TMI Blog2016 (8) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 34 of the award-debtor remains intact. The removal of disability is not complete. It is partial. The provision enables the award-debtor to apply to the Court for make the award inexecutable pending his application. His right to apply for interim relief during the pendency of the application under Section 34 is not affected in any way. In this way in fact the Amending Act brings in balance between the rights and liabilities of both the sides. The ambit and scope of the Amended Section 36, is to cure the defect by removing the imbalance. Thus the application of the provision on the petitions under Section 34 pending on 23rd October, 2015, is prospective. It makes no difference if the application under Section 34 filed by the award-debtor was prior to 23rd October, 2015. Removal of shadow over the rights of the award-holder cannot be said to be prejudicial to the award-debtor. He has to now only file an application for interim reliefs, which may or may not, be subject to imposition of condition. Now that effect of the operation of the amended Section 36, is held to be prospective, there is in fact no need to consider the alternate argument of justifying retrospective operation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel alongwith Mr. R. Panchmatia, Mr. P. Jehangir, Mr. A. Agarwal, Mr. M. Kanoria, Ms. Aastha Arora, Ms. Natasha K i/by. Khaitan Co. Advocate for the Judgement-debtor. (iii) At page-8, paragraph-6, line-12 Mr. Gaurav Joshi, the learned Senior Counsel appeared for the respondent and Mr. Sharon Jagtiani for the applicant in the Chamber Summons. To be replaced with, Mr. Gaurav Joshi, the learned Senior Counsel appeared for the Judgment Debtor and Mr. Sharan Jagtiani for the Decree Holder in the Chamber Summons. (iv) On page-2, the instructing attorney for petitioners in Chamber Summons No. 1532 of 2015 should be changed from Ms. R. Barot to Mr. R. Barot . The corrections be carried out and the order be read accordingly. 2. This is a common order on the above three Chamber Summonses seeking dismissal of the applications for execution of Arbitral awards on the ground that the same are misconceived and not maintainable. The applicant in the first two Chamber Summonses and the judgment debtor in the concerned execution applications is the Board of Control for Cricket in India ( BCCI for short). It has filed applications under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as it stands today read as follows: Pre-amendment. 36 ENFORCEMENT:- Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court. Post-amendment: 36 ENFORCEMENT:- (1) Where the time for making an application to set aside arbitral award under Section 34 has expired, then, subject to provisions of Sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the Court. (2) Where an application to set aside the arbitral award has been filed in the Court under Section 34, the filing of such application shall not by itself render the award unenforceable, unless the Court grants an order of stay of operation of said arbitral award in accordance with the provisions of sub-section (3), on separate application made for that purpose. (3) Upon filing of an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the application under section 34 of the Arbitration Act. 7. The learned counsel appearing for both the sides to the Chamber Summonses advanced extensive submissions on the question whether the amendment under the Amendment Act to Section 36 of the Arbitration Act, applies to the petitions under Section 34 of the Act, already filed and pending as on the date of the amendment. But thereafter it was felt that since the question of law under consideration, has wider implications and since there are other similar applications pending for consideration of the court, it would be only appropriate to give an opportunity to the Counsel and parties in person concerned, in similar applications, a hearing on the question of law. Therefore, the hearing of the Chambers Summonses was postponed and the office was directed to notify on the board of the Cause List, the question of law under consideration for the benefit of the members of Bar. Pursuant to that notice, the parties to Chamber Summons (L) No. 2336 of 2015 in Execution Application (L) No. 2748 of 2015, in Award dtd. 28th January, 2015, as amended on 16th February, 2015, appeared through their Counsel and made submissions on the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not include post-award proceedings i.e. proceedings for enforcement of the arbitral award or proceedings to challenge the arbitral award, which arise only after the award is made. It would also not include the proceedings prior to the commencement of arbitral proceedings. There is no dispute between the parties as regards the specific meaning of the term arbitral proceedings under the Arbitration Act. 10. The two parts of saving section 26 use different expressions to describe the proceedings to which they are meant to apply. The description in the first part is to arbitral proceedings and the description used in the second part is in relation to arbitral proceedings. As regards the construction, interpretation and meaning of the phrase used in the second part there is and there can be no dispute between the parties. Besides, that has been the