Closing the Conflict, Opening the Floodgates? The Practical Implications of the Home Care Ruling
This article critically examines the Supreme Court’s ruling in Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi, which permits unsuccessful parties to seek post-award interim relief under Section 9 of the Arbitration and Conciliation Act, 1996. It advances the novel argument that this expansive interpretation, despite its textual justification, risks circumventing the statutory safeguards under Sections 34 and 36, while exposing arbitration to procedural misuse and inconsistent judicial intervention. By juxtaposing India’s framework with international arbitration regimes and the Court’s reasoning in Popular Caterers, the article highlights an unresolved doctrinal tension between access to interim remedies and the foundational objectives of arbitral finality, expeditious resolution, and minimal judicial interference.
Introduction
The Supreme Court in Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi, (‘Home Care’) has attempted to clarify an oscillating proposition of law. Pertinently, the question as to whether a Section 9 application, under the Arbitration & Conciliation Act, 1996 (‘the Act’) can be made by an unsuccessful party. As per Section 9, a party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a court for interim measures. While the general understanding is that the courts shall be kept outside the scope of arbitral proceedings, Section 9 functions as an anomaly by explicitly permitting the intervention of the court. This is modelled on Article 9 of the UNCITRAL Model of Arbitration, which states that such a scenario is not incompatible with arbitration. However, as noted in Home Care, Section 9 has witnessed a plethora of differing interpretations by various High Courts, while drawing criticisms that such interpretations erode its legislative intent. Herein, the author attempts to analyse whether the Apex Court’s stance in bringing this debate to a close embodies a conclusive approach, or whether it leaves the floodgates open for the next bundle of problems. In this article, the author attempts to analyse the Home Care ruling in four parts. First, the author analyses the conflict between various high courts in interpreting Section 9. Second, the author provides a brief into the Supreme Court’s conclusive decision on this front. Third, the author assesses Section 9 vis-a-vis its international counterparts. Last, the author analyses the potential implications this judgment draws.
The Conflicting Jurisprudence
In 2013, the Bombay High Court in its decision in Dirk India Pvt. Ltd. v.. Maharashtra State Electricity Generation Co. Ltd (‘Dirk India’) held that the petitioner could not file an application under Section 9 of the Act as it did not have an award in its favour. The court held that, while before and during the proceeding, Section 9 exists to protect the subject-matter of the dispute, once the award has been conferred, Section 9 must be construed solely as a protective order in aid of the enforcement of the award. The court further stated that a contrary interpretation would enable an unsuccessful party to effectively set aside the avoid, without having to follow due process under Section 34 of the Act, which lays down the rightful procedure to set aside an award.
Similarly, the Delhi High Court, placing reliance on the aforementioned 2013 decision, in its decision in Nussli Switzerland Ltd. v. Organizing Committee Commonwealth, held that an unsuccessful party cannot file an application for interim measures under Section 9. This interpretation was repeated by the same court in 2023, in its decision in National Highways Authority of India v. Punjab National Bank and Anr., with the reasoning that once the arbitral award is made, the intent of Section 9 is modified into protecting the award, and not the subject matter of the proceedings. This was also adhered to by the Karnataka High Court.
Per contra, the Gujarat High Court in GAIL (India) Ltd. v. Latin Rasayani Pvt. Ltd., held that Section 9 does not hold a distinction between successful parties and unsuccessful parties to disenfranchise unsuccessful parties from approaching the court for interim measures. The Telangana High Court, in its decision in M/s Saptarishi Hotels Pvt. Ltd & Anr. vs. National Institute of Tourism & Hospitality Management, relied on the Gujarat precedent and reaffirmed that “a party” under Section 9, must be construed as all parties, regardless of success. This stance was reiterated as recently as 2025, by the Punjab and Haryana High Court, in its decision in M/s DLF Home Developers Ltd. vs. M/s Orris Infrastructure Pvt. Ltd. & Ors., wherein the court stated that an argument that Section 9 can only be filed by a successful party must be rejected as an award does not signify a binding truth that one side has won and the other has lost, rather merely signifies that certain claims have succeeded, while others are rejected.
The Recent Stance
The decision put forth by the Supreme Court in Home Care is premised on answering this question of law. The judgment, delivered by Justices Manmohan and Manoj Misra, arose from a batch of Special Leave Petitions, stemming from commercial disputes where losing parties faced dismissed Section 9 petitions. In the lead matter, Home Care Retail Marts Pvt. Ltd. was involved in arbitration arising out of a leave and licence agreement pertaining to a commercial property in Kandivali West, Mumbai. The arbitrator rejected the petitioner’s prayer for specific performance of a purchase option letter as not maintainable. The Bombay High Court subsequently dismissed the Section 9 application filed by the unsuccessful party, relying on its earlier decision in Dirk India, which held that only a successful party could seek interim measures at the post-award stage to protect the “fruits of the award.”
