Maintainability of Post-award Section 9 Applications
On January 21, 2026, a full bench of the Madras High Court passed an order in a case titled BM Insulation answering questions of law raised by a single judge on the maintainability of applications filed post-award under Section 9 of the Arbitration and Conciliation Act, 1996, as amended (“Arbitration Act”). The reference was made in light of two inconsistent division bench judgements of the Madras High Court in Gopuram Enterprises and K. Puniyamoorthy. The full bench has held that a post-award Section 9 application is maintainable until the proceedings for execution of the arbitral award are concluded.
Briefly, Section 9 of the Arbitration Act1 empowers courts to grant interim measures of protection to parties before, during, or after arbitration, but before the award “is enforced in accordance with section 36”. The court may pass orders, inter alia, securing the amount in dispute in the arbitration, preserving property, or appointing receivers to ensure that the arbitration process and any arbitral award in favour of the applicant are not frustrated.
Section 34 of the Arbitration Act permits a party dissatisfied with the arbitral award to file an application to set aside the arbitral award within three (3) months (extendable by 30 days) of receipt of the arbitral award.
Section 36 of the Arbitration Act provides for enforcement of arbitral awards in accordance with the procedure prescribed in the Code of Civil Procedure, 1908 after the expiry of the time period within which an application challenging the arbitral award may be filed under Section 34 of the Arbitration Act, unless such enforcement has been stayed by the court adjudicating such challenge.
In India, obtaining a favourable award is only half the battle. Once the arbitral award is passed (and setting aside proceedings, if any, concluded), the identification of the competent court for filing an execution petition can take a substantial amount of time as it may require identifying or tracing the location of the award-debtor’s assets. In the meantime, there is a real risk of dissipation or diversion of assets by the award debtor to frustrate the enforcement of an arbitral award. Consequently, if an application to seek protective orders can be filed without delay before the court of the seat after an arbitral award is obtained, this would help to ensure that the award is not frustrated. Allowing the parties to apply for interim protection after the arbitral award provides an additional step towards the fruition of the arbitral award and is a ‘step in the aid of enforcement’. This is where an application under Section 9 of the Arbitration Act can play a strategic and crucial role.
However, courts in India have interpreted the words “before it is enforced in accordance with section 36” in Section 9 of the Arbitration Act in different ways leading to divergent views on whether a post-award Section 9 application before the court of the seat is maintainable after an arbitral award becomes enforceable under Section 36 of the Arbitration Act. In this note, we discuss the present state of the law on the issue in the context of the need for post-award Section 9 applications.
DIVERGENT VIEWS OF THE MADRAS HIGH COURT
Gopuram Enterprises
On February 15, 2021, in a case titled Gopuram Enterprises, a division bench of the Madras High Court interpreted the words “but before it is enforced in accordance with section 36” to hold that a party may apply to a court for interim measures under Section 9 only until such time that the arbitral award becomes “enforceable”. In other words, a post-award Section 9 application would only be maintainable until the expiry of the time period during which the award may be challenged under Section 34 of the Arbitration Act, unless a stay on the operation of the arbitral award is granted.
In support of its findings, the Madras High Court held that by virtue of the fiction in Section 36(1) of the Arbitration Act, the award holder metamorphoses into a decree-holder once the time prescribed in Section 34 of the Arbitration Act elapses. Further, a Section 9 court does not have the wide authority given to an execution court under Order XXI of the Code of Civil Procedure, 1908 (“CPC”), with the scope of orders that can be passed under Section 9 of the Arbitration Act being qualitatively different from the scope of orders that may be passed during execution under Section 36 of the Arbitration Act. Consequently, the award slips out of purview of the Arbitration Act and shifts to the domain of the CPC once it becomes enforceable.
K. Puniyamoorthy
On April 28, 2023, a single judge of the Madras High Court interpreted the word “enforced” in Section 9 of the Arbitration Act to mean “until the complete satisfaction of the award”. In other words, an award can only be considered to have been enforced once the award has been satisfied and the holder has been paid all amounts awarded.
The Court relied on decisions of the Bombay High Court in Dirk India and the Supreme Court of India in Hindustan Construction and Hameed Joharan to hold that the remedy under Section 9 of the Arbitration Act is in aid of enforcement and available to the award holder until “complete satisfaction of the award”, without which the successful party may be left with a paper award. While the Court noted the decision of the division bench in Gopuram, it observed that the decision was subsequent to the decision of the Supreme Court of India in Hindustan Construction which approved the ratio in Dirk India. The finding of the single judge in K. Puniyamoorthy was upheld by a division bench of the Madras High Court.
