Holding

While exercising power under Section 11, the court must limit its inquiry to the prima facie existence of an arbitration agreement and cannot decide non‑arbitrability of claims, which is for the arbitral tribunal.

Summary

The appellant, Office for Alternative Architecture, challenged a Delhi High Court order that, while appointing an arbitral tribunal under Section 11 of the Arbitration and Conciliation Act, 1996, excluded certain claims as non‑arbitrable. The appellant argued that the court should only examine whether a prima facie arbitration agreement exists and leave the question of arbitrability to the tribunal. The Supreme Court examined the effect of sub‑section (6A) of Section 11, inserted by the 2015 amendment, which mandates that the court’s inquiry be limited to the existence of an arbitration agreement and not other issues. Relying on the decisions in In Re: Interplay, SBI General Insurance v. Krish Spinning and related precedents, the Court held that the High Court erred in bisecting the claim and in pre‑determining non‑arbitrability. Consequently, the appeal was allowed, the High Court’s order excluding the claims was set aside, and the parties were directed to raise any non‑arbitrability pleas before the arbitral tribunal.

Issues considered

Whether, while exercising power under Section 11 of the Arbitration and Conciliation Act, 1996, the court must confine its consideration to the existence of an arbitration agreement.
Whether the court may, in the same proceeding, hold that certain claims are non‑arbitrable or fall within the excepted category.

Legislation cited

Arbitration and Conciliation Act, 1996s. 11

Headnote

Issue for Consideration Whether while exercising power u/s.11 of the Arbitration and Conciliation Act, 1996, the Court has to confine its consideration as to the existence of an arbitration agreement between the parties; If so, whether it would be permissible, while to hold that some of the claims raised are non-arbitrable or fall within excepted category. Headnotes† Arbitration and Conciliation Act, 1996 – s.11 – In a nutshell, the case of the appellant, inter alia, is that while exercising power u/s.11 of the 1996 Act, the Court has to

Subjects

Arbitral TribunalExclusion of claimsNon-arbitrable claimsExistence of arbitration agreementAppointment of an arbitratorBisecting claim

Judgment

[2025] 6 S.C.R. 395 : 2025 INSC 665

Office for Alternative Architecture
v.
IRCON Infrastructure and Services Ltd.
(Civil Appeal No. 6620 of 2025)
13 May 2025
[Pamidighantam Sri Narasimha and Manoj Misra,* JJ.]

Issue for Consideration
Whether while exercising power u/s.11 of the Arbitration and
Conciliation Act, 1996, the Court has to confine its consideration as
to the existence of an arbitration agreement between the parties;
If so, whether it would be permissible, while exercising jurisdiction
u/s.11, to hold that some of the claims raised are non-arbitrable
or fall within excepted category.

Headnotes†

Arbitration and Conciliation Act, 1996 – s.11 – In a nutshell,
the case of the appellant, inter alia, is that while exercising
power u/s.11 of the 1996 Act, the Court has to only examine
whether the arbitration agreement exists or not and if it exists,
an Arbitrator is to be appointed who, thereafter, would decide
whether the claims fall within the excepted category or not –
Correctness:
Held: Sub-section (6A) of s.11, which was inserted by Act 3
of 2016, with effect from 23.10.2015, makes it clear that while
considering an application under sub-section (4) or sub-section (5)
or sub-section (6), the Supreme Court or the High Court, as the
case may be, shall, notwithstanding any judgment, decree or order
of any Court, confine to the examination of the existence of an
arbitration agreement – Act 33 of 2019 omitted sub-section (6A) but
the amending Act has not been notified thus far – In consequence,
sub-section (6A) of s.11 of the 1996 Act remains in the statute
book – The High Court fell in error in bisecting the claim of the
appellant into two parts, one arbitrable and the other not arbitrable,
when it found arbitration agreement to be there for settlement

* Author
396 [2025] 6 S.C.R.

Supreme Court Reports

of disputes between the parties – The correct course for the
High Court was to leave it open to the party to raise the issue of
non-arbitrability of certain claims before the arbitral tribunal, which,
if raised, could be considered and decided by it. [Paras 7, 8, 12]

Case Law Cited
In Re: Interplay Between Arbitration Agreements under the
Arbitration and Conciliation Act, 1996 and the Indian Stamp
Act, 1899 [2023] 15 SCR 1081 : 2023 INSC 1066; SBI General
Insurance Co. Ltd. v. Krish Spinning [2024] 7 SCR 840 : 2024
INSC 532 – relied on.
Emaar India Limited v. Tarun Aggarwal Projects LLP and Anr.
[2022] 13 SCR 933 : (2023) 13 SCC 661 – referred to.

List of Acts
Arbitration and Conciliation Act, 1996.

