Unsuccessful Party in Arbitration Can Seek Interim Relief Under Section 9: Supreme Court Settles the Conflict

The Bombay (Dirk India Pvt. Ltd. v. MSEGCL [2013 SCC OnLine Bom 481]), Delhi (Nussli Switzerland Ltd. v. OC Commonwealth Games [2014 SCC OnLine Del 4834]; NHAI v. PNB [2023 SCC OnLine Del 4810]), Madras (A. Chidambaram v. S. Rajagopal OA No. 843 of 2024), and Karnataka (Smt. Padma Mahadev v. Sierra Constructions [COMAP No. 2 of 2021]) High Courts held that an unsuccessful party cannot maintain a Section 9 petition post-award, reasoning that such relief is confined to protecting the “fruits of arbitral proceedings” and an unsuccessful party has no enforceable award.

Contrarily, the Telangana (Saptarishi Hotels Pvt. Ltd. v. NITHM [2019 SCC OnLine TS 1765]), Gujarat (GAIL v. Latin Rasayani [2014 SCC OnLine Guj 14836]), and Punjab & Haryana (DLF Home Developers v. Orris Infrastructure [FAO-CARB-51-2024 (O&M)]) High Courts held that an unsuccessful party can maintain a Section 9 petition where it demonstrates bona fide apprehension of injury or dissipation pending Section 34 proceedings.

1. The term “A party” cannot be contextually modulated: The Court held that Section 9’s expression “a party” (defined under Section 2(h) as “a party to an arbitration agreement”) is clear and unambiguous, drawing no distinction between successful and unsuccessful parties. Assigning different meanings based on arbitral outcomes would amount to judicial amendment of the statute.

2. Object of Section 9 – Interim measures until judicial culmination: Parliament consciously departed from Article 9 of the UNCITRAL Model Law by introducing a post-award stage without restricting which parties may seek relief. The Dirk India interpretation introduces a limitation unsupported by Section 9’s language; had the legislature intended such restriction, it would have done so expressly. 

3. Sections 34, 36, and 9 operate in distinct spheres: Sections 34 and 36 provide remedies against an award, whereas Section 9 protects the subject matter or amount in dispute. An unsuccessful party cannot secure such protection under Sections 34 or 36; denying Section 9 would leave it remediless even where the challenged award is stayed. 

4. Fundamental premises of Dirk India are untenable: The Constitution Bench in Gayatri Balasamy [2025 SCC OnLine SC 986] settled that Courts under Sections 34 and 37 can modify awards, undermining Dirk India’s assumption that courts can only uphold or set aside awards. Further, “subject matter of arbitration” and “amount in dispute” in Section 9(1)(ii) are broader than “fruits of arbitration”. The Court also noted that under Section 18 of the Arbitration Act, 1940, interim measures were expressly confined to the successful party, whereas the present Act imposes no such restriction. 

5. Purposive interpretation supports maintainability: The Court envisaged situations requiring interim protection for an unsuccessful party: (a) where an award is rendered without proper notice or is tainted by fraud; (b) where interim protection obtained during proceedings (e.g., restraining invocation of a bank guarantee) stands vacated upon the award, causing irreversible prejudice pending Section 34 challenge; and (c) where a party is partially successful but branded unsuccessful due to a higher counter-claim and assets may dissipate. 

6. Higher threshold for unsuccessful parties: While Section 9 is available to unsuccessful parties, the threshold is higher. Relief will be granted only in rare and compelling cases to prevent irreparable prejudice, and courts must exercise care and circumspection in such applications.

Conclusion

The Supreme Court overruled the Bombay, Delhi, Madras, and Karnataka High Courts, holding that any party to an arbitration agreement, including an unsuccessful party, may invoke Section 9 post-award. The Telangana, Gujarat, and Punjab & Haryana High Courts’ views correctly reflect the statutory position. The decision settles a long-standing conflict, reinforcing that statutory language must be given its plain meaning and courts must not read in restrictions the legislature has not imposed. For practitioners, the judgment confirms that an unsuccessful party is not remediless post-award and can seek interim protection under Section 9, subject to a higher threshold. The recognition that Courts can modify awards under Section 34 (per Gayatri Balasamy) further supports the rationale, as interim protection may be necessary to preserve the efficacy of challenge proceedings.