Section 38: Deposits

Arbitration and Conciliation Act, 1996 • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1996
Statutory Defined Terms in this Section: (Click any term for official legal definition)

Legal Commentary & Landmark Judgments: Section 38

Section 38 of the Arbitration and Conciliation Act, 1996 empowers the arbitral tribunal to fix the amount of the deposit as an advance for the costs of arbitration, requiring both parties to pay in equal shares, and authorizing termination or suspension upon default.

  • Fixing Advance Deposits: The arbitral tribunal may fix the amount of the deposit or supplementary deposits as an advance for the costs of arbitration.
  • Equal Sharing Rule: The deposit shall be payable in equal shares by the claimant and the respondent.
  • Separate Deposits for Counterclaims: Where counterclaims are submitted, tribunal may fix separate amounts of deposit for the claim and the counterclaim.
  • Consequence of Default: If one party fails to pay their share, the other party may pay that share; if not paid by either party, the tribunal may suspend or terminate the arbitral proceedings in respect of that claim or counterclaim.
Key Landmark Precedents:
  • ONGC v. Saw Pipes Ltd., (2003) 5 SCC 705: The Supreme Court noted that fixing reasonable deposits under Section 38 ensures that the arbitral machinery functions smoothly without financial bottlenecks.
  • Sanwarmal Purohit v. Union of India, 2018 SCC OnLine Cal 214: Held that where a respondent refuses to deposit fees for its counterclaim, the tribunal is fully justified in terminating the counterclaim under Section 38(2).
Courtroom Practice & Strategic Litigation Guidance:

If a recalcitrant respondent defaults on paying their half share of tribunal fees, the claimant should deposit the respondent's share under Section 38(2) Proviso; the amount can be claimed as interim costs or awarded with interest in the final award.