One of the most controversial issues concerning a post-award S.9 application pertains to right of the award-debtor (the party against whom the arbitral award has been passed) to invoke the said provision for securing interim reliefs from the Court. In plain terms, whether the recourse under S.9 can be sought by merely the award-creditors (the party in whose favour the arbitral award is passed) or by the award-debtors too, is the ensuing question. The issue becomes crucial owing to the inextricable connection of S.9 remedies with those under S.34 and S.36 of the Act. While the statute remains silent on this issue, the judiciary has failed to conclusively address it for almost a decade.

For long, the judiciary has dealt with the said issue, giving conflicting opinions with apposite as well as flawed rationales. Tracing these opinions is germane for resolving the present issue.

In the matter of Dirk India Pvt. Ltd.,^[2] the Bombay High Court, emphasizing the purposive interpretation of S.9, observed that the objective of granting interim reliefs under the provision is to safeguard the arbitral awards until their enforcement, so that the fruits of arbitration are not rendered illusory. Linking the post-award recourse under S.9 strictly with the enforcement of awards under S.36, the Court held that an award-debtor has no occasion to resort to such recourse. The Court highlighted that S.36 is invoked by an award-creditor for the enforcement of an award when either the award-debtor fails to file a S.34 application for setting aside such award or the S.34 application is rejected by the Court. Hence, it was held that what remains unachieved under S.34 cannot be secured by the award-debtor under S.9. Therefore, the provision for post-award interim relief is intended only to secure the enforcement of awards, and allowing such recourse to award-debtors will flout the entire purpose of the provision.

Adopting a diametrically opposite view, the Delhi High Court, in the case of Organising Committee Commonwealth Games,^[3] held that the foregoing case, having been decided in a distinct factual matrix, cannot be relied upon as a precedent. It observed that the award-debtor is entitled to assail the arbitral award under S.34 within a period of 90 days, and hence, is also entitled to seek for the protection of the subject-matter of arbitration during this period, which would otherwise lapse in the meantime. Further, the Court highlighted that the success of the award-debtor under S.34 will entail yet another round of proceedings, pursuing his own claims in the matter. The Court therefore allowed the award-debtor's S.9 application seeking interim measures, even after the passing of the arbitral award.

Rejecting its foregoing view as adopted in the Organizing Committee case, the Delhi High Court, in the recent matter of Tecnimont Pvt. Ltd.,^[4] upheld the Dirk India judgment, stating that only the successful parties, entitled to invoke S.36 for enforcement of awards, can bring claims under S.9, and not the losing parties. Henceforth, the Court held that the respondent, being the losing party in the matter, is not entitled to approach the Court at the post-award and pre-enforcement stage of invocation of S.9.

In fact, in the matter of Hindustan Construction Company Ltd.,^[5] even the Supreme Court upheld the view adopted by the Bombay High Court in the Dirk India case, stating the object and purpose of a post-award remedy under S.9 to be "a step in aid of enforcement".

The varied positions adopted by the High Courts in a plethora of judgments have given way to a long-standing dichotomy regarding the true and intended interpretation of S.9. The said dichotomy emerges from a concurrent reading of S.9, S.34 and S.36 of the Act. While S.34 allows the award-debtor to apply for setting aside an arbitral award,^[6] S.36 allows the award-creditor to apply for enforcement of the award in case of the non-filing or rejection of the said S.34 application.^[7] At this juncture, the role of S.9 in protecting the interests of the parties to arbitration comes into question, a question that requires immediate attention of the legislature as well as of the judiciary.

A perusal of S.9 does not evince any intention of the legislature to deny its recourse to the award-debtors, at any of the three stages of its invocation. In this regard, due consideration shall be given to the meaning of "party" under the Act. S.2(1)(h) defines "party" to mean "a party to an arbitration agreement".^[8] Hence, by using the term "party" under S.9, the legislature intended to refer to any of the parties to the agreement, and not merely to the award-creditors.

