Arbitration is built on the promise of speed and finality. But a dispute, once triggered, does not pause courteously while the machinery of arbitration assembles itself. Assets can be dissipated, properties transferred, and security can vanish before a tribunal sits. And even after the tribunal has spoken, the losing party may have every incentive to strip itself of attachable assets during the months in which the award remains under challenge. Without interim protection at every stage, an eventual award, however well-reasoned, can become a hollow victory against a respondent who has quietly made himself judgment-proof. Section 9 exists to answer precisely that problem.
What Section 9 does
Section 9 of the Arbitration and Conciliation Act, 1996 empowers a court to grant interim measures of protection at three distinct stages: before arbitral proceedings commence, during their pendency, and after the award is passed but before it is enforced under Section 36. The reliefs available are wide, covering preservation, custody or sale of goods, securing the amount in dispute, detention or inspection of property, appointment of a receiver, and any other interim measure the court considers just and convenient. The section does not prescribe specific conditions for claiming such relief, thereby granting courts widespread discretion to order protections as may appear just and convenient on the facts of each case.
| THREE STAGES OF SECTION 9 JURISDICTION | ||
|---|---|---|
| Before arbitration Full, unrestricted court jurisdiction; no tribunal yet constituted to grant any relief | During proceedings Court steps back unless Section 17 before the tribunal would not be efficacious | Post-award Tribunal is functus officio; Section 9 is the only interim forum until enforcement under Section 36 |
The 90-day discipline: Section 9(2) and what it demands
The 2015 Amendment introduced an important discipline alongside the new Section 9(3): under Section 9(2), once a court passes an interim order before the commencement of arbitral proceedings, the applicant must commence arbitration within ninety days of that order, or within such further time as the court may allow. The Supreme Court had addressed the underlying intent even before this provision existed. In Sundaram Finance v. NEPC India Pvt. Ltd. (1999) 2 SCC 479, the Court held that when a party seeks interim measures under Section 9, it implicitly accepts that a valid arbitration agreement exists and that a dispute referable to the tribunal has arisen. A party cannot use a Section 9 order as a tactical chokehold, securing relief and then sitting on the arbitration indefinitely. Courts have since held that a party must demonstrate a manifest intention to take effective steps in commencing proceedings, with a notice under Section 21 of the Act being the most reliable indicator of that intention.
The Delhi High Court in Information TV Private Limited v. Jitendra Dahyabhai Patel (2024 SCC OnLine Del 810) dealt with precisely this situation: an applicant who had secured interim relief in 2021 but did not invoke arbitration until 2023. Relying on Sundaram Finance, the Court held that the petitioner had failed to demonstrate a clear and manifest intention to arbitrate. The lesson is not subtle: a Section 9 order without an imminent arbitration is procedurally fragile, and courts now examine the gap between the order and the invocation of arbitration with considerably less indulgence than they once did.
Section 9 is not a reward for success in arbitration, but a statutory right flowing from party status under the arbitration agreement. Its purpose is to preserve the integrity of the dispute resolution process until its judicial culmination.
Supreme Court of India, Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi, 2026 INSC 415, decided 24 April 2026
Section 9(3) and the bar during tribunal proceedings: what “entertain” actually means
The 2015 Amendment inserted Section 9(3), which provides that once the arbitral tribunal has been constituted, the court shall not entertain an application under Section 9(1) unless it finds that the remedy available under Section 17 before the tribunal would not be efficacious. This provision marked a decisive shift in legislative philosophy: the tribunal, not the court, was to be the primary forum for interim relief during the proceedings. The word “entertain” in Section 9(3) became the most litigated term in Indian arbitration law after 2015.
The Supreme Court in ArcelorMittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd. (2022) 1 SCC 712 gave that word its authoritative meaning. The Court held that “entertain” means to consider by application of mind to the issues raised. Once a court has taken up a Section 9 application and applied its mind to the issues involved, the bar under Section 9(3) does not apply even if the tribunal is constituted in the interregnum. The Telangana High Court in M/s. Corvine Chemicals and Pharmaceuticals Private Limited v. Srinivasulu Kanday (COMCA No. 40 of 2024) reiterated this position, holding that the 2015 amendments had significantly strengthened protections for parties in arbitration and that the bar under Section 9(3) was directed at new applications, not at matters where judicial cognizance had already been taken. Requiring parties to re-agitate the same interim application before the newly constituted tribunal after a court had substantially engaged with it would produce a redundant parallel process that the legislature cannot have intended.
