TaxTMI 
TaxTMI 
2003 (5) TMI 358
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.... "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 appellant relied upon the decision in Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. [1999] 9 SCC 334. 4. Before referring to the decision in Thyssen Stahlunion GHBH's case (supra), we would first refer to section 85 of the New Act, which reads as under :- "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Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.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 ....
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....ce. 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 provisions of the old Act. Structure of both the Acts is different. When arbitral proceedings commenced under the old Act it would be in the mind of everybody, i.e., the arbitrators and the parties that the award given should not fall foul of sections 30 and 32 of the old Act. Nobody at that time could have thought that section 30 of the old Act could be substituted by section 34 of the new Act. As a matter of fact appellant Thyssen in Civil Appeal No. 6036 of 1998 itself understood that the old Act would apply when it approached the High Court under sections 14 and 17 of the old Act for making the award rule of the court. It was only later on that it changed the stand and now took the position that the new Act would apply and for that purpose filed an application for execution of the award. By that time ....
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....isions 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 would cover not only proceedings pending before the arbitrator but would also cover the proceedings before the court and any proceedings which are required to be taken under the old Act for the award becoming a decree under section 17 thereof and also appeal arising thereunder. 3. In cases where arbitral proceedings have commenced before the coming into force of the new Act and are pending before the arbitrator, it is open to the parties to agree that the new Act be applicable to such arbitral proceedings and they can so agree even before the coming into force of the new Act. 4. The new Act would be applicable in relation to arbitral proceedings which commenced on or after the new Act comes into force. 5. Once the arbitral proceedings have commenced, it cannot be stated that the right to be governed by the o....
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....tion 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 proceedings which have commenced before coming into force of the New Act. Conclusion 2, in our view, is required to be read in context with Conclusion 1, that is to say, the phrase 'in relation to arbitral proceedings' cannot be given a narrow meaning to mean only pendency of the proceedings before the arbitrator. It would cover not only proceedings pending before the arbitrator but would also cover the proceedings before the court and any proceedings which are required to be taken under the old Act for the award becoming a decree under section 17 thereof and also appeal arising thereunder. Hence, conclusions 1 and 2 are to be read together which unambiguously reiterate that once the arbitral proceedings have started under the Old Act, the Old Act would apply for the award becoming decree and also for appeal arising thereunde....