specific subject of discussion of the Apex Court in it's decision in Thyssen Stahlunion Gmbh vs. Steel Authority of India Ltd. reported in (1999) 9 SCC, page 334 case, when the identical phrase used in Section 85(2)(a) of the Arbitration Act was discussed. At para-22.2 of the decision, the Apex Court interprets the phrase in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) ............. (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 13. Mr. Dada argued that the decision of the Apex Court in Commissioner of Income Tax, U.P. vs. M/s. Shah Sadiq and Sons, reported in (1987) 3 Supreme Court Cases, page 516 is authority for the proposition that a savings provision is not exhaustive of the rights that are saved and just because a right is not expressly saved by the saving provision, it does not mean that such right stands extinguished. A non-exhaustive savings clause leaves it to Section 6 of the General Clauses Act to determine which additional rights are saved. According to him, unless a repealing statute expressly extinguishes a vested right or ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adaptation of Laws Order, 1956 only modified the provisions of Section 1(2) of the Act and the effect of modification was that, the provisions of the Act, was no longer applicable to Bellary District which was comprised in the territory of Part-B State of Mysore. The Apex Court, rejected the contention opining that, there was no justification for the argument put forth. The result of the Adaptation of the Laws Order, 1956, so far as the Act was concerned, was that, the provisions of that Act were no longer applicable or in force in Bellary District. Thus, there was revocation or abrogation of the Act which amounted to repeal and Section 6 of the General Clauses Act, applied even in the case of a partial repeal or repeal of part of Act. In Shyam Sundar's case, the Apex Court referred to its earlier decision in State of Rajasthan V/s. Mangilal Pindwal, reported in (1996) 5 Supreme Court Cases page 60 to observe that substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. 15. Applying the principle in the above two decisions of the Apex Court, Mr. Dada submits that, substitution or replacement of Section 36 of the Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2015. This submission was adopted by Mr. Darius Khambhata, the learned Senior Counsel for RSW and Mr. Sharan Jagtiani for respondent in the third Chamber Summons. 18. The decision of Shah Sadiq's case relied upon by Mr. Dada arose out of repeal of Income Tax Act, 1922 by Income Tax Act, 1961. In the facts of that case, the assessee, a registered firm, suffered losses in Assessment Years 1960-61 and 1961-62 but made profit in 1962-63 in speculation business. In the assessment proceedings for 1962-63, the assessee claimed that the losses suffered in the previous years should be set off against the profit made in the succeeding year in view of Section 24(2) of the 1922 Act. The ITO rejected the claim by applying Section 75(2) of the 1961 Act. The 1961 Act, which came into operation on 1st April, 1962 did not provide for such a right. It provided an entirely new scheme under Section 75. The decision of the ITO was carried further to the higher courts. The Apex Court held that the right given to the assessee for the year 1961-62 under Section 24(2) of 1922 Act was an accrued right and a vested right. It could have taken away expressly or by necessary implications. This was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se i.e. to restrict the saving to arbitral proceedings and anything that falls outside arbitral proceedings is not saved. 21. The decision in Thyssen's case has been referred to by both sides for interpreting the phrase in relation to . In order to correctly appreciate the decision, it is necessary to notice the facts of that case. Thyssen had filed a petition in Delhi High Court under Sections 14 and 17 of the Arbitration Act, 1940 for making award rule of the court. Upon receiving notice of the petition, the respondent, Steel Authority of India had filed objections to the award under Section 30 of the Act. Thyssen later changed the stand and filed an application for execution of the award under the new Arbitration Act, 1996. By then, the time limit to set aside the award under the new Act had elapsed. The ground taken by Thyssen was that the Arbitration proceedings had been terminated with the making of the award on 24th September, 1997 and therefore the new Arbitration Act, 1996 was applicable for enforcement of the award. The respondent opposed the maintainability of the Execution Application. In these facts, the Apex Court was required to consider the question whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he old Act and it's substitution with the new Act. The total regime change would present serious practical difficulties in relation to the arbitral proceedings commenced under the old Act. The observations of the Apex Court in this regards are: 27. But then if the construction of the new Act leads to inconvenient and unjust results, the concept of a purposive approach has to be shed. Multiple and complex problems would arise if the award given under the old Act is said to be enforced under the new Act. Both the Acts are vastly different to each other. It has been rightly contended that when arbitration proceedings are held under the old Act, the parties and the arbitrator keep in view the provisions of that Act for the enforcement of the award. As noted above, under the old Act, there is no requirement for the arbitrator to give reasons for the award. That is not mandatory under the new Act. Section 27 of the old Act provides that the arbitrator or umpire may, if they think fit, make an interim award, unless of course a different intention appears from the arbitration agreement. An interim award is also an award and can be enforced in the same way as the final award. