Arbitration; Pre-deposit clause; Article 14; Section 18; S.K. Jain; ICOMM Tele Ltd.; Lombardi Engineering Ltd.; CORE; Larger Bench reference; Right to sue
 17 Aug, 2026
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M/S Santosh Associate Private Limited Vs. Haryana State Industrial and Infrastructure Development Corporation Ltd.

  Supreme Court Of India SLP (C) No. 31245 of 2025
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Case Background

As per case facts, the Appellant's claim was dismissed by the Sole Arbitrator and subsequently by the Commercial Court for failing to deposit a mandatory percentage of the claim amount ...

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Document Text Version

2026 INSC 872

SLP (C) No. 31245 of 2025 Page 1 of 16

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

@ SLP (C) No. 31245 of 2025

M/S SANTOSH ASSOCIATE PRIVATE LIMITED .…. APPELLANT

VERSUS

HARYANA STATE INDUSTRIAL AND INFRASTRUCTURE

DEVELOPMENT CORPORATION LTD. ..…RESPONDENT

J U D G M E N T

MANMOHAN, J.

1. Leave granted.

2. The present Appeal has been filed challenging the judgment dated 12

th

September 2025 passed by the Commercial Court, Gurugram whereby the appeal

filed by the Appellant under Section 37(2) of the Arbitration & Conciliation Act,

1996 (‘the Act’) was dismissed. The Commercial Court affirmed the order dated

1

st

August 2025 passed by the Sole Arbitrator, who had allowed the Respondent’s

application under Section 16 of the Act and dismissed the Appellant’s claim in its

SLP (C) No. 31245 of 2025 Page 2 of 16

entirety for non-compliance with the contractual stipulation requiring a prior

security deposit of ten per cent (10%) of the claim amount.

FACTUAL BACKGROUND

3. The Respondent invited e-tenders on 7

th

November 2016 for the execution

of storm water drainage systems and contingent works at Sector-35, Udyog Vihar,

Phase-VII, Gurugram. The Appellant participated in the bidding process and was

awarded the contract on 17

th

May 2017 for a total consideration of Rupees Five

Crore Fourteen Lakh Eleven Thousand Six Hundred and Thirty-Five Only

(₹5,14,11,635/-). The contract contained an arbitration clause, Clause 25-A(vii),

which mandated that a contractor , in the event of raising claims exceeding Rupees

One Lakh (₹ 1,00,000/ -), must deposit ten per cent (10%) of the claim amount as

security prior to reference to arbitration. Clause 25-A(vii) is reproduced

hereinbelow:

"It is also a term of this arbitration agreement that where the party invoking

arbitration is the contractor, no reference for arbitration shall be maintainable unless

the contactor furnishes to the satisfaction of the Executive Engineer In charge of the

work, a security deposit of a sum determined according to details given below and the

sum so deposited shall on the termination of the arbitration proceedings, be adjusted

against the cost, if any, awarded by the arbitrator against the claimant party, and the

balance remaining after such adjustment in the absence of any such cost being

awarded, the whole of the sum will be refunded to him within one month from the

date of the Award.”

Amount of Claims Rate of Security Deposit

i. For claims below Rs. 10,000/ - 2% of the amount claimed

ii. For claims of Rs. 10,000/ - 5% of the amount claimed

and above but below Rs. 1,00,000/-

iii. For claims of Rs.1,00,000 and above. 10% of the amount claimed….”

(emphasis supplied)

SLP (C) No. 31245 of 2025 Page 3 of 16

4. During execution, the project encountered site-related challenges, resulting

in a significant reduction in scope. Consequently, the contract value was revised

to Rupees Two Crore Forty Lakh Ninety- Three Thousand and Fifty-Nine Only

(₹2,40,93,059/-) on 19

th

January 2021. Upon completion of the reduced scope,

disputes arose concerning final settlement of payments.

5. On 8

th

August 2024, the High Court of Punjab and Haryana exercising

jurisdiction under Section 11(6) of the Act appointed Justice (Retd.) Surender

Gupta as Sole Arbitrator. At the threshold of proceedings, the Respondent filed

an application under Section 16 of the Act, contending that the reference was not

maintainable owing to the Appellant’s failure to furnish the mandatory ten per

cent (10%) deposit for claims exceeding Rupees One Lakh Only ( ₹1,00,000/).

6. The Sole Arbitrator upheld the Respondent’s objection and directed the

Appellant to deposit ten per cent (10%) of the claim amount within fifteen (15)

days. Upon refusal, the Appellant’s claim was dismissed in entirety.

