How the Apex Court of India’s resolution of a narrow textual question quietly reshapes strategy in the post-award period
THE AUTHOR:
Shaili Apurva Shah, LL.M Graduate, National University of Singapore
Introduction
In Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi (2026 INSC 415), the Supreme Court of India answered a question that had divided the High Courts of India for over a decade: can a party that has lost in arbitration still invoke Section 9 of the Arbitration and Conciliation Act 1996 (“the Act”) after the award is rendered but before it is enforced? The Apex Court held in the affirmative, inter alia holding that the expression “a party” in Section 9, defined without qualification under Section 2(1)(h) of the Act, cannot be read down to mean only the successful party. The Bombay High Court’s contrary view in Dirk India Pvt. Ltd. v. Maharashtra State Power Generation Co. Ltd., and the line of cases that followed it from the Delhi, Madras and Karnataka High Courts, were overruled.
On its face, this is a tidy exercise in statutory construction. The Apex Court read the plain text of Section 9 of the Act, compared it against the more conservative formulation in Article 9 of the UNCITRAL Model Law, and concluded that the legislative intent had deliberately expanded the Indian provision to cover three distinct stages, including the post-award, pre-enforcement window, without carving out any class of party from its reach. Most commentary on the decision will likely stop there, treating it as a welcome piece of doctrinal housekeeping that removes an asymmetry between winning and losing parties.
That reading understates what the judgment actually does. The practical effect of recognising a free-standing right in the unsuccessful party to invoke Section 9 the moment an award is signed, independent of and prior to any Section 34 challenge, is to hand award debtors a procedural instrument they did not previously possess in any reliable form. This is worth examining not as a question of textual fidelity, which the Apex Court has now settled, but as a question of what litigants and their counsel will do with the tool they have just been given.
The Pre-Existing Architecture, and What Has Changed
Before this decision, an award debtor’s principal avenue for resisting or slowing enforcement was under Section 34 of the Act, read with the conditional stay mechanism under Section 36(2) and (3). That pathway has an inbuilt discipline. A party seeking a stay must first file a substantive challenge to the award, and the stay itself is governed by the proviso to Section 36(3), which permits unconditional stay only on a prima facie showing that the award or the underlying arbitration agreement was induced by fraud or corruption, and otherwise allows stay only on terms, often involving deposit of the awarded sum. The award holder, in other words, retains de facto access to the fruits of the award unless the debtor clears a deliberately elevated bar.
Section 9, as now construed, does not carry the same inbuilt discipline. An applicant invoking it need not have filed a Section 34 petition at all. The threshold is the ordinary equitable triad reiterated by the Apex Court itself: a prima facie case, balance of convenience, and likelihood of irreparable harm, the same standard articulated in Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India Ltd. This is a materially lighter showing than what the proviso under Section 36(3) demands of a party seeking an unconditional stay, and it is available to the debtor at the earliest possible moment, the day the award is signed, rather than only once a Section 34 petition is on file and a stay application has been argued.
The Apex Court anticipated the perils inherent in this position. It said in terms that the threshold for an unsuccessful party should be “higher” and that such relief should be confined to “rare and compelling circumstances” where denial would cause manifest injustice. However, it is imperative to find precision in what that qualification actually supplies. It does not specify how the existing prima facie case standard is to be recalibrated for an unsuccessful applicant. It does not allocate a burden of proof beyond the ordinary one. It does not identify which categories of case will qualify as rare and compelling, beyond the illustrations the Apex Court itself offers, namely awards rendered without proper notice, awards prima facie tainted by fraud, the protection of non-prejudicial ancillary rights such as confidentiality undertakings, and the partial-success scenario where a counterclaim inflates a party into nominal defeat. Useful as these illustrations are, they are not a test. They are examples, and Indian commercial courts, faced with countless Section 9 petitions a year, are not well placed to convert open-ended illustrations into a consistent screening mechanism at the interlocutory stage, where courts seldom have the time or occasion to engage closely with such fine distinctions.
The Strategic Opening For Award Debtors
Consider the position of a respondent who has just lost an arbitration of any real commercial size. Until now, that party’s options were to pay, to negotiate, or to file a Section 34 challenge and seek a stay under the now-familiar conditional regime. The decision in Home Care Retail Marts adds a fourth option that can be exercised in parallel with, or even prior to, any of the other three: file a Section 9 petition addressed not to the validity of the award but to the protection of the “subject matter of arbitration” or the “amount in dispute,” language the Court itself notes is broader than the narrower idea of securing the “fruits of the award”.