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommenced before 1996 Act, is clear. The expression, in relation to is incorporated in Section 85(2) of the Principal Act, 1996. In contrast, Section 26 of the Amendment Act, deemed to have come into effect from 23rd October, 2015, the expression in relation to has been deleted. The Legislature has also not incorporated the words, Court proceedings in Section 26 of the Amendment Act . and 67 When the legislature has expressly omitted the words in relation to arbitration proceedings in Section 26 of the Act, there is no scope for the Court to innovate or take upon the task of amending or altering the statutory provision. The structure and scope of the Arbitration and Conciliation Act, 1996 (Principal Act), has been amended, by incorporating new provisions by way of substitution and deletion . 24. The observations of the Apex Court in Thyssen's case on the possibility of use of the word to in the place of the words in relation to can be reversed and applied to the facts of the present case without disturbing the underlying principle. If the legislature desired to give wider scope to the first part of the Saving Section 26, it would have used the same ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 34 of the Arbitration Act. This prevented the award-holder from enjoying the fruits of his success merely because the unsuccessful award-debtor filed an application to challenge the award. As pointed out by Mr. Khambhata, this position of law was adversely commented on by the Supreme Court in National Aluminium Co. Ltd. v. Pressteel Fabrications (P) Ltd. (2004) 1 SCC 540 in the following words: However, we do notice that this automatic suspension of the execution of the award the moment an application challenging the said award is filed under Section 34 of the Act leaving no discretion in the court to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs. We do find that there is a recommendation made by the concerned Ministry to the Parliament to amend section 34 with a proposal to empower the civil court to pass suitable interim orders in such cases. In view of the urgency of such amendment, we sincerely hope that necessary steps would be taken by the authorities concerned at the earliest to bring about the required change in law. This criticism was taken note of by the Law Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the arbitral proceedings. According to him legal pursuit of the remedy of arbitration all the way upto the appeal is one singular proceeding. The right to file application to challenge the award under Section 34 and the limits on enforceability of the award under Section 36 of the unamended Arbitration Act form a package of rights. This package of right became available to BCCI on the date of commencement of the arbitral proceedings under Section 21 of the Arbitration Act. That was several years prior to 23rd October, 2015 when the unamended Arbitration Act was applicable. Therefore the amended Section 36 cannot be applicable to the applications of BCCI. 28. Mr. Dada seeks to draw support for the above submission from the decisions of the Apex Court in Garikapati v. Subbiah Choudhry and Ors. reported in AIR 1957 S.C. 540, para 23 of the decision relied upon by Mr. Dada reads as under: From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the date of the institution of the suit, he had acquired a vested right to appeal to the Federal Court, which had since then been replaced by the Supreme Court. This vested right of appeal is a substantive right and could be taken away only by a subsequent enactment, if it so provides expressly or by necessary intentment and not otherwise. The Apex Court held that, the legal pursuit of a remedy, Suit, Appeal and Second Appeal are really but steps in a series of proceedings, all connected by an intrinsic unity and are to be regarded as one legal proceeding. In the facts of that case, the Apex Court noted that the Constitution of India by Article 395 repealed the Government of India Act and thereby abolished the Federal Court. It, however, continued the Abolition of Privy Council Jurisdiction Act, 1949, which directed that the Federal Court in addition to its other powers, would have the appellate powers exercised by the Privy Council. The adaptation order modified Sections 109 and 110 of the Code of Civil Procedure, inter-alia, by raising the valuation of ₹ 10,000/- to ₹ 20,000/-. The provision, however, by virtue of Clause-20 of the order, did not affect any right, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igant concerned. An aggrieved party, is entitled to pursue such a vested substantive right, as and when, an adverse judgment or order is passed. Such a vested substantive right can be taken away by an amendment, only