Bombay HC – Section 9 – Post-Award Interim Reliefs Must Aid Enforcement of Foreign Award, Not Expand it against Third Party
The Petition involves the issue of permissibility to make interim measures under Section 9 of the Act against a third party, who is deleted from enforcement proceedings filed by the award creditor under Sections 48 and 49 of the Act and against whom the award is no longer enforceable.
The Respondent No.1 Amstrad had agreement for purchase of AC units from the petitioner China company.
The purchase order dated 23.10.2020 had arbitration clause.
Vijay Sales (India) had links with Amstrad since its promoters and directors held key managerial positions in Amstrad. Vijay Sales had executed guarantee certificate on 28.2.2020 for full payment upto USD 10 million in the event of default by Amstrad to Ningo. The guarantee certificate was valid from 1.3.2020 to 31.8.2021.
However, in response to the letter dated 24.4.2021 of Ningbo, Vijay Sales had informed that all dues payable to Amstrad were fully paid.
Ningnbo filed arbitral claim before Shanghai International Arbitration Centre initially against both Amstrad and Vijay Sales. However, on the verbal instructions of the case manager, the said arbitral claim was re-filed after deleting Vijay Sales.
On 30.11.2023, Shanghai Arbitration Centre passed award in favour of Ningbo.
Since the respondents failed to pay the awarded amount, the petitioner filed enforcement petition under Sections 47 and 49 of AA in the High Court. On 12.3.2025, ex pare order directing the respondents to disclose assets was passed and it was confirmed on 3.4.2025.
However, by the order dated 4.7.2025, the applications of Vijay Sales for its deletion from enforcement proceedings. and also for vacating asset disclosure order were allowed. This order had attained finality.
In this background, the petitioner filed section 9 petition for interim measures.
Ms. Kshama Loya, the learned counsel appearing for Petitioner Ningbo submits that after a foreign award becomes enforceable, the award creditor can execute the same against third parties by lifting the corporate veil and by invoking the ‘group of companies’ doctrine. That in the present case, Amstrad and Vijay Sales are closely interlinked as they have common and overlapping key management personnel.
Section 9 read with Section 2(2) of the Arbitration Act and the closing statement of Section 9(1) of the Arbitration Act permits parties to seek post-award interim reliefs against third parties.
HELD that the post-award petition under section 9 is maintainable even in respect of international commercial arbitration. In other words, the applicability of section 9 is not automatically excluded in respect of foreign-seated institutional arbitration unless there is agreement to the contrary.
The remedy for interim measures under Section 9 of the Arbitration Act is not a standalone remedy and it is in aid of some substantive proceedings viz. arbitral proceedings or enforcement proceedings. Once it is held in enforcement proceedings that there is no underlying liability against a third-party, Section 9 route cannot be adopted to fasten the very same liability against that party in an indirect manner.
Judgment dated 28.1.2026 of the High Court of Bombay in Commercial Arbitration Petition No.983 of 2025 of Ningbo Aux Imp & Exp Co. Ltd Vs. Amstrad Consumer India Private Limited and Vijay Sales (India) Pvt Ltd.