When Section 17 is not efficacious and Section 9 jurisdiction revives
| Situation | Why Section 17 fails | Section 9 consequence | Authority |
|---|---|---|---|
| Tribunal not yet constituted Tribunal constituted but members unavailable on urgency Tribunal constitution under challenge for bias Post-award, pre-enforcement stage | No forum available at all Cannot convene promptly to address urgency Tribunal’s own legitimacy is in question Tribunal is functus officio; Section 17 is spent | Full court jurisdiction under Section 9 Court jurisdiction revives; Section 9(3) bar lifted Court jurisdiction revives pending determination Section 9 is the only interim forum for any party | Sundaram Finance (1999) ArcelorMittal (2022) ArcelorMittal (2022) Home Care Retail Marts (2026) |
The standard for relief: Essar House, Sanghi Industries, and the question courts keep returning to
Section 9 does not prescribe conditions for granting interim relief, and courts have long debated whether they are bound by the stricter requirements of Order XXXVIII Rule 5 of the Code of Civil Procedure, which requires proof that the defendant is about to dispose of property with intent to defeat an eventual decree. The Supreme Court pulled the law in two directions in quick succession.
In Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India Ltd., the Court held that proof of actual attempts to tamper with property is not imperative: a strong possibility of diminution of assets suffices, and courts acting under Section 9 are not strictly bound by the procedural constraints of the CPC. The Court explicitly held that an application under Section 9 for interim relief is not to be judged as per the standards of a plaint in a suit, and that if the relevant facts pleaded, read with the documents annexed, warrant the grant of interim relief, it ought not be refused by recourse to technicalities. In Sanghi Industries Ltd. v. Ravin Cables Ltd., a coordinate bench took a harder line, holding that the conditions under Order XXXVIII Rule 5 must be satisfied, requiring cogent material to establish that the respondent is likely to defeat the award through deliberate disposal of assets.
A close reading of both decisions suggests the divergence is more apparent than real. Essar House involved refundable deposits at genuine risk of being absorbed into a financially distressed entity. Sanghi Industries involved a performance bank guarantee where no material was placed before the court establishing that the respondent’s actions would render enforcement ineffective. Different facts produced different outcomes, and the apparent contradiction reflects context more than doctrine. The analysis from the international dispute resolution team at Nishith Desai Associates has noted that Essar House reinforced a pro-arbitration approach by dissociating the principles governing the CPC from those governing the Arbitration Act, since the power under Section 9 should not be curtailed by the rigours of every procedural provision in the CPC. High Courts have largely continued to apply the Essar House standard in practice even when nominally citing Sanghi Industries, because the commercial pressures underlying interim relief applications require a workable and flexible standard.
The 2026 landmark: who counts as “a party” after the award falls
For over a decade, various High Courts had read into Section 9 a restriction that the legislature itself never wrote: that “a party” at the post-award stage must mean only the successful party, the award-holder whose fruits of the award needed protection. The High Courts of Bombay, Delhi, Madras, and Karnataka consistently held that post-award interim measures were strictly intended to protect the fruits of arbitral proceedings, a benefit an unsuccessful party is not entitled to. The High Courts of Telangana, Gujarat, and Punjab and Haryana took the opposite view, holding that the statutory language of Section 9 draws no such distinction.
In a landmark ruling that resolves this decade-long rift among High Courts, the Supreme Court, through Justices Manmohan and Manoj Misra in Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi (2026 INSC 415, decided 24 April 2026), held that even parties who lose in arbitration can seek interim relief under Section 9 after the award but before enforcement.
The Court’s reasoning rested on four pillars. First, the meaning of “a party” cannot be contextually modulated: the statutory expression under Section 2(h) applies to any party to the arbitration agreement and does not transform based on the outcome of the proceedings. If courts were to resort to contextual or purposive interpretation so as to arrive at a meaning contrary to the plain language of the statute, it would not only do violence to the statute but at a jurisprudential level would constitute a breach of the doctrine of separation of powers. Second, Sections 9, 34, and 36 operate in distinct spheres: Section 34 provides a mechanism to set aside an award; Section 36 governs enforceability and the grant of stay; Section 9 is concerned with protection of the subject matter or amount in dispute. Since an unsuccessful party cannot secure such protection under Sections 34 or 36, denying access to Section 9 would leave such a party remediless, particularly in situations where the award is stayed or is ultimately set aside. Third, the Court relied on Gayatri Balasamy v. ISG Novasoft Technologies Limited (2025 SCC OnLine SC 986), which recognised that courts can modify or sever awards: a party may succeed on liability but fail on quantum, or lose claims but win substantial counter-claims, making arbitration outcomes non-binary and strengthening the need for interim protection pending challenge. Fourth, the Court held that the object and purpose of Section 9 is to ensure that parties retain the right to approach the court for interim measures until the judicial process has reached its culmination, which occurs only upon enforcement under Section 36, not upon the passing of the award.
| POST-AWARD SECTION 9 RELIEF AFTER HOME CARE RETAIL MARTS (2026) | ||
|---|---|---|
| Who may apply Any party to the arbitration agreement, including the unsuccessful party; no distinction in Section 2(h) or Section 9 | Higher threshold Rare and compelling circumstances; courts must exercise care, caution, and circumspection; standard is materially stricter than for an award-holder | What can be protected Subject matter of arbitration or amount in dispute; not confined to preserving fruits of an award that may yet be modified or set aside |
The object and purpose of Section 9 is to ensure that parties retain the right to approach the Court for interim measures until the judicial process has reached its culmination. Section 9 is not a reward for success in arbitration, but a statutory right flowing from party status under the arbitration agreement.