when the amended provision, expressly or by necessary intendment, so provides. Failing which, such a vested substantive right can be availed of, irrespective of the law which prevails, at the date when the order impugned is passed, or the date when the appeal is preferred. For, it has repeatedly been declared by this Court, that the legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps, are connected by an intrinsic unity, and are regarded as one legal proceeding . Then in the facts of that case, the Apex Court held that, the amendment to Section 15-Z of SEBI Act, having reduced the appellate package adversely affected the vested appellate right of the litigant concerned. The right of appeal being a vested right, the appellate package as was available at the commencement of the proceedings would continue to vest in the parties engaged in the lis till the eventual culmination of the proceedings. When a lis comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that appeal shall mean only a challenge to a decree or order where the entire matrix of law and fact can be re-agitated with respect to the impugned order/decree. There is no quarrel that Section 34 envisages only limited grounds of challenge to an award; however, we see no reason why that alone should take out an application under Section 34 outside the ambit of an appeal especially when even a power of revision is treated as an exercise of appellate jurisdiction by this Court and the Privy Council . 32. Mr. Khambhata submitted in reply that the argument advanced that the application under Section 34 of the Arbitration Act is akin to an appeal under Code of Civil Procedure cannot be accepted in view of the direct decision to the contrary of the Apex Court in J.G. Engineers Private Limited Versus. Union of India and Another, reported in (2011) 5 Supreme Court Cases page 758. By that decision while considering the scope of the provision of Section 34 of the Arbitration Act, the Apex Court held that, A civil court examining the validity of an arbitral award under Section 34 of the Act exercises supervisory and not appellate jurisdiction over the awards of an Arbitral Tribunal. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d application of Section 7 of The Interest Act to an application under Section 34 of the Arbitration Act does not lay down a general proposition that an application under Section 34 is an appeal. Careful reading of the decision in fact indicates otherwise. The Apex Court has expressly stated therein that it was not considering the meaning of the term appeal under the Arbitration Act. At para 40 it says: Hence, the right context in which the meaning of the term appeal should be interpreted is the Interest Act itself. The meaning of this term under the Arbitration Act or the Code of Civil Procedure would have been relevant if the Interest Act had made a reference to them. For this very reason, we also do not find it relevant that the Arbitration Act deals with applications and appeals in two different chapters. We are concerned with the meaning of the term appeal in the Interest Act, and not in the Arbitration Act . It reiterates at para 43 that the word appeal appearing in Section 7 of the Interest Act need not be necessarily interpreted within the meaning of that word in Code of Civil Procedure. This view gets fortified by the reasons stated by the Apex Court at para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitral award under Section 34 of the Arbitration Act; exercises supervisory and not appellate jurisdiction. There are several distinguishing factors between an application under Section 34 of the Arbitration Act and an appeal under Code of Civil Procedure. In arbitral reference, unlike in civil matters there is total freedom available to the parties as regards the choice of the process of adjudication of dispute. The choice is as regards the forum, as well as the strength of the forum. The parties can further choose the place of adjudication, the time of adjudication and the procedure for adjudication. In arbitral proceedings the parties can represent themselves or be represented by anyone of their choice. With this extent of freedom of choice available, the parties are ordinarily expected to accept, the decision of the forum of their choice. Therefore, the Arbitration Act provides for a very restricted challenge to the arbitral award in a civil Court. A glance at the grounds of challenge specified in Section 34 of the Arbitration Act is sufficient to note that each ground goes to the root of the matter. While exercising the jurisdiction under Section 34 the civil court cannot co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;. According to him the sole remedy available to a party who is aggrieved by arbitral award is to file an application under Section 34 of the Act. It has to be treated as a continuation of the arbitral proceedings and hence a package of rights is available to the litigant of arbitral proceeding, application under Section 34 of Arbitration Act and appeal under Section 37 of the Arbitration Act. 37. In my considered opinion, it is not possible to agree with Mr. Dada that, an application under Section 34 of the Arbitration Act is a continuation of the arbitral proceedings. As provided in the Arbitration Act itself, the arbitral proceedings terminate on passing of the final