From SBP v. Patel to UPNL v. NCL: How Amendments Reshaped Judicial Intervention in Arbitration

The 2015 Amendment, inserting Section 11(6-A), was a clear legislative protest, with the Parliament wanting courts to step back and let Arbitral Tribunals do the heavy lifting.

Introduction: From “mini-trial” to minimal scrutiny

For almost a decade after SBP & Co. v. Patel Engg. Ltd.¹ (SBP Patel), Section 11 applications looked more like mini-trials than a threshold appointment exercise. The Chief Justice or his designate, acting in a judicial capacity, would examine not only the existence of an arbitration agreement but also limitation, arbitrability, accord and satisfaction and other “threshold issues”.²

The 2015 Amendment, inserting Section 11(6-A), was a clear legislative protest this approach. Parliament wanted courts to step back and let Arbitral Tribunals do the heavy lifting. Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd.³ (UPNL) is an important case because it shows the Supreme Court enforcing that legislative redesign in a concrete factual setting, and quietly burying the old SBP-style mindset that allowed High Courts to reject claims as “time-barred” at the referral stage.

The SBP Patel regime: Section 11 as a broad judicial gateway

In SBP Patel case⁴, a seven-Judge Bench held that the power of the Chief Justice (or designate) under Section 11 was judicial, not administrative. This apparently simple characterisation had huge practical consequences. The Court laid down categories of issues that the Chief Justice: (i) must decide; (ii) may decide; and (iii) should leave to the Tribunal. In practice, this opened the door for courts to decide:

1. whether claims were time-barred or “dead”;

2. whether there was accord and satisfaction;

3. whether disputes were arbitrable; and

4. whether there was a valid arbitration agreement at all.⁵

SBP Patel case⁶ effectively rewrote Section 11 by allowing extensive judicial scrutiny at the appointment stage and pushing the kompetenz-kompetenz principle into the background, restricting it mainly to arbitrations where the court had not already pronounced on jurisdiction.⁷

The result:

1. delay,

2. increased costs, and

3. an arbitration system heavily dependent on the courts — exactly the opposite of what the Arbitration and Conciliation Act, 1996 (1996 Act) intended.

Legislative response: Section 11(6-A) and the 246th Law Commission Report

The 246th Law Commission Report, 2014 sharply criticised this SBP-driven expansion of Section 11 as inconsistent with the United Nations Commission on International Trade Law (UNCITRAL) Model Law and with the policy of minimal intervention. It recommended a new Section 11(6-A) to confine courts to a single question:

Does an arbitration agreement exist?

Parliament implemented this through the Arbitration and Conciliation (Amendment) Act, 2015, inserting Section 11(6-A) which stated that the Court “shall… confine itself to the examination of the existence of an arbitration agreement”.

Subsequent Supreme Court decisions consolidated this narrow reading:

1. Duro Felguera S.A. v. Gangavaram Port Ltd.⁸ — the Court must only see if an arbitration agreement exists; nothing more.⁹

2. Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman¹⁰ — explicitly holds that Section 11(6-A) legislatively overrules SBP Patel-style scrutiny and that courts cannot go into limitation or arbitrability at the Section 11 stage.

So, by the time UPNL case¹¹ reached the Supreme Court, the law on paper was clear: Only existence of an arbitration agreement is examinable; everything else belongs to the Tribunal.

Facts and the High Court’s “SBP Hangover”

UPNL, a corporation meant to provide employment to ex-servicemen, entered a long-term contract with Northern Coalfields Limited (NCL) for security services. Over time, disputes emerged regarding non-payment and deductions from running bills. After repeated demands, UPNL invoked arbitration in 2016 (post-2015 Amendment) and issued notices seeking appointment of a sole arbitrator. NCL did not respond.

UPNL then approached the Madhya Pradesh High Court under Section 11(6). Instead of asking the limited post-2015 question (“is there an arbitration clause?”), the High Court reverted to the old SBP mindset and examined limitation. It concluded that the claim was time-barred and dismissed the Section 11 application, treating limitation as a threshold bar to even referring the dispute to arbitration.

In other words, the High Court behaved as if Section 11(6-A) did not exist.

The Supreme Court’s intervention in UPNL v. NCL

1. Recentering Section 11(6-A)

On appeal, the Supreme Court directly confronted the High Court’s approach. It held that after the 2015 Amendment, the only permissible inquiry under Section 11(6) via Section 11(6-A), is whether a valid arbitration agreement exists between the parties. All other objections — including limitation — must be left to the Arbitral Tribunal under Section 16.

The Court relied on:

(a) Section 11(6-A) itself, with its non obstante clause (notwithstanding any judgment, decree or order of any court…), which clearly aimed at neutralising SBP Patel case¹² and related decisions.

(b) Duro Felguera case¹³ and Mayavati Trading case¹⁴, which had already affirmed this narrow “existence only” test.¹⁵

2. Limitation as a Section 16 question

The Court emphasised that limitation is:

(a) a mixed question of fact and law; and

(b) directly tied to the tribunal’s jurisdiction and assessment of evidence.