List of Keywords
Arbitral Tribunal; Exclusion of claims; Non-arbitrable claims;
Existence of arbitration agreement; Appointment of an arbitrator;
Bisecting claim.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6620
of 2025
From the Judgment and Order dated 06.09.2023 of the High Court
of Delhi at New Delhi in ARBP No. 1425 of 2022

Appearances for Parties
Advs. for the Appellant:
Talwant Singh, Sr. Adv., B.S. Jakhar, Vikram Singh Jakhar,
Ms. Bhawna Jakhar, Neeraj Jakhar, Viraj Rathee, Ms. Anshu
Devar, Nihar Dagar, Ms. Shruti Datta, Ms. Varnika Sharma, Vishul
Dabas, Sparsh Karnwal, Sriram P.
Advs. for the Respondent:
M/s. Kmnp Law, Abir Phukan, V. Shyamohan, Ms. Rishika
Radhakrishnan.
[2025] 6 S.C.R. 397

Office for Alternative Architecture v.
IRCON Infrastructure and Services Ltd.

Judgment / Order of the Supreme Court

Judgment
Manoj Misra, J.

1. Leave granted.
2. This appeal impugns the judgment and order of the High Court of
Delhi at New Delhi1 dated 06.09.2023 whereby, while appointing
an arbitral tribunal in exercise of power under Section 112 of the

1 The High Court
2 11. Appointment of arbitrators.
(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator
or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party
shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall
act as the presiding arbitrator.
(3A) [The Supreme Court and the High Court shall have the power to designate, arbitral institutions, from
time to time, which have been graded by the Council under section 43-I, for the purposes of this Act:
Provided that in respect of those High Court jurisdictions, where no graded arbitral institution are
available, then, the Chief Justice of the concerned High Court may maintain a panel of arbitrators for
discharging the functions and duties of arbitral institution and any reference to the arbitrator shall be
deemed to be an arbitral institution for the purposes of this section and the arbitrator appointed by a
party shall be entitled to such fee at the rate as specified in the Fourth Schedule. Provided further that
the Chief Justice of the concerned High Court may, from time to time, review the panel of arbitrators.]
(4) If the appointment procedure in sub-section (3) applies and (a) a party fails to appoint an arbitrator
within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed
arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, [the
appointment shall be made, on an application of the party, by the arbitral institution designated by
the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of
arbitrations other than international commercial arbitration, as the case may be].
(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the
parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the
other party to so agree [the appointment shall be made on an application of the party in accordance with
the provisions contained in sub-section (4).]
(6) Where, under an appointment procedure agreed upon by the parties,- (a) a party fails to act as required
under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement
expected of them under that procedure; or (c) a person, including an institution, fails to perform any
function entrusted to him or it under that procedure, [the appointment shall be made, on an application of
the party, by the arbitral institution designated by the Supreme Court, in case of international commercial
arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as
the case may be] to take the necessary measure, unless the agreement on the appointment procedure
provides other means for securing the appointment.
(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under
sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or
order of any Court, confine to the examination of the existence of an arbitration agreement.
(6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High
Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the
Supreme Court or the High Court.
398 [2025] 6 S.C.R.

Supreme Court Reports

Arbitration and Conciliation Act, 19963, the High Court excluded
certain claims, as stated in paras 48 (ii), (iii) and (iv) of the claim
petition, by holding them to be non-arbitrable /excepted matters in
view of clause 50 and 50.2 of the agreement.
3. In a nutshell, the case of the appellant, inter alia, is that while
exercising power under Section 11 of the 1996 Act, the Court has
to only examine whether the arbitration agreement exists or not and
if it exists, an Arbitrator is to be appointed who, thereafter, would
decide whether the claims fall within the excepted category or not.
It is thus prayed that the impugned order to the extent it excludes
certain claims be set aside by leaving it open to the parties to raise
all pleas before the arbitral tribunal.
4. Per contra, the learned counsel for the respondent submitted that
the High Court is empowered to exclude non-arbitrable claims in
light of the decision of this Court in “Emaar India Limited vs. Tarun
Aggarwal Projects LLP and Anr.4”.

(7) Decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Supreme
Court or, as the case may be, the High Court or the person or institution designated by such Court is final
and no appeal including Letters Patent Appeal shall lie against such decision.
(8) [The arbitral institution referred to in sub-sections (4), (5) and (6), before appointing an arbitrator, shall
seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and
have due regard to-(a) any qualifications required for the arbitrator by the agreement of the parties; and
(b) the contents of the disclosure and other considerations as are likely to secure the appointment of an
independent and impartial arbitrator.]
(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, [the
arbitral institution designated by the Supreme Court] [Substituted ‘the Supreme Court or the person or
institution designated by that Court’ by Act No. 33 of 2019, dated 9.8.2019.] may appoint an arbitrator of
a nationality other than the nationalities of the parties where the parties belong to different nationalities.
(10) [The Supreme Court or, as the case may be, the High Court, may make such scheme as the said
Court may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or
sub-section (6), to it.]
(11) [Where more than one request has been made under sub-section (4) or sub-section (5) or sub-
section (6) to different arbitral institutions, the arbitral institution to which the request has been first made
under the relevant sub-section shall be competent to appoint.]
(12) Where the matter referred to in sub-sections (4), (5), (6) and (8) arise in an international commercial
arbitration or any other arbitration, the reference to the arbitral institution in those sub-sections shall be
construed as a reference to the arbitral institution designated under sub-section (3A).
(13) An application made under this section for appointment of an arbitrator or arbitrators shall be
disposed of by the arbitral institution within a period of thirty days from the date of service of notice on
the opposite party.
(14) The arbitral institution shall determine the fees of the arbitral tribunal and the manner of its payment
to the arbitral tribunal subject to the rates specified in the Fourth Schedule.
Explanation. - For the removal of doubts, it is hereby clarified that this sub-section shall not apply to
international commercial arbitration and in arbitration’s (other than international commercial arbitration)
where parties have agreed for determination of fees as per the rules of an arbitral institution.]
3 The 1996 Act
4 (2023) 13 SCC 661
[2025] 6 S.C.R. 399