BM Insulation
In light of the two inconsistent division bench judgements of the Madras High Court in Gopuram Enterprises and K. Puniyamoorthy, a single judge of the Madras High Court referred the question of maintainability of post-award Section 9 applications under the Arbitration Act to a larger bench on September 1, 2025.
Eros International Media Limited
While the reference to the larger bench made in BM Insulation remained pending, another division bench of the Madras High Court in Eros International Media Limited held that a post-award Section 9 application is maintainable after passing of arbitral award and before it is enforced. The rejection of Section 9 proceedings on the basis of the institution or pendency of execution proceedings would defeat the purpose and object of Section 9 of the Arbitration Act. The Court further held that the Supreme Court of India has consistently reiterated that when the statutory language is plain and unambiguous, courts must give it effect without adding or subtracting words.
The Court observed that it need not consider decisions of the division benches of the Madras High Court or any other high court, including Gopuram as it is bound by decisions of the Supreme Court of India in Hindustan Construction and Shanghai Electric, which in the Court’s view, have upheld/affirmed the maintainability of post-award Section 9 applications.
To summarize briefly, in Eros International Media Limited, the Madras High Court has held that institution or pendency of execution proceedings does not bar the maintainability of Section 9 applications. In K. Puniyamoorthy, the Court has stated that the remedy is available to an award holder until “complete satisfaction of the award”. However, in Gopuram Enterprises, the Court has held that a post-award Section 9 application would only be maintainable until the expiry of the time period during which an award may be challenged under Section 34 of the Arbitration Act, unless a stay on the operation of the arbitral award is granted.
OTHER COURTS
This issue was discussed by a division bench of the Bombay High Court in Dirk India which held that an application under Section 9 of the Arbitration Act, when sought after an award is made but before it is enforced, is intended to safeguard the fruit of the proceedings until the eventual enforcement of the award. Interestingly, the Bombay High Court’s decision in Dirk India has been cited favourably by the Supreme Court of India in Hindustan Construction, although arguably in obiter, a decision in a writ petition challenging the constitutional validity of various provisions of the Insolvency and Bankruptcy Code, 2016 and certain amendments to the Arbitration Act.
The issue has also been discussed by the Delhi High Court in Shanghai Electric. While the award in Shanghai Electric was a foreign award (and therefore not to be enforced in accordance with Section 36 of the Arbitration Act), a division bench of the Delhi High Court observed that the word “enforced” is the past tense of the word “enforce” and consequently, “before it is enforced” implies a time until the award is fully satisfied. While the decision of the division bench in Shanghai Electric was challenged before the Supreme Court of India, the special leave petition was dismissed as withdrawn. Therefore, a final determinative view on this issue has not been expressed by the Supreme Court.
FULL BENCH DECISION
On January 21, 2026, a full bench of the Madras High Court answered the questions of law raised in the reference made by the single judge in BM Insulation. The court agreed with the decision in K. Puniyamoorthy and held that the phrase ‘before it is enforced’ in Section 9 to mean ‘until the complete satisfaction of the award’.
ANALYSIS
The primary rule of interpretation of statutes is that the plain language used by the legislature ought to be enforced wherever possible. When the language of a statute is clear, plain, and unambiguous, the legislative intent must be derived directly from the words themselves, without any additions or subtractions. The need for interpretation arises only when ambiguity exists.
The decision of the full bench in BM Insulation has provided much needed clarity on the maintainability of post award Section 9 applications for the holders of domestic awards applying to the Madras High Court for interim relief under Section 9 of the Arbitration Act.
Therefore, while it is difficult to say that the Supreme Court of India has finally decided the issue in either Hindustan Construction or Shanghai Electric, we are inclined to agree with the decision of the full bench of the Madras High Court in BM Insulation which concurred with the decision of the Delhi High Court in Shanghai Electric and the final decisions of the Madras High Court in K. Puniyamoorthy and Eros International that an application under Section 9 is maintainable until the award is executed (or satisfied) and the proceedings for its execution are concluded. This interpretation appears consistent with the plain language of Section 9 of the Arbitration Act and is also a step in aid of enforcement.
1. 9. Interim measures, etc., by Court
(1) 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—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.
(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.