The intention of the legislature is rather manifest in the fact that even after the numerous back-to-back amendments to the Act since 2015, no change has been proposed or brought to curtail the locus standi under S.9, or, in other words, to reinforce the interpretation rendered by the Tecnimont case or the Dirk India case. To understand the true meaning of S.9 in such a situation, regard must be given to the basic rule of statutory interpretation enunciating that the duty of the judiciary is to "interpret" and not to "legislate".^[9] However, the said rule seems to have been utterly disregarded by the Court in the Dirk India case by unnecessarily supplying words of restriction to S.9, a function strictly falling under the domain of the legislature.^[10]

Notably, the post-award interim relief held special relevance for award-creditors when the S.34 application preferred by award-debtors resulted in automatic stay on the award execution proceedings.^[11] Subsequently, this provision of automatic stay was discarded through the Amendment Act of 2015,^[12] owing to the array of challenges it posed for the award-creditors.^[13] However, the said amendment also flushed out the significant protection of stay enjoyed by the award-debtors, pending the S.34 application or the 90 days period for filing the same. This implies that the amendment greatly hampered the balance of protection offered by the Act to the winning and the losing parties of arbitration, by handing vast protection to the former and almost negligible protection to the latter. Therefore, the post-award interim relief under S.9, which once came handy for the award-creditors for protection against automatic stay, is now needed for safeguarding the interests of the award-debtors.

The non-availability of S.9 to the award-debtors at the post-award stage, as proposed by the Tecnimont case, will essentially mean that they have no choice but to wait for the award-creditor to file a S.36 application so as to object to the enforcement of an award.^[14] This waiting period, being equivalent to the limitation period for bringing the said S.36 application, can extend to a total of twelve years.^[15] Moreover, the omission of the post-award recourse to arbitral tribunals, pursuant to the Amendment Act of 2019,^[16] further narrows down the alternatives available at the disposal of the award-debtors for seeking interim protection. Even a far-fetched interpretation of the Act shall not entail such a disastrous position for the award-debtors, especially at a time when India intends to become a world-wide arbitration hub.^[17] Clearly, S.9 proves to be an eligible and indispensable measure for rescuing the award-debtors amidst this dreadful scarcity of legal remedies available to them.

Furthermore, the latest endeavour of the legislature in the form of the Arbitration and Conciliation (Amendment) Bill, 2021 has inserted a proviso under S.36 for unconditionally staying the execution of an award pending a S.34 application,^[18] in case the said award, or the arbitration agreement itself, is prima facie tainted with fraud or corruption.^[19] The Statement of Object and Reasons appended to the Bill mentions that the step has been taken to ensure that all stakeholders have the opportunity for seeking protection in certain circumstances.^[20] This shows that the legislature ardently intends to achieve the long-lost balance between the safeguards provided under the Act to the winning and the losing party to arbitration.

In light of the aforesaid legislative blemishes and anomalies, as well as the ensuing negative implications, the position adopted in the judgments of Dirk India Pvt. Ltd. and Tecnimont Pvt. Ltd. concerning the locus standi at the post-award stage under S.9 does not hold good in the present scenario.

It is high time to re-balance the rights and remedies available to the winning and the losing parties to an arbitration proceeding. The long-standing dichotomy between S.9, S.34 and S.36 requires immediate attention of both the legislature and the judiciary. The legislature should resolve the present anomaly by appending an explanation to S.9, stating in lucid terms the interpretation of "party" to include the award-creditor as well as the award-debtor. Further, the judiciary should duly consider the above-discussed ramifications while refusing the post-award S.9 relief to the award-debtors. There is a dire need for a detailed Supreme Court ruling highlighting the need to decide the maintainability of post-award S.9 applications filed by losing parties on the basis of peculiar factual matrix of each case. The Organizing Committee case, where the subject-matter of arbitration would have lapsed if the award-debtor would've been denied the interim relief under S.9, lays the very foundation of the aforesaid proposition, and should be upheld by the Apex Court.

The affirmation that the unbridled allowance of such recourse to award-debtors will leave a window for dilatory tactics cannot be logically denied. However, the same does not warrant an outright denial of recourse under S.9 to them. Instead, the law should resort to other measures for ensuring that the award-debtors invoke S.9 only in case of a real and urgent need of an interim remedy, and not to unnecessarily delay or supress the fruits of arbitration.

Mandating these debtors to deposit onerous monetary amounts or other forms of securities with Court before bringing the post-award S.9 applications is one such measure. Such amount or security should be subject to forfeiture if the Court realises that the application was made by the losing party in bad-faith to vitiate the enforcement proceedings. This will cater to the twin objective of deterring the misuse of the provision and of providing a genuine remedy to the award-debtors.

It is pertinent to note that the essence of the Act lies in facilitating efficient dispute resolution. Therefore, the balance of convenience cannot be shifted in favour of one party while leaving the other party remediless. The losing party cannot be expected to wait for the award-enforcement window of twelve years to secure interim remedies. Supporting the same will essentially put the award-debtor on the mercy of the award-creditor, a position that prima facie seems to violate the basic principles of natural justice. After all, India's desire to become an arbitration hub largely depends upon the extent to which the Act safeguards the interests of both the parties to arbitration.