Office for Alternative Architecture v.
IRCON Infrastructure and Services Ltd.

5. We have considered the rival submissions and have perused the
materials on record.
6. The short question that falls for our consideration is whether while
exercising power under Section 11 of the 1996 Act, the Court has
to confine its consideration as to the existence of an arbitration
agreement between the parties. If so, whether it would be permissible,
while exercising jurisdiction under Section 11, to hold that some of
the claims raised are non-arbitrable or fall within excepted category.
7. Sub-section (6A) of Section 11, which was inserted by Act 3 of 2016,
with effect from 23.10.2015, makes it clear that while considering an
application under sub-section (4) or sub-section (5) or sub-section
(6), the Supreme Court or the High Court, as the case may be, shall,
notwithstanding any judgment, decree or order of any Court, confine
to the examination of the existence of an arbitration agreement.
8. Act 33 of 2019 omitted sub-section (6A) but the amending Act has not
been notified thus far. In consequence, sub-section (6A) of Section
11 of the 1996 Act remains in the statute book.
9. The statement of objects and reasons of the 2015 amendment with
reference to insertion of sub-section (6A) in Section 11 of the 1996
Act, reads thus:
“(iii) an application for appointment of an Arbitrator shall
be disposed of by the High Court or the Supreme Court,
as the case may be, as expeditiously as possible and an
endeavour should be made to dispose of the matter within
a period of 60 days.
(iv) to provide that while considering any application for
appointment of Arbitrator, the High Court or the Supreme
Court shall examine the existence of a prima facie
arbitration agreement and not other issues.”
10. The significance of the use of the expression “not other issues” in the
statement of objects and reasons of the 2015 amendment was noticed
by a seven-Judge bench of this Court in In Re: Interplay Between
Arbitration Agreements under the Arbitration and Conciliation
Act, 1996 and the Indian Stamp Act, 18995, and it was observed:

5 2023 INSC 1066
400 [2025] 6 S.C.R.

Supreme Court Reports

“209. The above extract indicates that the Supreme
Court or High Court at the stage of the appointment of
an Arbitrator shall ‘examine the existence of prima facie
arbitration agreement and not other issues’. These other
issues not only pertain to the validity of the arbitration
agreement, but also include any other issues which are
a consequence of unnecessary judicial interference in the
arbitration proceedings.”
11. Relying on the above observations made by this Court in In Re:
Interplay (supra), a three-judge bench of this Court in “SBI General
Insurance Co. Ltd. vs. Krish Spinning6” observed:
“114. …. that the scope of enquiry at the stage of
appointment of Arbitrator is limited to the scrutiny of
prima facie existence of the arbitration agreement, and
nothing else. For this reason, we find it difficult to hold
that the observations made in ‘Vidya Drolia vs. Durga
Trading Corporation 7 (supra) and adopted in ‘NTPC
vs. SPML Infra Limited 8 (supra) that the jurisdiction of
the referral court when dealing with the issue of “accord
and satisfaction” under section 11 extends to weeding
out ex-facie non-arbitrable and frivolous disputes would
continue to apply despite the subsequent decision in In
Re: Interplay (supra)”.
Emphasis Supplied

12. As the above decision has been rendered by a three-Judge bench
of this Court after considering the seven-Judge bench decision
of this Court in In Re: Interplay (supra), we are of the view that
the respondent cannot profit from certain observations made by a
two-Judge bench of this Court in Emaar (supra). In our view,
therefore, the High Court fell in error in bisecting the claim of the
appellant into two parts, one arbitrable and the other not arbitrable,
when it found arbitration agreement to be there for settlement of
disputes between the parties. The correct course for the High Court

6 2024 INSC 532
7 (2021) 2 SCC 1
8 (2023) 9 SCC 385
[2025] 6 S.C.R. 401

Office for Alternative Architecture v.
IRCON Infrastructure and Services Ltd.

was to leave it open to the party to raise the issue of non-arbitrability
of certain claims before the arbitral tribunal, which, if raised, could
be considered and decided by it.
13. The appeal is, therefore, allowed. The order of the High Court to the
extent it excludes claims mentioned in para 48 (ii), (iii) and (iv), as
referred to in paragraph 8 of the impugned order, is set aside. The
parties are, however, at liberty to take the plea of non-arbitrability
of certain claims before the arbitral tribunal, which shall decide the
same without being prejudice by any observations made in the order
of the High Court. There is no order as to costs.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan