Not Remediless After All: Section 9 and the Unsuccessful Party – Tracing the Supreme Court’s Reasoning in Home Care Retail Marts v. Sanghavi 

Introduction

The Supreme Court, in Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi (2026 INSC 415) (‘Home Care Retail Marts v. Sanghavi’), has settled a question that had divided High Courts across the country for over a decade, namely, whether a party that has lost before an arbitral tribunal, and therefore holds no enforceable award, can still approach a court for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’). The Supreme Court, through its Bench comprising Manoj Misra and Manmohan, JJ., answered this in the affirmative. The Court held that the expression ‘a party’ in Section 9 cannot mean different things depending on whether that party won or lost in arbitration, and that an unsuccessful party retains the statutory right to seek interim protection at the post-award stage, subject to a higher threshold than the one applicable to an award holder. 

The judgment overturns the position taken by the Bombay, Delhi, Madras, and Karnataka High Courts, all of which had confined post-award interim relief under Section 9 to a party holding an enforceable award. It instead approves the contrary view taken by the Telangana, Gujarat, and Punjab and Haryana High Courts, and draws heavily on the Constitution Bench decision in Gayatri Balasamy v. ISG Novasoft Technologies Ltd. (2025 SCC OnLine SC 986), which recognised the limited power of courts to modify and sever arbitral awards, to hold that the premise underlying the earlier line of cases no longer survives. 

Factual Background of the Dispute:

The batch of three civil appeals before the Supreme Court primarily concerned a question of law arising from a deep and long-standing divergence among High Courts on whether a party unsuccessful in arbitration could invoke Section 9 of the Arbitration Act once the award was passed. The lead appeal, arising out of SLP (C) No. 29972/2015, was directed against an order of the Bombay High Court dismissing an appeal under Section 37 of the Arbitration Act. The Bombay High Court had relied on its own earlier decision in Dirk India Pvt. Ltd. v. Maharashtra State Electricity Generation Co. Ltd. (2013 SCC OnLine Bom 481) (‘Dirk India’), where it had held that Section 9, at the post-award stage, exists only to protect the “fruits of a successful arbitration”, leaving an unsuccessful party with nothing to protect. 

The view taken in Dirk India was, over the years, followed by the Delhi High Court in Nussli Switzerland Ltd. v. Organizing Committee Commonwealth Games (2014 SCC OnLine Del 4834) and National Highways Authority of India v. Punjab National Bank (2023 SCC OnLine Del 4810), by the Madras High Court in A. Chidambaram v. S. Rajagopal (OA No. 843 of 2024), and by the Karnataka High Court in Padma Mahadev v. Sierra Constructions Pvt. Ltd. (COMAP No. 2 of 2021). Each of these High Courts held that an unsuccessful party could not maintain a petition under Section 9 at the post-award stage. 

The Telangana, Gujarat, and Punjab and Haryana High Courts took the opposite view. In Saptarishi Hotels Pvt. Ltd. v. National Institute of Tourism and Hospitality Management (2019 SCC OnLine TS 1765), GAIL (India) Ltd. v. Latin Rasayani Pvt. Ltd. (2014 SCC OnLine Guj 14836), and DLF Home Developers Ltd. v. Orris Infrastructure Pvt. Ltd. (FAO-CARB-51-2024, decided 21 February 2025), these courts held that Section 9 does not distinguish between a winning and a losing party, and that any party demonstrating a genuine apprehension of injury during the pendency of Section 34 proceedings could seek interim protection. 

It was to resolve this conflict that the Supreme Court framed a substantial question of law for its consideration in the present appeals. 

Issue Before the Supreme Court:

The question before the Court was narrow but consequential: whether a petition under Section 9 of the Arbitration Act, filed at the post-award stage by a party that had lost before the arbitral tribunal and held no enforceable award, was maintainable in law. 

Analysis by the Supreme Court:

Section 9 of the Arbitration Act begins with the words ‘a party’, and Section 2(h) defines ‘party’ simply as a party to an arbitration agreement. Neither provision draws any line between a party that succeeded before the tribunal and one that did not. A definition exists precisely to fix the meaning of a term for the whole statute, and once fixed, that meaning cannot expand or contract depending on the stage of the proceeding or the outcome of the award. The Court reasoned that reading ‘a party’ as covering everyone before the award but only the award holder after it would require the same expression to carry different meanings at different stages under the same statutory provision, a result it found impossible to justify on ordinary principles of statutory construction.  

The Court placed considerable weight on the legislative history of Section 9. Article 9 of the UNCITRAL Model Law, on which the Indian statute is based, permits a party to seek interim measures ‘only before or during arbitral proceedings’. Parliament, while enacting the 1996 Act, consciously added a third stage, namely, after the award is made but before it is enforced under Section 36. Having deliberately expanded the provision beyond the Model Law, Parliament attached no qualification restricting this third stage to a successful party. The Court held that if such a restriction had been intended, the statute would have said so, just as Section 18 of the erstwhile Arbitration Act, 1940, expressly confined post-award relief to a party seeking to enforce its award. The absence of a similar restriction in the 1996 Act was treated as a deliberate legislative choice rather than an oversight. 

The Court also examined how Section 9 interacts with Sections 34 and 36 of the Arbitration Act. Sections 34 and 36 provide remedies against the award itself, whether by setting it aside or by staying its enforcement, and these remedies are, by their nature, of limited use to a party whose claim has already been rejected. Section 9, by contrast, protects the subject matter of the dispute or the amount in dispute, a concern distinct from the fate of the award. An unsuccessful party has no means of protecting its position under Sections 34 or 36 alone, and if it is also denied access to Section 9, it would have no forum in which to guard against dissipation of assets or the subject matter, even where the award under challenge is eventually set aside and the parties remain entitled to recommence arbitration. 

This gap becomes more significant in light of the Constitution Bench decision in Gayatri Balasamy, which recognised limited powers of courts exercising jurisdiction under Sections 34 and 37 to modify or sever an award in specified circumstances, including where the award is severable, to correct clerical, computational or typographical errors, and to modify post-award interest in appropriate cases. The entire foundation of Dirk India rested on the assumption that a court under Section 34 can only uphold or set aside an award, and cannot alter the outcome for the party that lost. Once that assumption is displaced by the limited powers to modify and sever awards recognised in Gayatri Balasamy, the reasoning in Dirk India, and in the High Court decisions that followed it, no longer holds together. The Court also noted that even where an award is set aside outright, the underlying contract and the rights under it revive, and Section 43(4) of the Arbitration Act excludes the time spent in the earlier proceeding while computing limitation for a fresh reference, preserving the losing party’s right to re-agitate its claim. 

Even tested on a purposive footing rather than a purely textual one, the Court reached the same result. It offered several illustrations where an unsuccessful party may genuinely need interim protection at the post-award stage, such as an award passed without proper notice to a party, an award that appears prima facie to be tainted by fraud or corruption, or a case where an order restraining invocation of a bank guarantee stood vacated on the passing of the award, but the losing party has since obtained a stay of enforcement under Section 36(3) pending its Section 34 challenge. The Court also flagged a situation where a party succeeds in part but is treated as unsuccessful only because a larger counterclaim was allowed against it, noting that denying such a party any interim protection could allow assets to dissipate well before its partial success is vindicated in a Section 34 proceeding. 

The Court addressed the reliance placed on Hindustan Construction Co. Ltd. v. Union of India (2020) 17 SCC 324, where this Court had cited Dirk India while rejecting a separate argument that a pending Section 34 challenge automatically renders an award unenforceable. It clarified that Hindustan Construction did not consider, and therefore did not decide, whether an unsuccessful party could invoke Section 9 after an award, and that observations made in a different context cannot be treated as binding precedent on this issue. The Court reiterated the settled principle that a court’s task is to interpret a statute as it stands, not to rewrite it according to what may seem fair or convenient, and that this restraint applies with particular force where the statutory language is plain and admits of only one meaning. 

At the same time, the Court was careful to clarify that opening the door under Section 9 does not dilute the ordinary tests governing interim relief. An applicant, successful or otherwise, must still establish a prima facie case, a balance of convenience in its favour, and the likelihood of irreparable harm, consistent with the principles laid down in Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India Ltd. (2022) 20 SCC 178. This threshold, the Court held, will necessarily be higher for an unsuccessful party than for an award holder, and courts must exercise care, caution, and circumspection while dealing with such applications, so that Section 9 is not converted into a routine tool to relitigate what the tribunal has already decided. 

Observations of the Supreme Court and the Judgment:

On this reasoning, the Court held that Dirk India, Nussli Switzerland Ltd., Padma Mahadev, and A. Chidambaram do not lay down good law, and approved the contrary view taken by the Telangana, Gujarat, and Punjab and Haryana High Courts. It held that any party to an arbitration agreement, including an unsuccessful party in arbitration, may invoke Section 9 of the Arbitration Act at the post-award stage, subject to the higher threshold discussed above. Since the appeal arising out of SLP (C) No. 11139/2020 concerned only this question of maintainability, it stood disposed of on this finding. The remaining two appeals, arising out of SLP (C) Nos. 29972/2015 and 26876/2014, were listed for hearing on merits, the maintainability objection to those Section 9 petitions having now been cleared out of the way. 

Conclusion:

The Supreme Court’s decision in Home Care Retail Marts v. Sanghavi resolves a conflict that had persisted across at least seven High Courts since Dirk India was decided in 2013. By holding that the expression ‘a party’ in Section 9 of the Arbitration Act carries one consistent meaning across all three stages the provision contemplates, the Court closes off an interpretation that made the availability of interim relief turn on the very outcome of the award under challenge. The judgment draws its strength from Parliament’s deliberate departure from Article 9 of the UNCITRAL Model Law and from the changed landscape following Gayatri Balasamy, where the limited power to modify and sever awards rendered the reasoning in Dirk India and the cases that followed no longer applicable. 

The decision carries real significance for practitioners handling post-award proceedings. It ensures that a party challenging an award under Section 34, particularly where the challenge concerns a severable portion of the award or a substantial counterclaim, is not left without a forum to protect the subject matter of the dispute while that challenge is pending. At the same time, by insisting on a higher threshold for an unsuccessful party and by cautioning courts to guard against misuse, the judgment preserves the discipline that Section 9 has always demanded. Award holders and unsuccessful parties now stand on the same textual footing under Section 9, leaving it to courts, case by case, to ensure that this equal footing is not mistaken for an equal entitlement to relief. 

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Last Updated on 11 August, 2026