7. Aggrieved by the same, the Appellant filed an appeal under Section 37(2)

of the Act before the Commercial Court, Gurugram. By order dated 12

th

September 2025, the Court dismissed the appeal, holding that the Arbitrator’s

view was plausible and supported by the precedent in S.K. Jain vs. State of

Haryana, (2009) 4 SCC 357.

SUBMISSIONS ON BEHALF OF THE APPELLANT

8. Mr. Shreeyash U. Lalit, learned counsel for the Appellant, argued that

Clause 25-A(vii) is unconstitutional, being violative of Article 14 of the

SLP (C) No. 31245 of 2025 Page 4 of 16

Constitution of India. He submitted that the clause discriminated against

contractors by requiring them alone to furnish a pre-deposit, while the State was

exempt.

9. He further submitted that the requirement of a ten per cent ( 10%) deposit

bore no rational nexus to the objective of curbing frivolous claims, since such

claims could always be addressed through costs at the conclusion of arbitration

under Section 31(8) of the Act. He also pointed out that on a claim of Rupees One

Crore Seventy Seven Lakhs (₹1,77,00,000/ -), as in the present instance, the

Appellant would have to furnish a security deposit of Rupees Seventeen Lakhs

Seventy Thousand (₹17,70,000/-), whereas the ad valorem court fee payable in a

Civil Suit in Haryana on the same amount of claim would merely amount to

Rupees Seven Lakhs Sixteen Thousand Three Hundred (₹7,16,300/-).

10. He contended that reliance in the impugned order upon S.K. Jain (supra)

is misconceived. In that case, this Court had rejected the plea of unequal

bargaining power and unconscionability but had not examined whether the

arbitration clause was violative of Article 14. According to learned counsel, the

clause is manifestly one-sided, operating solely against contractors and is

contrary to Section 18 of the Act which mandates equal treatment of parties at all

stages of arbitral proceedings.

11. Mr. Lalit, learned counsel further relied on ICOMM Tele Ltd. v s. Punjab

State Water Supply,(2019) 4 SCC 401, where in this Court struck down a similar

clause as arbitrary under Article 14. The Court held that unless litigation was

SLP (C) No. 31245 of 2025 Page 5 of 16

shown to be frivolous, neither exemplary costs nor pre-deposit could be imposed.

It also observed that pre-deposit clauses discourage arbitration and undermine its

objective of declogging the court system.

12. He also cited Lombardi Engineering Ltd. vs. Uttarakhand Jal Vidyut

Nigam Ltd., (2024) 4 SCC 341, where a three-Judge Bench of this Court held

that, “The concept of “party autonomy” as pressed into service by the respondent

cannot be stretched to an extent where it violates the fundamental rights under

the Constitution. For an arbitration clause to be legally binding it has to be in

consonance with the “operation of law” which includes the Grundnorm i.e. the

Constitution. It is the rule of law which is supreme and forms parts of the basic

structure. The argument canvassed on behalf of the respondent that the petitioner

having consented to the pre-deposit clause at the time of execution of the

agreement, cannot turn around and tell the Court in a Section 11(6) petition that

the same is arbitrary and falling foul of Article 14 of the Constitution is without

any merit”.

13. He further relied on the Constitution Bench decision in Central

Organisation for Railway Electrification (CORE) vs. M/s

ECI-SPIC-SMO-MCML (JV), (2025) 4 SCC 641, which affirmed ICOMM Tele

Ltd. (supra) and Lombardi Engineering Ltd. (supra). According to him, the

Constitution Bench reiterated that principles of non-arbitrariness apply even

when government instrumentalities contract with private parties and that equal

treatment of parties must be ensured at all stages of arbitration.

SLP (C) No. 31245 of 2025 Page 6 of 16

14. Mr. Lalit submitted that S.K. Jain (supra) did not constitute a binding

precedent as it was sub silentio on Article 14 and Sections 18 and 38 of the Act,

which issues were later considered in ICOMM Tele Ltd. (supra), Lombardi

Engineering Ltd. (supra) and CORE (supra). He reiterated that this Court in S.K.

