JUDGMENT Vikramajit Sen, J.
1. Parliament's resolve of interring the Arbitration Act, 1940 would be futile if the contention raised in this petition on behalf of the Mahanagar Telephone Nigam Ltd. (MTNL for short) is to be accepted. Further, the ghost of the repealed statute would have encountered only an unsuccessful exorcism despite the perspicuous judgment of the Apex Court in Thyssen Stahlunion GMBJ vs. Steel Authority of India Ltd., if these arguments are to be accepted. On 20.9.2002 my learned Brother S.K. Aggarwal, J. had recorded in the present proceeding that - " the issue involved here is whether the old Arbitration Act of 1940 would apply in this case". It is on this question that arguments have been addressed by learned counsel for the adversaries.
2. The annals of the litigation are not in dispute. MTNL had awarded a contract to Unibros Ltd. (Unibros for short) for the construction of a telephone exchange-cum- office building in the CGO Complex, Lodhi Road, New Delhi in 1990. On 11.9.1991 Unibros invoked the Arbitration Clause; in response MTNL terminated the contract invoking Clause 25 of General Conditions of Contract (for short GCC). Thereafter Unibros had filed a suit before this Court in 1991 in which the first Arbitrator was appointed by Orders dated 5.12.1991. An interim Award was announced on 13.3.1992 but this Award was assailed before this Court and was set aside by Orders dated 24.5.1999 which read thus:
"Suit No. 1124-A/1992 "This petition has been preferred by the petitioner, M/s Uni Bros under Section 14 & 17 read with Section 27 of Arbitration Act, 1940 against the Maha Nagar Telephone Limited. This matter has been argued for some time. Objections have been made against the award of Mr. N.N. Chakraborty.
Counsel for the parties submit that the present case relates only to issue pertaining to rescision of the contract and encashment of bank guarantee Along with interest and cost but the remaining claims and counter-claims arising out of the same contract were still pending adjudication through arbitration before Shri Surender Nath, Arbitrator.
After hearing parties and looking to the nature of disputes involved in this petition, I direct that Mr. K.D. Bali, retired Director General, CPWD, S-147 Panchsheel Park, New Delhi, is appointed as an Arbitrator to adjudicate upon afresh all the disputes, claims and counter-claims which had been pending either before Mr. Chakborty or Mr. Surender Nath. The issue pertaining to expenses incurred towards bank guarantee charges shall also be determined by the Arbitrator.
The award of Mr. Chakraborty would be treated as non existent.
The objection petition against the impugned award is accordingly disposed of.
The petitioner is directed to keep the bank guarantee alive till the Arbitrator makes/publishes his award.
The Arbitrator shall decide his own fees. Parties are directed to appear before the Arbitrator on 5.6.1999 at 11 a.m. at his residence.
The Suit and all surviving applications are accordingly disposed of. No orders as to costs.
A copy of this order be sent to the newly appointed Arbitrator.
dusty."
3. The Arbitrator appointed by the Court, namely, Shri K.D. Bali, published his Award dated 29.12.2000 in which a sum of Rs.2,44,62,861.68 was ordered to be paid by the MTNL to Unibros. This Award has been challenged by the MTNL in this petition, which is numbered as Suit No. 266A/2001, under Sections 14 and 17 of the Indian Arbitration Act, 1940 praying for the issuance of appropriate directions to the Arbitrator to file his Award along with the arbitral records. This suit was filed on 27.1.2001. Execution No. 163/2001 was filed on 30.7.2001 by Unibros under the Arbitration and Conciliation Act, 1996. On 31.7.2001 Hon'ble J.D. Kapoor, J. took note of the statement of the counsel for the Decree Holder, viz. Unibros that no application under Section 34 of the Arbitration Act had been filed till that date. The learned Judge recorded that "since the award was pronounced on 29.12.2000 it has to be enforced as a decree under Section 36, as the Objections under Section 34 of the Act are not filed within three months. Let warrants of attachment to issued (dusty also) for 2.11.2001 in terms of prayer (i)." On 10.8.2001 MTNL filed EA No. 306/2001 in Execution No. 163/2001 under Order XXI Rule 26 and 29 read with Section 151 of the CPC and Section 41 of the Arbitration Act, 1940 for stay of the execution proceedings. It was ordered by the Court that the attached amount shall not be disbursed to the Decree Holder, and this Order continues to operate till date. Meanwhile Suit No. 266-A/2001 was listed before the Joint Registrar (A) on 8.8.2001 and it was noted that the Award and proceedings have been filed. Notice of the suit was issued to Unibros for 28.2.2002. On 5.9.2001 MTNL filed Objections against the Award dated 29.12.2002 praying therein that the said impugned Award may be set aside/quashed on the grounds set forth in Section 30(a) and (c) read with Section 33 of the Arbitration Act (X of 1940). No reply to these Objections had been filed by the Unibros.
