Section 9 Relief Maintainable Even After Filing Enforcement Petition for Foreign Award: Bombay HC

The Bombay High Court has held that the remedy of interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 remains available even after the filing of a petition for recognition and enforcement of a foreign arbitral award under Part II of the Act, clarifying that such enforcement proceedings do not extinguish the jurisdiction of courts to grant protective reliefs prior to the award attaining the status of a decree.

A Single Judge bench of Justice Somasekhar Sundaresan held that a foreign award does not automatically become enforceable upon filing of a petition under Sections 47 and 48, and that Section 9 relief can be availed until the stage contemplated under Section 49 is reached, where the Court is satisfied that the award is enforceable and is deemed to be a decree.

The petitioner, a Cyprus-based shipping company, had obtained a foreign arbitral award dated 23.03.2020 for a sum of USD 269,105.08. Pending enforcement, it approached the Bombay High Court under Section 9 seeking interim measures to secure the awarded amount. In parallel, it had also filed an enforcement petition under Sections 47 and 48 of the Act.

The respondent opposed the maintainability of the Section 9 petition, contending that once a petition under Part II is filed, enforcement and execution are rolled into a composite proceeding, thereby barring recourse to Section 9. It was argued that since a foreign award is treated akin to a decree for enforcement purposes, allowing Section 9 relief post initiation of enforcement proceedings would result in parallel proceedings and conflicting judicial determinations.

The respondent placed reliance on precedents to submit that the phrase “before it is enforced” under Section 9 must be interpreted to mean that once enforcement proceedings are initiated, the window for seeking interim measures closes. Drawing parallels with domestic awards, it was argued that once execution proceedings are commenced, Section 9 relief is no longer available.

The petitioner, however, distinguished between the statutory schemes governing domestic and foreign awards. It was submitted that while a domestic award becomes enforceable as a decree upon expiry of the challenge period under Section 34, a foreign award requires judicial recognition under Part II before it can be enforced as a decree.

Until such recognition is granted, the award remains incapable of execution, necessitating interim protection to ensure that it does not become a “paper award.”

The Court examined the scheme of the Act in detail, particularly Sections 9, 2(2), 36, and the provisions under Part II including Sections 46 to 49. It noted that Section 9 expressly permits a party to seek interim measures even after the making of an arbitral award, so long as it is before enforcement in accordance with Section 36. At the same time, the proviso to Section 2(2) extends the applicability of Section 9 to international commercial arbitrations seated outside India, provided the award is enforceable under Part II.

The Court observed that the respondent’s reliance on judgments concerning domestic awards was misplaced, as the enforcement regime under Section 36 is materially different from that applicable to foreign awards. In the case of domestic awards, the award becomes enforceable as a decree upon expiry of the limitation period for challenge or upon rejection of a Section 34 challenge.

In contrast, for foreign awards, the award does not automatically attain the status of a decree. It is only upon the Court being satisfied under Section 49 that the award is enforceable that it is deemed to be a decree of the Court.

The Court further noted that proceedings under Part II involve a threshold judicial determination on enforceability, including examination of grounds under Section 48. Therefore, the mere filing of an enforcement petition cannot be equated with execution proceedings, as the award has not yet crossed the stage of recognition.

Rejecting the respondent’s contention, the Court held that the phrase “before it is enforced” in Section 9 cannot be interpreted to mean “before filing of an enforcement petition.” Instead, enforcement must be understood as the stage when the Court declares the award enforceable and it becomes a decree under Section 49; Until that stage is reached, Section 9 jurisdiction remains available.

The Court also emphasized the practical necessity of interim measures in such cases, noting that denying Section 9 relief during the pendency of enforcement proceedings could render the award illusory, particularly where there is a risk of asset dissipation.

Accordingly, the Court held that the Section 9 petition was maintainable and that interim protection could be granted pending enforcement of the foreign award.

Case Title: Osterreichischer Lloyd Seereederei (Cyprus) Ltd. v. Victore Ships Pvt. Ltd.

Bench: Justice Somasekhar Sundaresan

Date of Judgment: 10.03.2026