award. The challenge to the arbitral award provided for in the Act is minimal. The only order that can be passed on the challenge under Section 34 is either of upholding the Award as it is or of setting it aside in its entirety, except where parts of the award are separable. The continuation of the proceedings and the package of rights available could at the highest be for the proceedings under Section 34 and Section 37 of the Arbitration Act. Section 36 which is about enforceability of the arbitral award cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent participle has been and not the past participle in the opening portion of the Section and this indicated that the section was intended to be used only where a person was convicted subsequent to coming into force of the Act. The Apex Court noted that Section 57 of the Bombay Police Act does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons who have been convicted of the offences of a particular kind. The Section only enables the authorities to take note of their convictions and to put them outside the area of their activities so that the public may be protected against the repetition of such activities. In that circumstance, it held that the verb has been is in present perfect tense and may mean either shall have been or shall be . Looking to the scheme of the enactment as a whole and particularly the other portions of it, it was manifest that the former meaning is intended and the verb has been describes past actions. It is used to express a hypothesis without regard to time. 40. Mr. Subramaniyam, submitted in reply that the use of verb has been will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls to give appropriate reliefs in case of discharge or dismissal of workmen. It provided that, where an industrial dispute relating to dismissal of a workman has been referred to a Labour Court etc. for adjudication, if the Court is satisfied that the order of dismissal is not justified, it may set aside the order of dismissal and direct reinstatement. It was contended that, the words in the section clearly show that, it applies only to disputes in respect of which a reference is made after the section has come into force and that the expression only signifies that on the happening of a particular event, namely a reference made in future the powers given to the Court can be exercised. The Apex Court held that, the question whether the expression relates to past or future events, is to be gathered from the context in which they appear, as well as, the scheme of the particular legislation. Further, at para-59 it observes: The words 'has been referred' in Section 11-A are no doubt capable of being interpreted as making the section applicable to references made even prior to December 15, 1971. But is the section so expressed as to plainly make it applicable to such re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Clauses Act. It has already been held hereinabove that, two other conditions under Section 6 of the General Clauses Act, namely the saving clause being non-exhaustive and absence of different intention appearing in the saving section are not satisfied. Section 26 of the Amending Act is exhaustive as by necessary implication, the proceedings other than arbitral proceedings are covered by the first part of Section 36 of the Amended Act. Nonetheless, considering the exhaustive submissions advanced, it will be only appropriate to see whether any right is accrued or vested in BCCI under Section 36 of the unamended Arbitration Act against enforcement of arbitral awards. 44. Before adverting to several decisions, cited on behalf of both the sides, it would be convenient to look into the two relevant provisions, both pre-amendment and post-amendment, for what is available thereunder to the award-holder and award-debtor. A reference to the Arbitration Act, 1940 is also inevitable. 45. Under Arbitration Act, 1940 before an award could be made enforceable, the intervention of Court was essential. First, an award had to be filed in Court under Section 14 of the 1940 Act with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arbitral award tested before a Court of law. Further, on filing an application under the Original Section 34 within the time limit stipulated therein, the Original Section 36, conferred upon the applicant, the privilege of not having the arbitral award under challenge executed/enforced against the applicant, unless and until, the said application was dismissed. This privilege accrued to the applicant immediately upon the application under the Original Section 34 being filed. Per-contra, Mr. Khambhata and Mr. Seervai submitted that, original Section 36 cast only a shadow or an impediment on the enforceability of an arbitral award and imposed a disability on a successful claimant from being able to enjoy the fruits of his success by enforcing the arbitral award merely because a petition was filed under Section 34. It is their argument that, this shadow or impediment created by original Section 36, can never be termed a right let alone as an accrued or vested right and at the highest, it can be termed as an existing right . 