Supreme Court of India, Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi, 2026 INSC 415, per Justice Manoj Misra and Justice Manmohan
Key landmarks in Section 9 jurisprudence
| Year | Case | Holding |
|---|---|---|
| 1999 | Sundaram Finance v. NEPC India Pvt. Ltd. | Section 9 implicitly presupposes a valid arbitration agreement; applicant must demonstrate manifest intention to arbitrate |
| 2022 | ArcelorMittal Nippon Steel v. Essar Bulk Terminal Ltd. | “Entertain” means application of mind to the issues; once a court substantively engages, Section 9(3) bar does not revive |
| 2022 | Essar House v. Arcellor Mittal Nippon Steel India Ltd. | Strong possibility of asset diminution suffices; Section 9 not strictly bound by procedural constraints of the CPC |
| 2024 | Information TV Private Limited v. Jitendra Dahyabhai Patel | Two-year gap between Section 9 order and Section 21 notice fatal; petitioner failed to demonstrate manifest intention to arbitrate |
| 2025 | Gayatri Balasamy v. ISG Novasoft Technologies Limited | Courts can modify or sever awards; arbitration outcomes are non-binary; basis for interim protection pending challenge is wider than assumed |
| 2026 | Home Care Retail Marts v. Haresh N. Sanghavi | Any party including the unsuccessful party may invoke Section 9 post-award; higher threshold applies; “a party” cannot be judicially narrowed to “successful party” |
What the Draft Arbitration Bill 2024 proposes to change
In October 2024, the Indian government published the Draft Arbitration and Conciliation (Amendment) Bill 2024 and invited public comment. The proposed amendment to Section 9 limits the power of courts to grant interim relief only to two situations: before the commencement of arbitration, and after the making of the award. The current power of courts to grant relief during the pendency of arbitration, even where Section 17 is found to be inefficacious, would be categorically removed. The Draft Bill also proposes to delete Section 9(3) entirely. A new Section 9A would be inserted to formally recognise emergency arbitrators for India-seated arbitrations, bringing India closer to leading international arbitration hubs.
The AZB and Partners analysis of the Draft Bill has flagged that while this signals a further shift away from judicial intervention during proceedings, it raises genuine concerns about what happens when a tribunal’s own interim orders under Section 17 are not complied with and parties have no fallback to the court during the arbitration itself. The proposed changes also do not address the enforcement deficit that plagued Section 17 before the 2015 Amendment: if a party disobeys a tribunal’s interim order and the court is now legislatively excluded from intervening during proceedings, the tribunal’s orders may once again become unenforceable in practical terms. Practitioners and institutions that contributed comments to the Ministry of Law and Justice raised this concern as one of the most significant implementation gaps in the Draft Bill.
A practitioner’s perspective
In practice, a Section 9 application is one of the most strategically sensitive filings in commercial arbitration. The applicant must demonstrate a prima facie case, a genuine risk that the award will be defeated by the respondent’s conduct, and urgency sufficient to justify court intervention at the pre-tribunal stage. The ninety-day rule under Section 9(2) means that securing relief without being ready to immediately invoke arbitration is a trap: courts have consistently held that the gap between the Section 9 order and the Section 21 notice must be explainable and short.
At the post-award stage, Home Care Retail Marts has substantially altered the landscape. An unsuccessful party challenging an award under Section 34 may now seek interim protection of the subject matter or the amount in dispute, but at a materially higher threshold than applies to an award-holder. In practice, this means demonstrating not only the usual conditions for interim relief but also a compelling and specific basis for concluding that denial of protection would render the Section 34 challenge illusory. The non-binary nature of award outcomes, acknowledged expressly in Home Care Retail Marts by way of Gayatri Balasamy, is the strongest argument available to such an applicant: where an award is likely to be modified rather than wholly set aside, the unsuccessful party’s eventual rights may be more substantial than the award’s face suggests, and preserving the subject matter pending judicial scrutiny is not merely protecting an expectation but protecting a right that has not yet been fully determined.
On the standard for relief, while the Essar House versus Sanghi Industries debate continues to produce inconsistent outcomes across High Courts, practitioners advising clients should build their Section 9 applications on both standards simultaneously: establishing a strong possibility of asset diminution while also addressing the intent-based requirements of Order XXXVIII Rule 5. A Section 9 application that satisfies both standards is simply the safer brief.