Author: Yash Sinha*
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Arbitration works because of one promise. A party that wins its case should be able to enforce what it won, on a predictable timeline.
In April 2026, the Supreme Court of India (“the Court”) let a losing party break that promise. In Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi (“Home Care”), the winning party had already won its case and held a valid award. Even so, the Court ruled that the losing party could still ask a court to freeze the winner’s assets, a conclusion this piece sets out to refute.
The source of the dispute is Section 9 of India’s Arbitration and Conciliation Act, 1996 (“the Act”). Like Article 9 of the UNCITRAL Model Law on International Commercial Arbitration, 1985, it lets a party ask a court for temporary protection while arbitration is still underway.
India goes further than the Model Law by also allowing this kind of protection after an award. On a fair reading of the statute, that extension was designed with the winner in mind. Its purpose was to protect the winner’s ability to collect what the tribunal awarded. Home Care stretches this further still, letting even the losing party use it after the case has ended.
The stakes extend beyond this one case. Home Care itself was a domestic dispute. But Section 9 also covers foreign-seated arbitrations, giving the ruling international reach.
That reach makes the Court’s reasoning worth testing closely. Tested against the Act as a whole, that reasoning does not hold up.
What Changes Once the Award Is Rendered
Before the award, the two sides were rivals in an open contest. Naming a winner ends that contest and, with it, their equality.
The Act shows how decisively this happens. It does this in two separate strokes.
Section 32 ends the tribunal’s authority. Once the award is given, the tribunal has no power left to act. There is no tribunal left, so there is nothing for the parties to fight in front of. Section 35 works alongside this. It makes the award final and binding on both sides. Because of that, the winning party can go straight to court and collect what it is owed, without clearing any other legal hurdle first.
Together, these two strokes change what remains after the award. It is no longer a dispute over who is right. It is only the winning party trying to get paid.
This is what redefines Section 9’s function. Before the award, its role was to stop either side from wrecking a result that did not yet exist. Once the award exists, there is no longer a result to preserve from being wrecked. There is only a result to be paid. But that payment can still be frustrated before it happens, for example if the loser hides or moves its assets. So the winner still needs Section 9 to guard the payment until it is actually made. For the successful party, Section 9 still serves a coherent purpose even after the award.
Risk is only part of the explanation. There is a second reason. An arbitration’s aim was never just to decide a result. It was also to make that result count. If making the result count is part of arbitration’s purpose, then that purpose is not complete the moment the award is signed. The winner’s connection to the arbitration therefore survives until the award is actually realised.
That is also the rule Indian courts have consistently applied. They have repeatedly held that Section 9 exists only to help the arbitration process. A party cannot use it for relief that has nothing to do with the arbitration (see Sundaram Finance Ltd. v. NEPC India Ltd. and GATX India Pvt. Ltd. v. Arshiya Rail Infrastructure Ltd.).
The winner’s request for protection therefore meets this test easily. Getting the award paid is not a fight separate from the arbitration. It is the arbitration’s last unfinished task. Guarding it until enforcement keeps Section 9 doing exactly what it was always for.
For the losing party, that same interest has already run out. Interim relief exists to protect an outcome that is still open. Once the tribunal decides the case, the outcome is no longer open. It already belongs to the winner. So the losing party has nothing left to protect, and the winner has everything to protect.
Home Care disagrees, and offers two reasons why the loser still has something left to protect. Neither holds up.
The first is remand. The remand power sits inside Section 34, the Act’s provision for challenging an award in court. Section 34(4) lets the court pause that challenge and send defects back to the tribunal to fix, while the rest of the award stands.
This claim does not survive the Court’s own recent ruling in Gayatri Balasamy v. ISG Novasoft Technologies. A remand does not give the losing party a second shot at winning. Instead, it only lets the tribunal fix one narrow defect while the underlying outcome stays intact. It cannot rewrite the award on the merits or set it aside.
The second grants the losing party’s furthest hypothetical. Suppose the award is thrown out entirely and the dispute goes to arbitration again from scratch. This still fails.
The Act deals with existing disputes, not future possibilities. Section 36, the mechanism that carries the award to actual payment, is exactly where Parliament had the chance to protect a loser who might still win something later. That opportunity lay in Section 36(3), which lets a court pause that payment. It covered two stages, a challenge under Section 34 and an appeal under Section 37, the route for taking that challenge to a higher court.
If Parliament wanted to give weight to a possible future win by the loser, it could have blocked enforcement until both were finished. Section 36(3) was where it would have done so. It did not. So a hoped-for future victory carries no protection of its own. Section 9 should be read the same way.
