Losing Side Finally Gets To Fight Back: How Supreme Court Rewrote Rules On Interim Relief In Arbitration

Imagine you have just lost arbitration. The award sits on the table, and the other side is already moving to enforce it. You believe the award is wrong – perhaps it was procured through fraud, or perhaps the arbitrator overlooked a decisive point of law. While you challenge the award under Section 34 of the Arbitration and Conciliation Act, 1996, a process that can take years, the award-holder has already set the wheels in motion. Assets are being transferred, accounts emptied, property changing hands, and by the time the court rules in your favour, there may be nothing left to recover.Section 9 of the Arbitration Act addresses precisely this situation by allowing a party to seek interim protective measures by approaching a court at three distinct stages: (i) prior to the commencement of arbitration, (ii) during the pendency of arbitral proceedings, and (iii) after the award has been rendered but before it is enforced under Section 36. The purpose of such interim protection, that too at multiple stages in dispute, is to ensure that relief, if ultimately granted, is not rendered infructuous due to non-interference by the court.However, in case of interim protective measures after the award, the High Courts across the country were divided on the locus of the unsuccessful party in seeking interim reliefs. The Bombay High Court in Dirk India Pvt. Ltd. v. Maharashtra State Electricity Generation Co. Ltd.[1] laid down the foundational reasoning that would influence courts for over a decade. The Bombay High Court's judgment was premised on the reasoning that post-award interim measures under Section 9 exist solely to safeguard the “fruits of arbitration” and since a losing party holds no enforceable award, it has no fruits to protect and consequently the losing party cannot maintain a petition under Section 9 of the Arbitration Act. The Delhi High Court[2], the Madras High Court[3], and the Karnataka High Court[4] followed the ratio laid down by the Bombay High Court in Dirk India in their respective judgments.On the other side of the divide, the Telangana High Court[5], the Gujarat High Court[6], and the Punjab & Haryana High Court[7] held that even an unsuccessful party in arbitral proceedings can maintain a petition under Section 9 of the Arbitration Act. The Gujarat High Court in GAIL (India) Ltd. v. Latin Rasayani Private Ltd.[8] expressed its disagreement with Dirk India, holding that Section 9 of the Arbitration Act draws no distinction between a party that has succeeded in arbitration and a party that has failed, therefore, either party is entitled to approach the Court for interim protective measures. The Telangana High Court[9] and the Punjab & Haryana High Court[10] echoed the view expressed in Gail India Judgment.The issue arising from the divergent views of the High Courts was put to rest by the Supreme Court on April 24, 2026 in Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi[11] where it held that any party to an arbitration agreement, regardless whether such party had succeeded or lost in arbitration, can seek interim relief under Section 9 of the Arbitration Act.The issue settled by the Supreme Court in the Home Care Judgment[12] is:- “whether the expression 'party' in Section 9 of the Act includes a party that has lost in the arbitral proceedings?”Meaning of term “party”Section 9 of the Act opens with the words “party” which is defined under Section 2(h) of the Arbitration Act as “a party to an arbitration agreement”. The Supreme Court in Home Care Judgment held that neither Section 9 nor Section 2(h) draws any distinction between a successful or an unsuccessful party in arbitration and that restricting the right to seek interim protective measures under Section 9 to successful parties alone would amount to introducing a limitation into the statute that the legislature never contemplated and therefore, such reading of the provision was impermissible in law.[13]The Supreme Court found support for its interpretation in the legislative history of Indian arbitration law read with the structure of the UNCITRAL Model Law. Under Section 18 of the Arbitration Act, 1940, the post-award grant of interim relief was expressly confined to the successful party. The Parliament's choice not to carry forward any such restriction in Section 9 of the Arbitration Act was, in the Supreme Court's view, deliberate. Similarly, while Article 9 of the UNCITRAL Model Law permits court-ordered interim measures only before or during arbitral proceedings. The interim protective measures at post-award stage is a creation of the Parliament and a distinct departure from UNCITRAL Model Law. In fact, the Parliament did so without imposing any restriction on the category of party entitled to seek such relief.Why the “Fruits of Arbitration” Theory Could Not HoldThe most enduring rationale behind Dirk India Judgment was the theory of “fruits of arbitration” i.e., interim protection post-award exists only to preserve the...

Losing Side Finally Gets To Fight Back: How Supreme Court Rewrote Rules On Interim Relief In Arbitration

Dharav Shah & Aayush Maheshwari

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Dharav Shah & Aayush Maheshwari

Losing Side Finally Gets To Fight Back: How Supreme Court Rewrote Rules On Interim Relief In Arbitration

Dharav Shah & Aayush Maheshwari

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INR 1099+GST

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Dharav Shah & Aayush Maheshwari

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