TMI Blog2003 (5) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... Aruneshwar Gupta for the Appellant. Raju Ramachandran, Ms. A. Subhashini, Ms. Meenakshi Arora, Ms. Mona Chhetri, Ashish Dholakia, U.A. Rana and Ms. Anuradha Priyadarshini for the Respondent. JUDGMENT M.B. Shah, J. - These appeals are directed against the judgment and order dated 27th April, 2000 passed by the High Court of Bombay, Goa Bench, in Arbitration Appeal No. 1 of 1993 etc. etc. 2. In pending appeals, a contention was raised by the appellant that appeals filed by the respondents under section 37 of the Arbitration Act, 1940 (hereinafter referred to as the Old Act ), are required to be decided on the basis of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the New Act ) because the arbitration agreement provides as under : "Subject as aforesaid the provisions of the Arbitration Act, 1940, 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 under this clause." That contention was rejected by the High Court. Hence, these appeals. 3. In support of aforesaid contention, learned senior counsel Mr. Desai for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation. Hence, in the proceedings where the award is passed under the Old Act, the remedy of filing appeal or petition for setting aside the said award would be as per the provisions of the Old Act. 8. Further, the complete answer to the contention of the learned counsel for the appellant is in the following paragraph (para 32) of Thyssen Stahlunion GMBH s case ( supra ) wherein the Court has specifically held that once the arbitral proceedings commenced under the Old Act, it would be Old Act which would apply in arbitral proceedings and also for enforcing the award : "32. Principles enunciated in the judgments show as to when a right accrues to a party under the repealed Act. It is not necessary that for the right to accrue legal proceedings must be pending when the new Act comes into force. To have the award enforced when arbitral proceedings commenced under the old Act under that very Act is certainly an accrued right. Consequences for the party against whom award is given after arbitral proceedings have been held under the old Act though given after the coming into force of the new Act, would be quite grave if it is debarred from challenging the award under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel Mr. Desai submitted that in Thyssen Stahlunion GMBH s case ( supra ) the phrase in relation to arbitral proceedings is given wider meaning so as to include arbitral proceedings before the arbitrator as well as the proceedings before the Court and once New Act came into force, further proceedings including appeals are required to be dealt with and decided in accordance with the New Act as per the agreement. For this purpose, he placed reliance on paragraph 22 of the said judgment. 10. In our view, paragraph 22 nowhere lays down that after the New Act came into force, even appeals filed under the provisions of Old Act are to be decided on the basis of the provisions contained in the New Act. Paragraphs 22 and 23 are as under : " The Conclusions 22. For the reasons to follow, we hold : 1. The provisions of the old Act (Arbitration Act, 1940) shall apply in relation to arbitral proceedings which have commenced before the coming into force of the new Act (the Arbitration and Conciliation Act, 1996). 2. The phrase "in relation to arbitral proceedings" cannot be given a narrow meaning to mean only pendency of the arbitration proceedings before the arbitrator. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e old Act will not apply in such cases where the parties agree that it will not apply in relation to arbitral proceedings which commenced before the new Act came into force. The expression "in relation to" is of the widest import as held by various decisions of this Court in Doypack Systems (P.) Ltd., Mansukhlal Dhanraj Jain, Dhanrajamal Gobindram and Navin Chemicals Mfg . This expression "in relation to" has to be given full effect to, particularly when read in conjunction with the words "the provisions" of the old Act. That would mean that the old Act will apply to the whole gambit of arbitration culminating in the enforcement of the award . If it was not so, only the word "to" could have sufficed and when the legislature has used the expression "in relation to", a proper meaning has to be given. The first limb of section 85(2)( a ) is not a limited saving clause. It saves not only the proceedings pending at the time of commencement of the new Act but also the provisions of the old Act for enforcement of the award under that Act ." 11. As stated in paragraph 22, Conclusion 1 without any reservation provides that the provisions of Old Act shall apply in relation to arbitral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. 13. Learned counsel for the appellant however relied upon paragraph 35 of Thyssen Stahlunion GMBH s case ( supra ). In our view, it nowhere lays down anything contrary to what we have stated above. Relevant portion of the said discussion is as under : . . .The expression "unless otherwise agreed" as appearing in section 85(2)( a ) of the new Act would clearly apply in the case of Rani Constructions in Civil Appeal No. 61 of 1999. Parties were clear in their minds that it would be the old Act or any statutory modification or re-enactment of that Act which would govern the arbitration. We accept the submission of the appellant Rani Constructions that parties could anticipate that the new enactment may come into operation at the time the disputes arise. We have seen section 28 of the Contract Act. It is difficult for us to comprehend that arbitration agreement could be said to be in restraint of legal proceedings. There is no substance in the submission of the respondent that parties could not have agreed to the application of the new Act till they knew the provisions thereof and that would mean that any such agreement as mentioned in the arbitration clause could ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