The Act makes the same point again elsewhere. When an award is cancelled and the dispute must go back to arbitration, Section 43(4) does not treat the new arbitration as a continuation of the old one. Instead, it resets the clock. The party gets a fresh time limit to begin a new arbitration, as though the earlier one had never happened. Parliament therefore treats the two arbitrations as legally separate. What may happen in the future one cannot reshape the rights created in the present one.
Neither of Home Care’s reasons leaves the loser with anything left to protect. The decision then falls back on the bare word ‘party’ in Section 9, arguing that it covers the loser just as much as the winner. But does that word carry a fixed meaning, one that gives the winner and the loser the same access to court regardless of who won?
Does the Text Really Support Home Care?
Section 9 could be read as a general power available at any stage, to any party. The rest of the Act says otherwise.
The word ‘party’ does not carry one fixed meaning across the Act. Its meaning shifts with the stage of arbitration in which it appears.
Section 34 shows this clearly. That section lets a ‘party’ ask a court to cancel an award. Taken at face value, even a party that won every issue could ask to cancel its own win. That result would be absurd. A party that has won has nothing left to challenge. So the word ‘party’ only works once it is read alongside what Section 34 is actually for.
The word causes no such trouble in sections that let a ‘party’ start arbitration, choose an arbitrator, or object to a tribunal’s authority. At those stages, both sides are still equal. Neither has won or lost yet.
Section 9 is different. It applies at more than one stage. Sometimes it is used before the dispute is decided, while both sides are still equal. Sometimes it is used again after the dispute is decided.
Parliament therefore chose the stage-neutral word ‘party’, leaving its precise meaning to be supplied by context.
That is exactly why the same word bends differently before and after an award. Before an award, ‘party’ means either side, since both are still equal. After an award, it should mean something narrower, since one side has already won and the other has already lost. Section 9 may look, on its face, capable of serving either side after an award. But only one side still has something left to gain from it.
The Act’s definition of ‘party’ confirms this. It does not lock the word ‘party’ to one fixed meaning. It lets the meaning change with context, which is exactly what the narrower post-award reading requires.
Home Care reaches the opposite conclusion. It can only do so by relying on a separate assumption that it never states out loud. Home Care treats the post-award stage as though the dispute were still being decided, as though nothing had changed since the award was made. But that assumption only works if the post-award stage is simply a continuation of the arbitration.
This assumption can be tested directly. If the arbitration had truly continued past the award, the tribunal would still be deciding disputes arising out of that arbitration. Instead, the tribunal disappears completely once the award is given. It has no power left to decide anything. Everything that happens after the award is handled by courts, which only perform two functions.
First is the challenge under Section 34. This challenge is limited. It is narrower than a full appeal and does not reopen the original dispute.
Second is Section 36, which does something different. Rather than hearing any challenge, it gets the award paid.
Taken together, these are the only things the law leaves for courts to do after an award. Sections 34 and 36 show that the post-award stage is a different legal stage from the arbitration itself. The winner moves toward enforcement. The loser can only resist it.
That change in stage is what gives the textual argument its force. ‘Party’ narrows after an award precisely because the arbitration has ended.
And of the two doors left open after an award, Section 36 is especially important for another reason. This is best read as the only post-award protection Parliament meant the loser to have.
How the Law Already Protects Losing Parties After an Award
That protection lies in Section 36(3). Its history explains why. How Parliament reshaped it reveals not only what protection it chose to give the losing party, but also what it deliberately withheld.
Before 2015, a losing party could freeze payment for years, just by filing a challenge. No court order was needed. As soon as the award was made, the winner was supposed to be able to go and collect what it was owed. But that freeze kicked in automatically the moment a challenge was filed, so the winner never actually got the chance to collect. The 2015 amendments to the Act got rid of that automatic freeze.
After 2015, the winner can finally collect the way Parliament always intended: immediately, unless a court specifically steps in to stop it. Filing a challenge no longer stops enforcement on its own. The loser must now obtain an express stay under Section 36(3), and that stay is not free.
Section 36(3) borrows an ordinary rule from India’s civil procedure. That rule applies whenever any court order requires someone to pay money, not just arbitration awards. Before a court will pause enforcement, it can require the losing party to put up cash or provide security first. Sometimes courts demand a large share of the awarded amount. Sometimes they demand all of it. This deposit requirement is not a minor technical detail. It is the price Parliament attached to any delay in paying the award.
This price only works as intended if Section 36(3) is the only route to post-award relief. If a second, free route exists alongside it, the price stops mattering. A losing party will simply take that route instead, leaving the deposit requirement to bite only those unwise enough to use it.