Jain (supra) only considered the question of unequal bargaining power and cap

on quantum payable. He explained sub silentio as a situation where a point of law

is not perceived or addressed by the Court. In support of his submission, he relied

upon the judgment of this Court in Municipal Corporation of Delhi vs. Gurnam

Kaur, (1989) 1 SCC 101, wherein this Court has held as under: -

“11. Pronouncements of law, which are not part of the ratio decidendi are classed

as obiter dicta and are not authoritative. With all respect to the learned Judge who

passed the order in Jamna Das case [ Writ Petitions Nos. 981-82 of 1984] and to

the learned Judge who agreed with him, we cannot concede that this Court is bound

to follow it. It was delivered without argument, without reference to the relevant

provisions of the Act conferring express power on the Municipal Corporation to

direct removal of encroachments from any public place like pavements or public

streets, and without any citation of authority. Accordingly, we do not propose to

uphold the decision of the High Court because, it seems to us that it is wrong in

principle and cannot be justified by the terms of the relevant provisions. A decision

should be treated as given per incuriam when it is given in ignorance of the terms

of a statute or of a rule having the force of a statute. So far as the order shows, no

argument was addressed to the court on the question whether or not any direction

could properly be made compelling the Municipal Corporation to construct a stall

at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of

the Salmond on Jurisprudence, 12th Edn. explains the concept of sub silentio at p.

153 in these words:

A decision passes sub silentio, in the technical sense that has come to be

attached to that phrase, when the particular point of law involved in the decision

is not perceived by the court or present to its mind. The court may consciously

decide in favour of one party because of point A, which it considers and

pronounces upon. It may be shown, however, that logically the court should not

have decided in favour of the particular party unless it also decided point B in

his favour; but point B was not argued or considered by the court. In such

circumstances, although point B was logically involved in the facts and although

the case had a specific outcome, the decision is not an authority on point B. Point

B is said to pass sub silentio.

SLP (C) No. 31245 of 2025 Page 7 of 16

12. ….Precedents sub silentio and without argument are of no moment. This rule

has ever since been followed. One of the chief reasons for the doctrine of precedent

is that a matter that has once been fully argued and decided should not be allowed

to be reopened. The weight accorded to dicta varies with the type of dictum. Mere

casual expressions carry no weight at all. Not every passing expression of a judge,

however eminent, can be treated as an ex cathedra statement, having the weight of

authority.”

SUBMISSIONS ON BEHALF OF THE RESPONDENT

15. Mr. Harsh Mehla, learned counsel for the Respondent, argued that S.K.

Jain (supra) remains a binding precedent. He submitted that this Court had upheld

the validity of pre-deposit clauses where deposits were refundable on the ground

that such clauses serve the legitimate purpose of deterring frivolous disputes.

16. He contended that arbitration clauses in S.K. Jain (supra), ICOMM Tele

Ltd. (supra) and Lombardi Engineering Ltd. (supra) were materially different.

The learned counsel for the Respondent drew attention of this Court towards a

comparison table of the aforementioned precedents:

Citation S.K. Jain vs. State of

Haryana (2009) 4

SCC 357

ICOMM Tele Ltd.

vs. Punjab Board

(2019) 4 SCC 401

Lombardi Engineering

vs. UJVNL (2024) 4 SCC

341

Bench

Strength

3 Judge Bench 2 Judge Bench 3 Judge Bench

Clause in

dispute

“25-A. (7) It is also a

term of this contract

agreement that where

the party invoking

arbitration is the

contractor, no

reference for

arbitration shall be

maintainable unless

the contractor

furnishes to the

satisfaction of the

Executive Engineer in

“viii. It shall be an

essential term of this

contract that in order

to avoid frivolous

claims the party

invoking arbitration

shall specify the

dispute based on

facts and

calculations stating

the amount claimed

under each claim

and shall furnish a

(a) All questions and

disputes relating to the

meaning of the

specification design,

drawing and instructions

herein and as to the

quality of workmanship or

materials used on the

work or as to any other

question, claim, right,

matter or thing,

whatsoever in any way

arising out of or relating

SLP (C) No. 31245 of 2025 Page 8 of 16

charge of the work, a

security deposit of a

sum determined

according to details

given below and the

sum so deposited

shall, on the

termination of the

arbitration

proceedings be

adjusted against the

costs, if any, awarded

by the arbitrator

against the claimant

party and the balance

remaining after such

adjustment in the

absence of any such

costs being awarded, the whole of the sum

will be refunded to

him within one month

from the date of the

award – …”