The tactical value of this option lies less in its ultimate success rate than in its immediate effect. A Section 9 petition, once filed, requires a response from the award holder, frequently accompanied by an ad interim order preserving the status quo until the matter is heard. For an award holder seeking to move quickly to enforcement under Section 36, perhaps to recover dues, perfect security, or release funds for downstream commercial use, an unsuccessful party’s Section 9 petition introduces an additional procedural front that must be defended before enforcement can proceed unimpeded. The order under Section 9 is appealable under Section 37, a point the judgment itself notes in distinguishing Section 9 from orders under Section 36, which adds a further potential round of proceedings before the matter is resolved.
None of this requires bad faith on the part of the debtor’s counsel. A debtor with a genuinely arguable Section 34 challenge, particularly one falling within the categories the Apex Court itself flagged, such as a partial-success award vulnerable to severance under the modification jurisdiction recognised in Gayatri Balasamy v. ISG Novasoft Technologies Ltd, will have entirely legitimate reasons to seek interim protection pending that challenge. The difficulty is that the same procedural tool is equally available to a debtor whose Section 34 prospects are weak, and who has every commercial incentive to use the few months between award and enforcement to negotiate a discount, restructure assets, or simply buy time. The Apex Court’s “rare and compelling circumstances” standard does not, on its own, separate these two applicants at the point of filing, when an interim order is often sought and sometimes granted before the merits of the underlying challenge have been tested.
What Award Holders, and Their Counsel, Should Now Anticipate
The practical consequence for parties advising award holders is that enforcement planning can no longer treat the period immediately following an award as a clear runway. Counsel acting for the successful party should now build in the realistic possibility of a counter-Section 9 petition as a standard contingency, not an exceptional one, particularly in cases involving counterclaims, partial awards, or any factual matrix touching on notice or procedural irregularity that an unsuccessful party could plausibly dress up as a fraud or due-process argument under the categories the Apex Court has expressly sanctioned.
This has knock-on effects upstream, at the drafting and tribunal stage. Award holders’ counsel may increasingly press tribunals to address asset protection and security questions within the award itself, or to issue interim or partial awards that crystallise undisputed portions of a claim earlier, precisely so that there is less scope for a later, broader Section 9 petition addressed to the “subject matter” of a dispute that has, in substance, already been narrowed. Equally, parties anticipating an adverse award with severable components may now have a stronger incentive to seek protective directions from the tribunal itself before the award is rendered, since post-award interim relief from a court is no longer reliably confined to the award holder.
There is also a settlement dimension worth naming plainly. Litigation tools that impose cost and delay on one side without a high likelihood of ultimate success on the merits have historically functioned, in Indian commercial litigation generally, as leverage in settlement negotiations rather than as genuine attempts to vindicate rights. A Section 9 petition by an unsuccessful party, filed promptly after an adverse award, plausibly performs the same function here. It signals to the award holder that enforcement will not be straightforward, raises the cost of moving to Section 36, and creates room for the debtor to extract concessions, whether in the form of a reduced settlement figure, an extended payment timeline, or a negotiated security arrangement, that the debtor would have had no comparable leverage to demand under the pre-Home Care Retail Marts position.
Conclusion
It is also worth situating this development against the broader direction the Act has taken since the 2015 and 2021 amendments, both of which moved consistently toward limiting judicial interference and protecting the practical finality of arbitral awards, most visibly through the removal of the automatic stay on enforcement and the tightening of the grounds available under Section 34. The decision in Home Care Retail Marts is textually faithful to Section 9 as drafted, and the Apex Court is right that the legislative intent is a deliberate departure from the UNCITRAL Model Law which supports its reading. However, the practical effect of that reading, an unsuccessful party’s near-automatic access to a new pre-enforcement forum, sits somewhat uneasily alongside that legislative trajectory. The Apex Court has not erred in its interpretation, but it has, in effect, reopened a procedural avenue for delay at precisely the stage of the arbitral lifecycle that the rest of the statute has spent a decade trying to streamline.
Whether this tension resolves itself through restrained exercise of discretion by commercial courts, as the Apex Court clearly hopes, or hardens into a standard item in every award debtor’s playbook, is likely to become apparent within the next two to three years of reported Section 9 orders. Until then, practitioners on both sides of the post-award divide would do well to treat this decision not as a tidy clarification but as the opening of a new, and currently underspecified, field of contest.
ABOUT THE AUTHOR
Shaili Apurva Shah is an Indian-qualified lawyer and an Associate at Rashmikant & Partners, a leading disputes firm in India, where her practice spans arbitration, civil procedure, and commercial litigation. She holds a Master of Laws (LL.M.) from the National University of Singapore. Prior to her LL.M., she gained substantial experience at Wadia Ghandy & Co., Mumbai, working across dispute resolution and real estate matters, and has also worked with Shardul Amarchand Mangaldas, Mumbai.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