47. Mr. Dada, referred to the decision of the Delhi High Court dated 8th December, 2015 in O.M.P. No. 408 of 2007 (viz. Ministry of Defence, Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Firm Hansraj Nathuram, reported in 1971(1) Supreme Court Cases, page 721. In the facts of that case, the decree holders who had obtained the decree in the court at Bankura, West Bengal had applied for its transfer for execution to Morena in the then state of Madhya Bharat for execution. On transfer of the decree when the execution proceedings commenced in the court at Morena, the judgment-debtor resisted on the ground that the Court had no jurisdiction to execute the same as the decree was of foreign court and that the same had been passed ex-parte. This contention was accepted by the court and execution petition dismissed. Later the Code of Civil Procedure (Amendment Act) came into force as a result of which the Code of Civil Procedure was extended to the state of Madhya Bharat as well as various other places. The decree-holders then appealed against the order of the execution application. It was contended on behalf of the judgment debtors that when the decree was passed, they had a right to resist it in the court at Morena in view of the provisions of Indian Code of Civil Procedure then in force and the same was a vested right. It was further contended that the right was preserve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before it involved any rights accrued or obligation incurred so as to attract old law to them to support initiation or continuation to the proceedings against the landholders after the repeal. It was contended that even if the provisions of the old Act were held to have been saved, it could not be said that there was any right accrued in favour of the State or any liability incurred by the landholders in the matter of determination of ceiling area so as to attract to their cases, the provisions of the old law. It was sought to be emphasized before the court that the excess land would vest in the state only after completion of the proceedings and upon the landholder signifying his choice as to the identity of the land to be surrendered. The Apex Court while rejecting the application as regards the right claimed by the landholders observed as follows: 30 For purposes of these clauses the right must be accrued and not merely an inchoate one. The distinction between what is and what is not a right preserved by Section 6 of the General Clauses Act, it is said, is often one of great fineness. What is unaffected by the repeal is a right 'acquired' or 'a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree within a particular territory can be considered as a privilege. All that has happened in view of the extension of 'the Code' to the whole of India in 1951 is that the decree which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction..... It was the invalidity of the order transferring the decree to the Morena court that stood in the way of the decree holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors...... By the extension of 'the Code' to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute the decree. 11 It was then argued that as the Code of Civil Procedure was not applicable to Goa at the time when the Bombay High Court passed the order transferring the decree to the Goa court, the order of transfer was absolutely without jurisdiction. We are, however, unable to agree with this contention. To begin with, as the decree was passed by the Bombay High Court. Section 38 of the Code of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is interim advantage is not completely taken away. The disability imposed on the award-holder under original Section 36 was absolute. The award was simply not executable during pendency of the challenge to it. Under the amended Section 36, this disability has been only made relative. Firstly, what was available earlier on a platter has to be now asked for. Secondly, grant of it can be conditional. 52. Extensive arguments have been advanced on the effect of the amendment to Section 36 of the Arbitration Act. Is the effect prospective or it is retrospective. BCCI obviously contended that, the amendment is prospective in nature and hence applicable only to such applications under Section 34 as filed after 23rd October, 2015. The argument on behalf of KPCL and RSW is two-fold. Firstly, that the application of the amendment to the pending matters would be prospective in nature. If the first argument is not acceptable, the second argument is that, it is retrospective in nature. The further arguments to support the retrospective effect are (i) the amendment is curative and (ii) the amendment is in respect of procedural matters. 53. Mr. Dada, argued that the amendment to Section 36 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC page 840, Hitendra Vishnu Thakur v. State of Maharashtra, reported in (1994) 4 SCC page 602, Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, reported in (1999) 8 SCC page 16 and Shyam Sunder v. Ram Kumar, reported in (2001) 8 SCC page 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held that the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature. 26. Therefore, unless the language used plainly manifests in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective. 