Ramblings of a SC

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The Deviation from the UNCITRAL model law had caused and continues to cause ripples in respect of interpretation of certain provisions which were newly included and the effect of those which were left out.

The point in issue which has always been lurking in murky waters from the very beginning is that of the applicability and interpretation of Section 9 of the Arbitration and Conciliation Act, 1996 (“A&C Act”) at various stages.

Although the four corners within which reliefs could be granted are well defined under Section 9, the initial confusion of whether Section 9 would also be applicable in respect of international arbitration where the seat is outside India had been a question which was long debated. While the dust settled on the applicability of Section 9 to such arbitration by way of legislative amendment in 2015[i], a silent yet tricky part of Section 9 had remained.

The mischief, as it is often referred to, is the introduction of a post award Section 9 scenario. Whether reliefs could be granted in respect of an arbitration which had concluded in an award, and has detached itself from the A&C Act by virtue of Section 36 of the act, was always in debate. While some argued that the introduction of the provision was a conscious inclusion by the Parliament, the manner in which it was judicially interpreted and the circumstances and situations in which the reliefs could be granted in post award scenarios have been in doubt thus far

MAINTAINABILITY, ENTERTAINABILITY, AND ENTITLEMENT

On one hand courts were confronted with situations where reliefs were sought for by both successful and unsuccessful parties in a post awards scenario, and on the other hand, the reliefs that could be granted and the thresholds that have to be met evoked widespread disagreement between various High Courts. The Supreme Court, however, had time and again, until recently, had spoken in different voices with respect to maintainability of such applications on fact-based scenarios, and therefore, the binding nature of such precedents created more uncertainty.

More than anything else the maintainability of such post award applications under Section 9 had been widely debated across various High Courts and went to the extent where a Full Bench was constituted to decide the issue since there were differing opinions. The divergent opinions as to whether the word “enforced” has to be read down as “enforceable” was the moot point that emerged before the Hon’ble Madras High Court. However, the Full Bench categorically laid down[ii] that the term “enforced” cannot be read down as “enforceable” and that it denotes a completed act. It further confirmed that the correct position of law was laid down by the Bombay High Court in Dirk India Pvt Ltd vs MSEGCL[iii] which was approved by Supreme Court in Hindustan Construction Co Ltd vs UOI[iv]. The Calcutta High Court[v] was also in agreement with Full Bench of the Madras High Court and the Bombay High Court. It further held that the remedies under Section 9 are not available to the court enforcing the award and further that neither Section 36 or 34 of act provides for remedy similar to Section 9. The expression “before it is enforced” was interpreted to mean till the award is finally satisfied by conclusion of enforcement proceedings under Section 36.

Post the Full Bench Judgment of the Madras High Court, yet another round on question of maintainability was raised before a Learned Single Judge[vi]. However, The Learned Single Judge while noting the decision of Full Bench on maintainability, held that whether an application under Section 9 should be entertained in all cases is discretionary in nature and therefore gave yet another interpretation to the post award reliefs thereby holding that the entertainability of a Section 9 application lies on a completely different domain than that of maintainability. By holding so, the Hon’ble Madras High Court granted liberty to the party to move the execution court for directions and passed orders to complete the execution proceedings within a stipulated time. It is interesting to note in the passing that the execution petition has still not seen the light of the day[vii].

The Supreme Court thereafter had yet another question to deal with in a post award scenario. Whether a party who has lost the arbitral proceedings could maintain a Section 9 application was the question that was to be decided[viii]. Various High Courts including the Bombay, Delhi and Madras High Courts had held that such an unsuccessful party was not eligible to maintain a Section 9 application. Some other courts however like Gujarat and Telangana High Court held the contrary. The Supreme Court put this question to rest by stating where the Section on its plain reading referred to a party and the natural and ordinary meaning would have to be given to such an expression. As neither Section 2(h) nor Section 9 draws any distinction based on the success of a party in the arbitral proceedings the literal interpretation ought to be given in such a scenario. This is more so as the parliament had departed from the model law. More importantly it noted that the object of Section 9 was to ensure that parties retain the right to approach the court to avail of interim measures until judicial process had reached culmination. The Supreme Court however held that the threshold for grant of interim relief will be higher for an unsuccessful party in an arbitration.

More recently, the Hon’ble Supreme Court while dealing with the entitlement of an unsuccessful party in an arbitration to seek interim reliefs[ix], relies on Home Care Retail Marts, tested the case with a higher threshold by placing reliance on Essar House Pvt Ltd[x] and Adhunik Steels Ltd[xi] and held that the Section 9 Applicant therein had fulfilled in ample measure, the necessary parameters for obtaining relief.

CONCLUSION

Arbitration, originally intended to provide a speedy, informal and effective alternative to dispute resolution though Courts, has over the times become increasingly technical, complex and protracted. “Informal forum” chosen by parties for expeditious disposal has by the decisions of courts been clothed with the ‘legalese’ of unforeseeable complexity[xii]. While the question of the maintainability of a post-award Section 9 Application may now be considered settled, the questions of entertainability and the entitlement of parties to obtain the reliefs sought, continue to loom large.

Ultimately, as long as the execution of arbitral awards remain within the framework of the Code of Civil Procedure (“CPC”), the difficulties and delays associated with enforcement of awards are likely to persist, leading parties to pursue remedies outside of CPC and in the present circumstances, under Section 9 of A&C Act.

The saying “Difficulties of a litigant in India begin when he has obtained a decree” ought not to be permitted to be transposed onto the arbitration regime. There is a need for a robust and effective mechanism for execution of arbitral awards, akin to the mechanisms comparable to revenue recovery proceedings. Speed, efficacy and certainty of rendering an award, without speed, efficacy and certainty in enforcing such award, makes the promise of an effective alternate dispute resolution mechanism, illusory.

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[i] Inserted by S. 2 of Act 3 of 2016 (w.e.f. 23.10.2015)

[ii] B.M Insulation Private Limited vs Vardeep Petro Chemical Private Limited, order dated 21.01.2026 in  Arb Appln No. 374 of 2025

[iii] 2013 SCC OnLine Bom 481

[iv] (2020) 17 SCC 324

[v] Alok Saraf vs Shyam Sundar Nangalia, 2026:CHC-OS:59-DB

[vi] C.J Charles Rajkumar vs Rahamathunnisa, 2026:MHC:835

[vii] C.J Charles Rajkumar vs Rahamathunnisa, orders dated 08.07.2026, 14.07.2026, 22.07.2026 in O.A 1188 of 2026

[viii] Home Care Retail Marts Pvt Ltd vs Haresh N Sanghavi, 2026 SCC OnLine SC 670

[ix] 2026 SCC OnLine SC 1535

[x] Essar House Pvt Ltd vs Arcellor Mittal Nippon Steel India Ltd, (2022) 20 SCC 178

[xi] Adhunik Steels Ltd vs Orissa Manganese and Minerals (P) Ltd, (2007) 7 SCC 125

[xii] Guru Nanak Foundation vs Rattan Singh & Sons, (1981) 4 SCC 634