“deposit-at-call” for

ten per cent of the

amount claimed, on

a schedule bank in

the name of the

arbitrator by his

official designation

who shall keep the

amount in deposit till

the announcement of

the award. In the

event of an award in

favour of the

claimant, the deposit

shall be refunded to

him in proportion to

the amount awarded

with reference to the

amount claimed and

the balance, if any,

shall be fortified and

paid to the other

party”.

to the contract, designs,

drawings, specification,

estimates, instructions,

orders or these conditions

or otherwise concerning

the works or the execution

or failure to execute the

same, whether arising

during the progress of the

work or after the

cancellation, termination,

completion or

abandonment thereof,

shall be conducted in

accordance with the

provisions of the

Arbitration and

Conciliation Act, 1996 or

any statutory

modification or re-

enactment thereof and the

rules made thereunder

and for the time being in

force shall apply to the

arbitration proceedings.

However, the party

initiating the arbitration

claim shall have to

deposit 7% of the

arbitration claim in the

shape of fixed deposit

receipt as security

deposit.

(b) On submission of

claims the arbitrator shall

be appointed as per the

following procedure:

(I) For claim amount up

to Rs 10.00 crore, the case

shall be referred to sole

arbitrator to be appointed

by the Principal

Secretary/Secretary

(Irrigation), GoU….”

SLP (C) No. 31245 of 2025 Page 9 of 16

17. Relying on the aforesaid arbitration clauses, he submitted that in ICOMM

Tele Ltd. (supra) , the clause was struck down because it provided for forfeiture

of deposits even when the claimant succeeded in the arbitration proceedings. In

contrast, the present clause, akin to that in S.K. Jain (supra) merely required a

refundable security deposit, without punitive forfeiture.

18. He further argued that Lombardi Engineering Ltd. (supra) reaffirmed that

only clauses foreclosing access to arbitration or mandating partial forfeiture

irrespective of outcome would offend Article 14 of the Constitution. Refundable

deposit clauses, such as the one in the present case remain valid as they are

designed to discourage unmeritorious claims without being punitive.

19. Accordingly, he submitted that S.K. Jain (supra) continues to govern

refundable deposit clauses and the Arbitrator and Commercial Court rightly

applied it in dismissing the Appellant’s claim.

REASONING

20. Having heard learned counsel for the parties, this Court considers it

appropriate, at the outset, to recapitulate the ratio decidendi of S.K. Jain (supra),

ICOMM Tele Ltd. (supra), Lombardi Engineering Ltd. (supra) and CORE

(supra).

21. In S.K. Jain (supra), a three Judge Bench of this Court rejected the plea of

unequal bargaining power of the parties and unconscionability of the arbitration

clause to the extent it required the contractor alone to make a pre-deposit of seven

per cent (7%) of the amount claimed prior to reference of disputes to arbitration.

SLP (C) No. 31245 of 2025 Page 10 of 16

The three Judge Bench of this Court also held that there is logic in the arbitration

clause to the extent it prescribes higher amount of security deposit/fees

commensurate with the magnitude of the claim. The Court in S.K. Jain (supra)

held that such a pre-deposit condition in the arbitration clause ‘ …is the balancing

factor to prevent frivolous and inflated claims’. Accordingly, it held the pre -

deposit condition to be non- arbitrary, reasonable and having nexus with the object

sought to be achieved. Consequently, we are of the view that it is prima facie

difficult for a combination of two Judges to hold that the argument qua Article 14

was not advanced in the S.K. Jain (supra) case.

22. In ICOMM Tele Ltd. (supra), however, a two Judge Bench of this Court

held that any requirement with regard to pre-deposit prior to reference of matter

to arbitration would discourage alternative dispute resolution and would be

contrary to the objective of declogging the court system. It also held that in S.K.

Jain (supra) case, no plea had been advanced that the pre-deposit condition in the

arbitration clause was violative of Article 14 of the Constitution on the ground of

arbitrariness. Accordingly, it held that as the arbitration clause in the said case

provided for refund in proportion to the amount awarded against the amount

claimed, the pre-deposit condition was arbitrary and materially different from the

arbitration clause in S.K. Jain (supra) case. The Court, additionally held that a

stipulation mandating a pre-deposit of ten per cent (10%) of the claim amount,

prior to any determination of frivolousness, lacked a direct nexus with the object

of curbing frivolous claims and was therefore arbitrary.

SLP (C) No. 31245 of 2025 Page 11 of 16

23. In Lombardi Engineering Ltd. (supra), a three Judge Bench held that party

autonomy cannot extend to contractual terms that infringe fundamental rights and

that frivolous claims can be addressed through costs. However, in the said

judgment, it was held that there is no conflict between S.K. Jain (supra) and

ICOMM Tele Ltd. (supra) as the relevant arbitration clauses in both the cases

were materially distinct and stood on different footing.

