restrictive line meant that a losing party watching assets dissipate during the pendency of its Section 34 challenge had nowhere to go. The Tribunal had decided. The court, under the Dirk India case⁹, would not intervene. The remedy was formal. The prejudice was real.

The Supreme Court has preferred the permissive view. Once the statute defines the expression “party”, there is limited room for the courts to recast it depending on who won and who lost. A party remains a party to the arbitration agreement. The result of the arbitration may alter the strength of its case. It does not alter its identity under the Act.

That approach is consistent with Firm Ashok Traders v. Gurumukh Das Saluja¹⁰, where the Supreme Court explained that the qualification for invoking Section 9 is being a party to an arbitration agreement. That qualification concerns locus standi. It does not predetermine entitlement. This distinction matters. The courts that followed Dirk India case effectively treated the merits question, whether this party deserves relief, as a maintainability question, whether this party can apply at all.

These are not the same inquiry.

The judgment also rejects the narrowness of the “fruits of the award” theory. That phrase was useful but incomplete. Section 9 speaks not only of securing eventual enforcement, but also of preserving the subject-matter of the arbitration, securing the amount in dispute, granting interim injunctions, appointing Receivers, and such other measures as may appear just and convenient. These expressions are wider than the protection of an enforceable award alone.

The 2019 Amendment reinforces this position. After the award, Section 17 is no longer available. The court is the only protective forum left under the Act. Excluding an unsuccessful party from Section 9 would leave even genuine cases remediless.

Section 43(4) also matters. If an award is set aside, the Act excludes the period spent in the earlier arbitration and court proceedings for limitation purposes. The Act, therefore, contemplates fresh arbitration after an award is set aside. If that possibility is preserved, the subject-matter cannot be treated as unprotectable in the meantime.

Hindustan Construction Co. Ltd. v. Union of India¹¹ also did not conclude the issue. Though it referred to the Dirk India case¹², it did so in a different context. It was not deciding whether an unsuccessful party could seek post-award Section 9 relief. The Home Care case¹³ correctly treats that reference as not being law declared under Article 141 on this issue.

So far, so good. But the harder problem is Section 36.

After the award, Parliament has provided a specific mechanism for stay of enforcement. If the losing party wants protection, it must satisfy Section 36. That is the strongest objection. Section 9 may appear to create a parallel post-award route.

But that objection goes too far.

Section 36 deals with enforcement and stay. Section 9 deals with interim protection of the subject-matter, the amount in dispute, and ancillary protective relief. A stay under Section 36 may prevent enforcement. It does not necessarily preserve assets, protect confidential material, restrain irreversible alienation, or continue an existing protective arrangement. That is to say, Section 34 challenges the award. Section 36 regulates enforcement. Section 9 preserves the situation where preservation is necessary.

The answer, therefore, is not to shut the door on Section 9. The answer is to police the threshold.

That becomes especially important after Gayatri Balasamy v. ISG Novasoft Technologies Ltd.¹⁴. Once courts, in limited circumstances, can modify or sever parts of an award, the assumption that a losing party can never have anything meaningful to protect becomes harder to sustain. A party may have lost overall, but may still have a serious challenge to a severable part of the award.

None of this means that every losing party has earned a second innings.

The unsuccessful party cannot use Section 9 to neutralise the award merely because it has filed a Section 34 petition. It cannot dress up dissatisfaction with the award as a prayer for interim protection. A rejected claimant cannot automatically seek security for a claim already rejected by the Tribunal. A losing respondent cannot use Section 9 to paralyse enforcement without satisfying Section 36.

The general threshold for Section 9 relief remains settled. In Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel (India) Ltd.¹⁵, the Supreme Court reiterated that the court must examine prima facie case, balance of convenience, irreparable injury, and reasonable expedition. In the case of Home Care¹⁶, these familiar requirements acquire additional sharpness because the applicant has already failed before the Tribunal.

What should this higher threshold require?

First, a pending Section 34 petition should not be enough. The losing party must show a strong prima facie case, not merely an arguable challenge.

Second, the relief must be protective and proportionate. It should preserve the position. It should not effectively give the unsuccessful party the benefit of a claim rejected by the Tribunal. The court must ask what the order really does: Does it preserve the subject-matter, or does it revive a failed claim?

Third, the prejudice must be concrete and irreversible. Commercial inconvenience is not enough. The applicant must show that without protection, the subject-matter of arbitration, the amount in dispute, or a distinct legal interest connected to the arbitration will be irretrievably impaired.

Fourth, Section 9 must not become a substitute for Section 36. If the real object is to stay enforcement, Section 36 is the proper route.

Fifth, the nature of the relief matters. Continuation of an existing protective order, preservation of confidential material, restraint against irreversible alienation of a unique asset, or protection against immediate invocation of a bank guarantee in a genuinely exceptional case may stand on one footing. Security for a rejected monetary claim stands on a much weaker footing.

These are not boxes to be ticked mechanically. They are part of a composite assessment. The central question is whether the case is rare and compelling enough to justify protection after the applicant has already lost before the Tribunal.

If that question is answered loosely, the remedy becomes a tactic. Delay becomes the relief. The successful party’s award may remain intact in law, but become practically trapped for the duration of Section 34 proceedings.

The courts will now have to separate genuine preservation from disguised re-litigation. Indian Courts have historically exercised wide powers under Section 9, often with a strong instinct to preserve commercial equities. That instinct is valuable before and during arbitration. After an award, it must be handled with greater discipline because the Tribunal has already spoken.

The maintainability question is now settled. “A party” means a party. The harder question is now one of application: Will courts treat the higher threshold as a real filter, or merely as a phrase to be repeated before granting relief?

The success of Home Care case will depend less on its holding and more on its application.

Post-award Section 9 has survived. But after the Home Care case, survival is not the story. Scrutiny is.