4. It is in these circumstances that Mr. C.S. Vaidyanathan, learned Senior counsel appearing for the MTNL, has contended that Indian Arbitration Act, 1940 continues to hold sway over the disputes between the parties and has been correctly invoked by the MTNL. The argument is that the Order dated 24.5.1999 could not have been passed under the 1996 Act and, therefore, it was evident that all the parties proceeded on the assumption that 1940 Act applied. It has been forcefully contended that this can be the only equitable construction relatable to the facts of the case since otherwise the said Order as well as the Award would be non est. It has also been underscored that the said Order dated 24.5.1999 directs that the Arbitrator to adjudicate upon afresh the claims and counter-claims which have been pending before either of the erstwhile Arbitrators. In that Order itself it was recorded that the interim Award dated 13.3.1992 passed by Mr. Chakarborty would be treated as non-existent. The decision in Nagubai Ammal and Others Vs. B. Shama Rao and Others has been pressed into service in support of the contention. In that case an agent had delivered goods to the customer contrary to the instructions of the principal who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction the principal next filed a suit against the agent for damages on the grounds of negligence and breach of duty. In these circumstances, it was observed as follows:
"....The ground of the decision is that when on the same facts, a person has the right to claim one of two beliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J..
" Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act."
The observations of Scrutton, L.J. on which the appellants rely are as follows:
"A plaintiff is not permitted to `approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election- namely, that no party can accept and reject the same instrument: Ker v. Wauchope (1819) 1 Bligh 1 (21) (E): Douglas-Menzies v. Umphelby 1908 AC 224 (232) (F). The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction".
It is clear from the above observations that the maxim that a person cannot `approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England Volume XIII, p.454, para 512:
"On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it".
5. Reliance has also been placed on the observations of the Apex Court in Vikas Motors Ltd. Vs. Dr. P.K. Jain, and Beepathuma and others Vs. Welasari Shankaranayana Kadamboli and others. to emphasise the position that Unibros cannot be permitted to approbate and reprobate, and having once invoked the 1940 Act, it cannot be permitted to contend that the 1996 Act is applicable. Reliance has also been placed on the decision of the Bombay High Court in State of Goa Vs. M/s Heera Constructions, Civil Revision Application No. 159/1998 dated 5th May, 2000. To my mind, an extremely important factor has been completely overlooked while advancing this contention. As is evident from the narrative of events, Sections 14 and 17 read with Section 27 of the 1940 Act had been invoked in the Objections filed in 1992 which came to be disposed of in terms of the Orders dated 24.5.1999. What is critical to the analysis is not the date of the Order by which the challenge to the impugned interim Award was decided. What is singularly significant and central to the discussion is that those Objections before the Court were predicated on the provisions of the 1940 Act. It would be an anachronism of serious importance to consider those Objections in the context of the 1996 Act because the parties had a vested right to have them considered under the law prevailing at that time viz. 1992. Even if this conclusion is conceived to be contradictory to that articulated below, the Order appointing Mr. K.D. Bali having attained finality, no appreciable difference would ensue. Of course, the 1996 Act could have completely deracinated the 1940 Act by its unqualified and unequivocal abrogation, but this has not been done as is palpably evident from Section 82(2) which speaks in clear language that the provisions of the 1940 Act shall apply to arbitral proceedings which commenced before 1996. I am in respectful agreement with the opinion expressed by my learned Brother O.P. Dwivedi, J. in National Thermal Power Corporation Limited v. Vijay Fire Protection Systems Limited and others, and by reverse reasoning, on (a) Bhai Sunder Singh & Sons v. Delhi Development Authority, and (b) Atree Associates v. Delhi Development Authority, 2002(1) RAJ 68.
6. The current conundrum has indubitably to be decided on the observations made by the Hon'ble Supreme Court in Thyssen's case (supra). In these circumstances it would be beneficial for facility of reference to reproduce the following extracts from that case:--
"The Conclusions :
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 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 award becoming decree under S. 17 thereof and also appeal arising there under.
