Section 45 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 45 tells a court or other judicial authority what to do when a party brings an action on a matter covered by an arbitration agreement of the kind described in section 44. It must, at the request of a party, refer the parties to arbitration, unless it prima facie finds that the agreement is null and void, inoperative or incapable of being performed. This article reads the section as per the India Code consolidated text consulted.
Notwithstanding anything in Part I or the Code of Civil Procedure, 1908, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it prima facie finds that the agreement is null and void, inoperative or incapable of being performed. The footnote shows "unless it prima facie finds" as substituted for "unless it finds" by Act 33 of 2019, section 11, w.e.f. 30-8-2019.
Where section 45 sits
Section 45 is in Part II, Chapter I (New York Convention Awards). It follows the definition of "foreign award" in section 44. See our article on section 44. It does not itself require that a foreign award exist; it speaks of "an agreement referred to in section 44", that is, an agreement in writing for arbitration to which the Convention in the First Schedule applies. If you are facing a court action despite an arbitration clause, our legal dispute resolution team can look at the clause and the notifications with you.
The words of the section
The section opens "Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908)". It overrides both. The operative words are then:
- Who acts: "a judicial authority". The section does not limit this to a "Court" as defined in section 2(1)(e), and it does not name which authority.
- When: "when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44".
- At whose request: "at the request of one of the parties or any person claiming through or under him".
- What it must do: "shall ... refer the parties to arbitration".
- The exception: "unless it prima facie finds that the said agreement is null and void, inoperative or incapable of being performed".
The section sets no time by which the request must be made and does not require any document to accompany it. On those points, the text consulted is silent.
The 2019 footnote
The footnote reads: "Subs. by Act 33 of 2019, s. 11, for 'unless it finds' (w.e.f. 30-8-2019)." Act 33 of 2019 is the 2019 Amendment Act. So the exception is shown as now speaking of what the authority "prima facie finds". The text consulted carries two footnotes on that page, both numbered "1."; this is the second of them, and the first relates to section 43J (see our article on sections 43-I, 43J and 43K). Nothing about any later change is in the source.
The three grounds
The three grounds are printed together: "null and void, inoperative or incapable of being performed". The section does not define them, and the text consulted gives no examples. This article gives none.
Section 45 and Article II(3) of the First Schedule
Article II(3) of the First Schedule says that the court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of that Article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the agreement is null and void, inoperative or incapable of being performed. The text consulted prints it as "unless in finds that the said agreement is null and void, inoperative of incapable of being performed". These are printing slips ("in" for "it", "of" for "or"), and are read as "it" and "or". Article II(3) does not carry the word "prima facie" in the text consulted; section 45 does. The two texts are set out side by side here and the article reconciles nothing.
Section 45, section 8 and section 54 side by side
| Point | Section 45 (Chapter I, New York Convention) | Section 8 (Part I) | Section 54 (Chapter II, Geneva) |
|---|---|---|---|
| Authority | A judicial authority | A judicial authority | A judicial authority |
| Seized of | An action in a matter in respect of which the parties have made an agreement referred to in section 44 | An action in a matter which is the subject of an arbitration agreement | A dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement |
| Who applies | One of the parties or any person claiming through or under him | A party to the arbitration agreement or any person claiming through or under him | Either of them or any person claiming through or under him |
| Exception | Unless it prima facie finds the agreement null and void, inoperative or incapable of being performed | Unless it finds that prima facie no valid arbitration agreement exists | Agreement valid under section 53 and capable of being carried into effect |
| Time limit for the request | Not stated | Not later than the date of submitting the first statement on the substance of the dispute | Not stated |
| Document with the application | Not stated | Original agreement or duly certified copy (sub-section (2)) | Not stated |
For section 8 see our article on section 8, and for section 54 our article on sections 53 and 54. The three sections are separate provisions in separate places in the Act. This article does not say how one affects the others.
Appeal from an order refusing to refer
Section 50(1)(a) provides that an appeal shall lie from an order refusing to refer the parties to arbitration under section 45, to the court authorised by law to hear appeals from such order. Section 50 opens with "Notwithstanding anything contained in any other law for the time being in force, an appeal", shown in its footnote as substituted by Act 33 of 2019, section 12, w.e.f. 30-8-2019. See our article on sections 49 to 52. The comparable Part I appeal is in section 37(1)(a); see section 37.
An example
Meridian Fabrics Pvt Ltd contracts with a foreign buyer under a written agreement providing for arbitration, and the agreement is one to which the First Schedule Convention applies, as section 44 requires. The buyer sues Meridian in an Indian court on a payment dispute. Meridian asks the court to refer the parties to arbitration. Under section 45 the judicial authority "shall" refer them, unless it prima facie finds the agreement null and void, inoperative or incapable of being performed. If it refuses, Meridian has the appeal route in section 50(1)(a). If the court refers the parties, section 50(1) as printed does not list that order.
Need help with a court action despite an arbitration clause?
If a suit has been filed on a matter covered by a foreign arbitration agreement, the request to refer the parties needs to be framed against the words of section 45 and the agreement. Our legal dispute resolution service can review the clause, the plaint and the next step with you.
Key takeaways
- Section 45 applies to a judicial authority seized of an action on an agreement referred to in section 44.
- At the request of a party, or a person claiming through or under him, it "shall" refer the parties to arbitration.
- The exception is where it prima facie finds the agreement null and void, inoperative or incapable of being performed.
- The footnote shows "unless it prima facie finds" as substituted by Act 33 of 2019, section 11, w.e.f. 30-8-2019.
- An order refusing to refer under section 45 is appealable under section 50(1)(a).
Read next
- Sections 46 and 47: when a foreign award is binding and the evidence to be produced
- Section 44: foreign award under the New York Convention
- Section 8: power to refer parties to arbitration
- Arbitration agreement: section 7
Disclaimer: Based on the India Code consolidated text of the Arbitration and Conciliation Act, 1996, whose footnotes show amendments up to Act 3 of 2021 and a latest date of 12 October 2023, as consulted on 2 October 2026. Rules, regulations and notifications under the Act, later amendments and the commencement of the Mediation Act, 2023 should be checked. This article is general information, not legal advice; check the official text before acting.