This is why the 2015 amendment reflects a clear legislative choice. It was a considered decision to make enforcement the rule and delay the exception. Under this choice, a challenge to the award could no longer stall payment for free.
This choice was later tested directly. Parliament itself tried to revive automatic stays, but the Court struck that down. Automatic stays, the Court reasoned, risk pushing award-holders toward insolvency. Challenges in India take, on average, six years to resolve, long enough for that risk to become a real one. Restoring that system, the Court held, was constitutionally arbitrary.
Home Care cuts across that design by slowing enforcement and making delay cheaper.
How Home Care Undermines That System
Home Care upsets a balance Parliament built with some care. Section 36(3) already gives a losing party one route to pause enforcement, but only on conditions. Home Care goes further. It lets the same party add a Section 9 application on top of that, turning one route into two.
Here is how that plays out. A losing party files a challenge to the award under Section 34. At the same time, it asks for a stay under Section 36(3). The court agrees, but only if the party deposits half the award amount. The party pays, and enforcement is paused.
Under Home Care, that same party can now also file a separate Section 9 case. It can ask the court to freeze the winning party’s own assets.
Two cases now run side by side, often in different courts. The winning party cannot enforce its award because of the stay. At the same time, its own bank accounts may be frozen because of the Section 9 order. Any losing party can stack a Section 36 stay with a Section 9 freeze and squeeze the winner toward a cheaper settlement.
The Court’s own reasoning should have caught this. It did not.
The Court’s reasoning rests on three tracks. First, what the word ‘party’ means. Second, why the loser needs a remedy at every stage. Third, whether Section 9 clashes with Sections 34 and 36. The stacking problem should surface here. It never does.
The Court says Sections 34 and 36 target the award itself, while Section 9 protects the property or money at stake. From that difference, it concludes that having one does not block the other.
It never asks what happens when a losing party uses both. It never considers whether that combination defeats the purpose of the security requirement, which is to make delay cost the losing party something.
The closest the Court comes to a safeguard is saying the bar for granting Section 9 relief to a losing party should be higher than usual.
That does not address the real problem. Whether the bar is low or high, a losing party that clears it still delays enforcement for free. The question is not who gets through the door. It is what that party owes once inside. Making Section 9 harder to obtain is not the same as making it costly to use.
That gap matters most when a losing party uses both routes at once. It must offer a deposit or security to pause enforcement under Section 36(3), but pays nothing to freeze the winner’s assets under Section 9. Home Care lets it keep both protections while paying for only one.
The damage does not stop there.
Under the Act, a Section 9 order can be appealed, while a Section 36 stay decision cannot. Home Care therefore gives the losing party two shots at freezing the winner’s assets. The first comes through the Section 9 application itself. If that fails, the losing party gets a second through an appeal. Parliament did not provide any comparable second chance under Section 36.
Home Care gives losing parties advantages that Parliament deliberately withheld from them after an award.
Concluding Remarks
The UNCITRAL Model Law ends interim relief once the tribunal delivers its award. India kept the power alive past that point. But how accessible was this power meant to be? The 2015 reforms point to an answer. They suggest that Parliament intended broad post-award access only for the winner.
By contrast, the loser was never meant to enjoy the same freedom. Any protection left after the award came with meaningful limits, limits Home Care simply erases. It gives the loser the broad access meant only for the winner.
That access should end there. Section 9 should be read as Parliament wrote it: strictly, not loosely. Courts should not let losing parties use it once the award is made. That is not a rule courts can soften with conditions or case-by-case judgment. Anything less asks courts to keep writing in a power the Act never granted.
Where courts grant it anyway, the effect is immediate, for smaller companies most of all. Winning an arbitration used to mean the winner could collect payment without much further delay. Under Home Care, it can instead mean facing a brand new court battle, this time over the winner’s own bank accounts. The winning party may spend years under financial pressure before it sees a single rupee.
And that delay is not a purely domestic risk. Section 9 applies to foreign arbitrations too, unless a contract expressly rules this out. A losing party in a London or Singapore arbitration can now freeze assets in India under Section 9. It can do this even while its own challenge to the award is still being argued in a foreign court.
An award that cannot be enforced is not a victory. It is only a promise. Parliament made sure that breaking that promise would cost something. Home Care lets the losing side pay that cost once, and break the promise twice.
*Yash Sinha is an alumnus of the National Law School of India University, Bangalore, India (2019), and a lawyer practising in New Delhi. He previously served as a judicial law clerk-cum-legal researcher to Justice P.S. Narasimha of the Supreme Court of India. His writing focuses primarily on commercial law, income tax law, and the amendability of the Indian Constitution, though he also writes on other areas of law