24. The Constitution Bench of this Court in CORE (supra) held that Section

18 of the Act is mandatory and a non-derogable provision which applies to all

stages of the arbitral proceedings including the process of appointment of

Arbitrator. Moreover, though the Constitution Bench quoted with approval the

judgment in S.K. Jain (supra), it summarised the judgments in ICOMM Tele Ltd.

(supra) and Lombardi Engineering Ltd. (supra) as under:-

“148. …..To determine the validity of the clause from the viewpoint of arbitrariness,

this Court held that a contractual clause would be arbitrary “which would be unfair

and unjust and which no reasonable man would agree to”. This Court termed the

pre-deposit clause to be violative of Article 14 for being excessive and

disproportionate. Importantly, the Court held that the pre-deposit requirement was

contrary to the object of arbitration because it served as a deterrent for a party to

invoke arbitration. The pre-deposit clause was termed arbitrary for defeating the

purpose of arbitration.

149. In Lombardi, a decision of a three-Judge Bench of this Court…..this Court

observed that party autonomy “cannot be stretched to an extent where it violates the

fundamental rights under the Constitution”. It was concluded that the pre-deposit

clause violated Article 14 of the Constitution.”

25. This Court, mindful of the bounds of judicial discipline and the enduring

authority of precedents, is constrained to observe that ICOMM Tele Ltd. (supra),

being a decision of a two Judge Bench, could not override the principle of law

enunciated by the three Judge Bench in S.K. Jain (supra), even though this Court

SLP (C) No. 31245 of 2025 Page 12 of 16

is prima facie in agreement with the reasoning advanced in ICOMM Tele Ltd.

(supra).

26. Subsequently, a three Judge Bench of this Court in Lombardi Engineering

Ltd. (supra) expressly held in paragraph 61 that there is no conflict between S.K.

Jain (supra) and ICOMM Tele Ltd. (supra). Consequently, it is difficult for this

two Judge Bench combination to hold that S.K. Jain (supra) judgment is sub

silientio or no longer good law. It bears reiteration that neither Lombardi

Engineering Ltd. (supra) nor the Constitution Bench in CORE (supra) has held

that S.K. Jain (supra) is not good law.

27. Moreover, an argument not considered in the earlier judgments is that the

right to sue inheres in every individual, save where expressly barred by statute. It

is settled law that a litigant may, at his own peril, institute a suit of his choice. In

Smt. Ganga Bai vs. Vijay Kumar and Ors., (1974) 2 SCC 393, this Court held

that it is no defence to contend, howsoever frivolous the claim may appear, that

the law confers no such right. Unlike an appeal, the maintainability of a suit

requires no statutory sanction. It suffices that no enactment prohibits it.

28. Further, Section 28 of the Indian Contract Act, 1872 declares void any

agreement that absolutely restrains a party from enforcing contractual rights ‘by

the usual proceedings in ordinary tribunals’. The sole statutory exception is the

reference of disputes to arbitration (first under the Arbitration Act, 1940, and now

under the Arbitration and Conciliation Act, 1996). Arbitration, under the

framework of our Contract law, remains an exception to litigation in courts, not

SLP (C) No. 31245 of 2025 Page 13 of 16

its substitute or alternative! As the late learned Mr. Fali S. Nariman, Senior

Advocate, aptly observed in his foreword to Mediation Practice and Law: The

Path to Successful Dispute Resolution by Mr. Sriram Panchu, alternate dispute

resolution is not yet ingrained in the Indian legal psyche, having historically been

viewed with scepticism under Anglo-Saxon jurisprudence which abhorred

resolution of disputes outside His Majesty’s Courts. This historical legacy

explains the cautious judicial approach towards ADR in India. The relevant

passage from the foreword is reproduced hereinbelow:-

“……the truth is that ADR (Alternate Dispute Resolution) is not yet

ingrained in the Indian psyche. It is a new graft, like a new heart or a new

kidney: and as with the human body, the ‘body-commercial’ looks for an

opening to reject it. The reason is historical. Traditionally, it was the judges of

the Kings’ Courts in England who were the embodiment of the law: as one

commentator in the nineteenth century had said, ‘the Common Law is wrapped

up in the collective breasts of His Majesty’s Judges’: to which one of the judges

responded (somewhat pompously), ‘and a very happy residence too’! During

two centuries of British rule, we in India were sustained on the milk of Anglo-

Saxon jurisprudence–and Anglo- Saxon jurisprudence simply abhorred

resolution of disputes outside His Majesty’s Courts! What England abhorred,

we in British India were taught to abjure. Ever since the Contract Act was

introduced in India’s legal system more than 100 years ago, alternate dispute

resolution was outlawed: resolution of disputes by arbitration being simply

tolerated!....”