27. Rights of appeal conferred under Section 19(1) of FEMA is therefore a substantive right. The procedure for filing an appeal under sub-section (2) of Section 19 as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award and imposed a disability on the successful claimant as regards enforcement of the award. Even under the original section, the shadow cast on the arbitral award would be removed by the period of limitation for filing petition under Section 34 of the Arbitration Act expiring or dismissal of the petition filed under Section 34 of the Arbitration. Under the Amended Section 34 of the Arbitration Act, the shadow or impediment on the enforceability of the arbitral award has been removed to enable a successful claimant to enforce the arbitral award, unless the award-debtor obtains an order of interim stay from the Court under Section 36(3) of the Arbitration Act. The lifting of this shadow or impediment, on the enforceability of the arbitral award operates only in future i.e. after 23rd October, 2015 on the basis of an existing state of affairs, even if the award was passed or the petition under Section 34 of the Arbitration Act was filed before 23rd October, 2015. Therefore, the Amended Section 36 of the Arbitration Act cannot be said to operate retrospectively, its operation is prospective in nature. 57. Mr. Seervai takes support from the following para in Bennion on Statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1846. The sessions confirmed the order of removal, subject to two questions, of which we take the effect, and not the precise terms. First: was the pauper irremovable by stat. 9 and 10 Vict. c. 66, s. 2, which enacted that no woman residing in any parish with her husband at the time of his death shall be removed, nor shall any warrant be granted for her removal, from such parish for twelve months next after his death if she so long continue a widow? If was said that the operation of the statute was confined to persons who had become widows after the Act passed, and that the presumption against a retrospective statute being intended supported this construction; but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing. The clause is general, to prevent all removals of the widows described therein after the passing of the Act; the description of the widow does not at all refer to the time when she became widow; and we are therefore of opinion that the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AND There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights. To construe this section I have simply to read it, and, looking at the Act in which it is contained, to say what is its fair meaning. 60. In the third decision in In re A SOLICITOR'S CLERK, reported in [1957] 1 W.L.R. Queen's Bench Division page 1219, the Court was concerned with the question, as to whether the disqualification added in the year 1956 by which a person was disqualified from acting as a solicitor's clerk if he was convicted of larceny, embezzlement or fraudulent conversion of any property irrespective of whether it belonged to his employee or one of his clients could be applied to a person who was convicted of larceny in the year 1953 i.e. before the disqualification was added. The Court followed the decision in West and Gwynne's case to observe as follows:- But in my opinion this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. In P. Susheela V/s. University Grants Commission reported in: (2015) 8 SCC page 129, the Apex Court was considering applicability of the Regulation promulgated by University Grants Commission prescribing minimum qualifications as eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions. While distinguishing between existing right and vested right, the Apex Court held that, merely because the regulation laid down additional eligibility condition, it does not mean that any vested right of the appellants was affected, nor does it mean that the regulation is, retrospective in operation. A vested right would arise only if the appellant had actually been appointed to the post. Till then, there was no vested right and the only right was to be considered for the post. The condition therefore was, prospective in action as it would apply only at the stage of appointment. 63. In yet another decision, the Apex Court, in similar situation, has referred with approval, the decision in West V/s. Gwyne's case. In New India Sugar Works V/s. State of Uttar Pradesh Others reported in (1981) 2 SCC page 293, it was considering order of U.P. Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant observations of Buckley L.J. are : As matter of principle an Act of Parliament is not without sufficient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights. To construe this section, I have simply to read it, and, looking at the Act in which it is contained, to say what is its fair meaning. 65. Coming to the facts of the present case, in view of the above position in law, application of amended Section 36 to the existing matters i.e. the applications under Section 34 of the Arbitration Act, that are pending as on 23rd October, 2015 is giving prospective effect to the amendment and not retrospective effect. The most relevant consideration for applying it to the existing matters is the nature, ambit and scope of the Amending Act. Under the original Section 36, filing of an application under Section 34 had the effect of casting shadow upon the executability of the award. This act of the award-debtor disabled the award-holder from executing the award in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
