TMI Blog2016 (3) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Arbitral Tribunal under Section 17 of the 1996 Act was always of the widest amplitude. From the inception, the Arbitral Tribunal had power under the 1996 Act to order a party to take any interim measure of protection, as the Arbitral Tribunal might consider necessary, in respect of the subject matter of the disputes. The Arbitral Tribunal, therefore, all along had all the powers of Court under Section 9 of the 1996 Act. The Amendments to Section 17 of the 1996 Act by the Amendment Act of 2015 are only clarifactory - It is a cardinal principle of construction that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation, but the rule in general is applicable when the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only. In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective, unless such a construction is textually inadmissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned District Judge, Alipore, under Section 9 of the 1996, Act praying for inter alia an order of injunction restraining the respondent, his men, agent, representatives from transferring, alienating or creating rights in favour of third parties in respect of the assets and properties, including bank accounts, investment, securities in the name of the partnership firm, jointly owned by the petitioner and the respondent and other consequential reliefs, including appointment of a receiver. On the said application being moved, the Court of the learned District Judge passed an order restraining the respondent from transferring, alienating, disposing of or parting with possession or creating third party interest in respect of the assets and properties of the partnership firm. After the aforesaid order was passed an Arbitral Tribunal was constituted, and arbitration proceedings commenced. While the arbitration proceedings were pending, Parliament enacted the Arbitration and Conciliation (Amendment) Act, 2015, hereinafter referred to as the Amendment Act of 2015, which came into force with retrospective effect from 23rd October, 2013. After the Amendment Act of 2015 was enacted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. 17. Interim measures ordered by arbitral tribunal.- (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. (2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1). Some of the relevant provisions of the Amendment Act of 2015 are set out herein below for conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908, in the same manner as if it were an order of the Court. 26. Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act. Section 9(3) incorporated in the 1996 Act, by the Amendment Act of 2015 provides that once the Arbitral Tribunal has been constituted, the Court shall not entertain an application under Section 9(1), unless the Court finds that circumstances exist, which may not render the remedy provided under Section 17 efficacious. Section 26 of the Amendment Act of 2015 provides that nothing contained in the said amendment Act is to apply to arbitral proceedings commenced in accordance with the provisions of Section 21 of the principal Act, before the commencement of the Amendment Act of 2015, unless the parties otherwise agree, but the Amendment Act would apply in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which a request for the reference of dispute to arbitration, is received by the respondent. Arbitral proceedings are proceedings before an Arbitral Tribunal, and no proceedings in Court under the provisions of the 1996 Act. Section 21 of the 1996 Act creates a legal fiction by which the arbitral proceedings commence on the date of receipt, by the respondent, of a request to refer the dispute to arbitration. Thus for the purpose inter alia of limitation the Arbitration proceedings commence on the date of receipt of a request by the respondent, to refer the dispute to arbitration, so that a claim is not defeated merely by delaying the reference. Section 32 of the 1996 Act provides as follows:- 32. Termination of proceedings.- (1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2). (2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where- (a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2015. In Thyssen Stahlunion Gmbh Etc vs. Steel Authority Of India Ltd (supra) the Supreme Court held that where arbitral proceedings had commenced before the enforcement of the 1996 Act, the arbitral award would have to be enforced in accordance with Arbitration Act, 1940 and not in accordance with Section 36 of the 1996 Act. The judgment in Thyssen Stahlunion Gmbh Etc vs. Steel Authority Of India Ltd (supra) was rendered in the context of Section 85(2)(a) of the 1996 Act, which is set out hereinbelow for convenience, along with Section 85(1): 85. Repeal and savings.-(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed. (2) Notwithstanding such repeal,- (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force; There is a significant difference between the language of Section 86(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1996 Act, as amended by the Amendment Act of 2015, in case of arbitral proceedings which had commenced before the Amendment Act of 2015 came into force. Mr. Chowdhury submitted that, since the Amendment Act did not apply to arbitral proceedings that had already commenced before the said Act came into force the arbitral tribunal lacked power to grant those reliefs. The only remedy available to the appellant was to approach Court under Section 9 of the 1996 Act. The power of the Arbitral Tribunal under Section 17 of the 1996 Act was always of the widest amplitude. From the inception, the Arbitral Tribunal had power under the 1996 Act to order a party to take any interim measure of protection, as the Arbitral Tribunal might consider necessary, in respect of the subject matter of the disputes. The Arbitral Tribunal, therefore, all along had all the powers of Court under Section 9 of the 1996 Act. The Amendments to Section 17 of the 1996 Act by the Amendment Act of 2015 are only clarifactory. The amendments have possibly been made only by way of abundant caution. It is a cardinal principle of construction that every statute is prospective unless it is expressly or by necessary impl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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