29. This Court is of the considered view that an arbitration clause cannot

impose pre-deposit conditions so onerous as to render the right to sue, at the very

threshold, illusory or nugatory. A stipulation mandating the deposit of a substantial percentage of the claim amount, as a precondition to invoking

arbitration would inevitably suppress claims, deter recourse to alternative dispute resolution, and thereby defeat its very object.

SLP (C) No. 31245 of 2025 Page 14 of 16

ORDER OF REFERENCE

30. Keeping in view the aforesaid judgments and this Court (sitting in a

combination of two Judges) having doubts about the legality and validity of a

three Judge Bench judgment in S.K. Jain (supra) as a binding precedent, is of the

opinion that the matter calls for reference to a larger Bench.

31. In Aligarh Muslim University vs. Naresh Agarwal & Ors., (2025) 6 SCC

1, a seven Judge Bench of this Court reiterated the legal precepts which apply to

orders of reference and reiterated the position of law as expounded in Central

Board of Dawoodi Bohra Community & Anr. vs. State of Maharashtra & Anr.,

(2005) 2 SCC 673 as under:-

“40.1. Decisions of this Court rendered by a Bench of larger strength are binding on

Benches of a less or equal strength;

40.2. If a Bench of lower strength is doubtful about the correctness of a judgment

delivered by a Bench of larger strength, it cannot disagree or dissent from the view

taken by the larger Bench. In case of doubt, it can invite the attention of the Chief Justice

of India to its opinion and request the Chief Justice to list the matter before a Bench,

the strength of which is greater than that which delivered the judgment which has been

doubted;

40.3. The correctness of the view taken by any Bench can only be doubted by a Bench

of equal strength. The matter will then be placed for hearing before a Bench of greater

strength;

40.4. There are two exceptions to the rules discussed above:

(i) The discretion of the Chief Justice is not bound by the rules. As the master of the

roster, the Chief Justice may list any case before any Bench of any strength;

(ii) Despite the rules discussed above, if a particular case has come up for hearing

before a Bench of larger strength and that Bench is of the opinion that the judgment of

the Bench of lower strength requires reconsideration or correction, or is otherwise

doubtful of its correctness, it may dispense with the need for a reference in the terms

described above or an order of the Chief Justice and hear the matter for reasons given

by it.”

SLP (C) No. 31245 of 2025 Page 15 of 16

32. Consequently, this Court requests the Hon’ble Chief Justice of India to

consider the desirability as to whether the issues formulated hereunder, or such

other issues as may be deemed relevant, do warrant a reference to a larger Bench:-

A. Whether a stipulation requiring the contractor alone to make a pre-deposit

of security/fees prior to reference of disputes to arbitration is contrary to

Section 18 of the Act which mandates equal treatment of parties at all

stages of arbitration?

B. Whether pre-deposit conditions in contracts having Arbitration clause

discourages Alternative Dispute Resolution and undermine its objective of

declogging the c ourt system?

C. Whether a condition of pre-deposit of security/fees prior to reference to

Arbitration is arbitrary and violative of the right to sue as well as Article

14 of the Constitution and Section 28 of the Indian Contract Act, 1872?

D. Whether requirement of pre-deposit of security/fees has any rational

relation to the object of curbing frivolous claims as at that stage it cannot

be said that the claims are frivolous and moreover such frivolous claims

may adequately be addressed under Section 31(8) of the Act through

imposition of costs at the conclusion of the arbitration proceedings?

E. Whether a pre-deposit condition is valid in an arbitration case where said

deposit is refundable upon the conclusion of arbitration proceedings?

F. Whether S.K. Jain (Supra) is a valid and binding precedent?

SLP (C) No. 31245 of 2025 Page 16 of 16

33. Registry is directed to place the present Civil Appeal before the Hon’ble

Chief Justice of India for appropriate directions.

……………………J.

[MANOJ MISRA]

…………………J.

[MANMOHAN]

New Delhi;

August 17, 2026

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