TMI Blog2003 (9) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... The words "commencement of the arbitration proceedings" have not been defined in the 1940 Act. They have to be given their ordinary meaning having regard to the provisions contained in Chapter II thereof. - CIVIL APPEAL NOS. 2477 AND 2478 OF 1997 - - - Dated:- 3-9-2003 - V.N. KHARE AND S.B. SINHA, JJ. Tapas Ray, Satish Vig, Chinmoy Khaladkar and S.K. Nandy for the Appellant. Bhaskar P. Gupta, Raj Kumar Gupta, Sheo Kumar Gupta and A.N. Bardiyar for the Respondent. ORDER 1. As a result of an agreement between the parties certain work orders were given to the respondent herein. It is alleged that the respondent completed the construction work on 3rd July, 1990. Subsequently, on 20th October, 1993, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996. We do not find any merit in the contention. 4. It may be noticed that the earlier arbitrator was appointed by the Chief Engineer on 7th September, 1994 under the Arbitration Act, 1940. The new Act came into force with effect from 25-1-1996. Section 21 of the new Act provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Clause ( a ) of sub-section (2) of section 85 of the new Act provides that notwithstanding repeal of the Arbitration Act, 1940, the provisions of the said enactment shall apply in relation to arbitral proceedings which commenced before this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 thereof and also appeal arising thereunder." There cannot be any doubt that invoking the arbitration clause by a party and appointment of arbitrator pursuant thereto and in furtherance thereof are proceedings which are required to be taken under the 1940 Act. Such steps are necessary in terms of Chapter II thereof as is evident from the fact that even in terms of sub-section (1) of section 20 of the Act, an application there under would be maintainable by a person who do not intend to proceed under Chapter II praying for filing of arbitration agreement in court. 8. In Thyssen Stahlunion GmbH s case ( supra ), this Court was concerned with enforcement of a foreign award and execution thereof. In respect of a foreign award, the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to foreign arbitral proceedings to hold as to what is to be treated as "date of commencement" in those foreign proceedings. We would, therefore, hold that on a proper construction of section 85(2)( a ) the provision of this sub-section must be confined to the old Act only. Once having held so it could be said that section 6 of the General Clauses Act would come into play and the foreign award would be enforced under the Foreign Awards Act. But then it is quite apparent that a different intention does appear that there is no right that could be said to have been acquired by a party when arbitral proceedings are held in a place resulting in a foreign award to have that award enforced under the Foreign Awards Act." "42. We, therefore, hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the arbitrator held that the arbitrators enter on the reference as soon as they have accepted their appointment and have communicated to each other about the reference. If the Arbitrator fails in his duty to enter on the reference or make a public award during the period stipulated under rule 3 of the First Schedule indisputable a cause of action will arise for this removal or appointment of a new arbitrator in terms of sections 11 and 12 of the 1940 Act. The words "commencement of the arbitration proceedings" have not been defined in the 1940 Act. They have to be given their ordinary meaning having regard to the provisions contained in Chapter II thereof. 12. Furthermore, section 85(2)( a ) of the new Act may have to be construed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