Under Section 16 (kompetenz-kompetenz), the Arbitral Tribunal is empowered to rule on its own jurisdiction, including on objections based on limitation. Therefore, by rejecting the Section 11 application on limitation grounds, the High Court usurped the Tribunal’s statutory function.

3. Operative directions

The Supreme Court:

(a) set aside the High Court’s order;

(b) appointed Justice A.M. Sapre (Retd.) as sole arbitrator;

(c) directed compliance with Section 12 disclosures and the timeline under Section 29-A; and

(d) left all questions, including limitation, expressly open for the arbitrator to decide.

What exactly changed from SBP Patel?

This is the heart of your piece, so let us state it clearly and technically.

1. Nature and scope of Section 11 power

(a) Under SBP Patel (pre-2015):

(i) Section 11 power was characterised as judicial.

(ii) The Chief Justice/designate could examine: Validity of the arbitration agreement, arbitrability, limitation, accord and satisfaction, etc.

(iii) Section 11 became a substantive adjudicatory stage, front-loading several jurisdictional and factual questions.¹⁶

(b) Under Section 11(6-A) + UPNL (post-2015)

(i) Power is still judicial in nature, but its content is radically narrowed.

(ii) The Court is confined to prima facie existence of an arbitration agreement nothing more.

(iii) Limitation, dead claims, excepted matters, etc. are for the tribunal under Section 16, not for the Section 11 court.

2. Relationship with kompetenz-kompetenz

(a) SBP Patel case¹⁷ essentially diluted kompetenz-kompetenz by allowing courts to decide jurisdictional questions at the referral stage, leaving tribunals with a more residual role.

(b) UPNL case¹⁸, building on Section 11(6-A) and Mayavati Trading case¹⁹, restores kompetenz-kompetenz by insisting that jurisdictional and limitation issues belong to the Tribunal, not to the Section 11 court.

3. Effect of the 2019 omission of Section 11(6-A)

The Arbitration and Conciliation (Amendment) Act, 2019 omits Section 11(6-A) on paper. However, this omission has not yet been notified, and even Mayavati Trading case²⁰ made it clear that the omission was not intended to revive the SBP era, but to shift appointments to arbitral institutions under Section 11(3-A).²¹

So, three points are crucial:

(a) As of now, Section 11(6-A) still operates because the deletion is unnotified.

(b) SBP-style wide inquiry remains legislatively overruled, not merely “overlooked”.

(c) Even in a future post-notification scenario, the trend of case law (e.g. Vidya Drolia v. Durga Trading Corpn.²², later Section 11 cases) supports a narrow referral jurisdiction, not a return to deep judicial scrutiny.

The UPNL case²³ fits perfectly into this trajectory: it is a concrete application of the post-2015 philosophy that courts must “cut the deadwood” only when there is no arbitration agreement at all, but cannot use Section 11 to decide limitation or merits.

Present synthesis and doctrinal impact

1. Section 11(6-A) remains in force until its omission is notified, so High Courts and the Supreme Court are bound to confine themselves to existence of the arbitration agreement at the referral stage.

2. SBP Patel case²⁴, National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd.²⁵, Union of India v. Master Construction Co.²⁶, etc. which allowed wide judicial scrutiny (including limitation, dead claims, accord and satisfaction) at the Section 11 stage, stand legislatively overridden by the 2015 Amendment and cannot be revived merely because of an unnotified textual omission.

3. Even if Section 11(6-A) is notified as omitted in future, the combination of Section 5 (minimal judicial intervention), Section 16 (kompetenz-kompetenz) and the Supreme Court’s own jurisprudence (Duro Felguera case²⁷, Mayavati Trading case²⁸, Vidya Drolia case²⁹) will prevent a full return to the SBP regime. The courts will still be expected to:

(a) check existence of the arbitration agreement; and

(b) in very rare cases, refuse reference for prima facie non-arbitrability — not to conduct a full merits review at the appointment stage.³⁰

4. In the UPNL case³¹ therefore is not an isolated decision, but an important affirmation of this modern, pro-arbitration structure: Tribunal, not the Court, is the primary decision-maker on limitation and jurisdictional objections.

Conclusion: Why UPNL v. NCL matters

Seen in isolation, UPNL case³² looks like a simple correction of a High Court error about limitation. But when placed in the SBP Patel → 2015 Amendment → Duro Felguera/Mayavati → UPNL timeline, it becomes clear that the Supreme Court is closing the chapter on the old Section 11 jurisprudence.

The judgment:

1. Humanises the pro-arbitration shift by recognising that parties should not be denied arbitration merely because a court, at the threshold, chooses to pre-decide limitation.

2. Respects the design of the 1996 Act, where arbitrators, not Judges, are meant to handle most jurisdictional and factual disputes.

3. Sends a strong signal to High Courts still operating with an SBP hangover do not convert Section 11 into a mini-trial; appoint the arbitrator and let the Tribunal decide.

In that sense, UPNL case³³ is not just about one contract between a welfare corporation and a coal company; it is about disciplining judicial behaviour in arbitration and anchoring Indian practice in a truly modern, Tribunal-centric model.