The Supreme Court resolved the conflict among the High Courts by holding that any party to an arbitration agreement, including an unsuccessful party in arbitration, may maintain a Section 9 petition for interim measures at the post-award stage, up to enforcement under Section 36. The Court’s reasoning rested on several grounds.
First, the Court adopted a plain and textual interpretation of the statute, holding that the phrase “a party” cannot be contextually modulated based on the outcome of arbitration without amounting to judicial legislation, and that neither Section 2(h) nor Section 9 draws any distinction between a successful and an unsuccessful party.
Second, the Court rejected the “fruits of the award” doctrine, reasoning that this doctrine is not a statutory limitation but a judicial construct that cannot override legislative text. The Court further held that Sections 34 and 36 govern enforcement and stay, but neither provision safeguards the subject matter of a dispute or assets in the interregnum, making Section 9 indispensable.
Third, the Court drew support from Gayatri Balasamy v. ISG Novasoft, which recognised that courts can modify awards in limited cases, thereby reinforcing that an arbitral award does not always represent an immutable determination of rights, and that an unsuccessful party could accordingly be left remediless in the absence of Section 9 protection.
However, the Court was careful to circumscribe the scope of this ruling. It held that courts would be well advised to exercise care, caution and circumspection while dealing with a Section 9 application filed by an unsuccessful party, and that the threshold for the grant of interim relief would be higher in such cases. Only in rare and compelling cases would permitting the unsuccessful party to invoke Section 9 prevent irreparable prejudice and preserve the efficacy of challenge proceedings.
International Counterparts
Notably, Section 9 of the Indian Act specifically delineates the stages at which a party can file for interim relief as (i) before, (ii) during and (iii) after the making of the arbitral award. In contrast, Article 9 of the UNCITRAL model states that a party might apply for the same solely before or during the arbitral proceedings, perhaps to reinforce the notion that it is a party who bears the fruits of the arbitral award who may only reap its benefits. Along similar lines, Section 21 of the Hong Kong Arbitration Ordinance, Section 11 of the Malaysian Arbitration Act, 2005 and Section 16 of the Australian International Arbitration Act, 1974 state that such measures can only be applied before or during the arbitral process.
The Apex Court, in Home Care used this point of differentiation to reason that the deliberate inclusion of the stage ‘after’ the making of the arbitral award was vested, envisioning the ability of both parties to file for interim measures. Jurisdictions such as Singapore and England in their Acts, under Section 31 and Section 44 follow suit as they deliberately exclude classifying the stage in which a party might apply for interim measures. This deliberate exclusion allows for any party to file during all stages of the arbitration, including after the making of the arbitral award.
Analysis and Conclusion
While the present stance states that any party may file for interim measures, there are some things to note. Pertinently, the court in home care bolstered its reasoning by taking into account the fact that a party may be left remediless as the award is susceptible to modification, or even, to be set aside. However, this would not be the case as the unsuccessful party is still entitled to avail a twofold benefit made under the Arbitration Act for setting aside of the award under Section 34, and applying for a stay on the award under Section 36(2) and Section 36(3) which allows the court to stay the award “subject to conditions it deems fit” to ensure that there is a balance of consideration and equity. On the other hand, it can be argued that Section 9 does not possess any uniformly applied, unambiguous and inbuilt safeguard to ensure that an unsuccessful party would not misuse it or use it as a delay tactic.
Furthermore, even if certain claims have been rejected as the court pointed out in Gail, this would not disentitle the party from approaching the court under Section 36 to impose conditions that balance their interest. It is also pertinent to note that the Apex court, fairly recently, in its decision in Popular Caterers v. Ameet Mehta (‘Popular Caterers’), has held that Section 36 cannot be used as an unconditional stay and must be granted only in exceptional circumstances. In this context, it can be argued that the Supreme Court in Home Cares circumvented its own previous reasoning in Popular Caterers.
Finally, as argued in Home Care, an order under Section 9 is capable of being appealed under Section 37, once again leading to further delay, a multiplicity of proceedings and more judicial intervention into an arena that aims to be outside the scope of unnecessary judicial interference. This erodes the two pillars on which arbitration rests, namely, speedy resolution and a lack of judicial interference. On reading Section 9 within the objectives of the Act, it is doubtful whether the legislators envisioned this remedy to function contrary to the scheme within which it operates. This raises the question of whether entitling a party to obtain a relief greater than Section 34, would open the floodgates to a multiplicity of proceedings and a circumvention of the process envisioned under the Act. Therefore, it is time that the Supreme Court addresses such lacunae at the earliest.