3. In cases where arbitral proceedings have commenced before coming into force of the new Act and are pending before the Arbitrator, it is open to the parties to agree that 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 right to be governed by the old Act for enforcement of the award was an inchoate right. It was certainly a right accrued. It is not imperative that for right to accrue to have the award enforced under the old Act that some legal proceedings for its enforcement must be pending under that Act at the time new Act came into force.
6. If narrow meaning of the phrase "in relation to arbitral proceedings" is to be accepted, it is likely to create great deal of confusion with regard to the matters where award is made under the old Act. Provisions for the conduct of arbitral proceedings are vastly different in both the old and the New Act. Challenge of award can be with reference to the conduct of arbitral proceedings. An interpretation which leads to unjust and inconvenient results cannot be accepted.
7. A foreign award given after the commencement of the new Act can be enforced only under the new Act. There is no vested right to have the foreign award enforced under the Foreign Awards Act (Foreign Awards (Recognition and Enforcement) Act, 1961)."
Thereafter the Hon'ble Supreme Court had made the following observations:
"38. Section 85(2)(a) is the saving clause. It exempts the old Act from complete obliteration so far as pending arbitration proceedings are concerned. That would include saving of whole of the old Act until the time of the enforcement of the award. This S. 85(2)(a) prevents the accrued right under the old Act from being affected. Saving provision preserves the existing right accrued under the old Act. There is a presumption that Legislature does not intend to limit or take away vested rights unless the language clearly points to the contract. It is correct that the new Act is a remedial statute and, therefore, S. 85(2)(a) calls for strict construction, it being a repealing provision. But then as stated above were one interpretation would produce an unjust or an inconvenient result and another would not have those effects, there is then also a presumption in favor of the latter.
........
41. 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 that 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 parties 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., arbitrators and the parties that the award given should not fall foul of Ss. 30 and 32 of the old Act. Nobody at that time could have thought that S. 30 of the old Act could be substituted by S. 34 of the new Act. As a matter of fact appellant Thyssen in Civil Appeal No. 6036/98 itself understood that the old Act would apply when it approached the High Court under Ss. 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 new Act would apply and for that purpose filed an application for execution of the award. By that time limitation to set aside the award under the new Act had elapsed. Appellant itself led the respondent SAIL in believing that the old Act would apply. SAIL had filed objections to the award under S. 30 of the old Act after notice for filing of the award was received by it on the application filed by the Thyssen under Ss. 14 and 17 of the old Act. We have been informed that numerous such matters are pending all over the country where the award in similar circumstances is sought to be enforced or set aside under the provisions of the old Act. We, therefore, cannot adopt a construction which would lead to such anomalous situations where the party seeking to have the award set aside finds himself without any remedy. We are, therefore, of the opinion that it would be the provisions of the old Act that would apply to the enforcement of the award in the case of Civil Appeal No. 6036 of 1998. Any other construction on the S. 85(2)(a) would only lead to the confusion and hardship. This construction put by us is consistent with the wording of S. 85(2)(a) using the terms "provision" and "in relation to arbitral proceedings" which would mean that once the arbitral proceedings commenced under the old Act it would be the old Act which would apply for enforcing the award as well.
........
44. Parties can agree to the applicability of the new Act even before the new Act comes into force and when the old Act is still holding the field. There is nothing in the language of S. 85(2)(a) which bars the parties from so agreeing. There is, however, a bar that they cannot agree to the applicability of the old Act after the new Act has come into force when arbitral proceedings under the old Act have not commenced though the arbitral agreement was under the old Act. Arbitration clause in the contract in the case of Rani Constructions (Civil) Appeal 61 of 1999) uses the expression "for the time being in force" meaning thereby that provision of that Act would apply to the arbitration proceedings which will be in force at the relevant time when arbitration proceedings are held. We have been referred to two decisions one of Bombay High Court and the other of Madhya Pradesh High Court on the interpretation of the expression "for the time being in force" and we agree with them that the expression aforementioned not only refers to the law in force at the time the arbitration agreement was entered into but also to any law that may be in force for the conduct of arbitration proceedings, which would also include the enforcement of the award as well. Expression "unless otherwise agreed" as appearing in S. 85(2)(a) of the new Act would clearly apply in the case of Rani Construction 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 Construction that parties could anticipate that the new enactment may come into operation at the time the disputes arise. We have seen S. 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 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 be entered into only after the new Act had come into force. When the agreement uses the expressions "unless otherwise agreed" and "law in force" it does give option to the parties to agree that new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act comes into force and it cannot be said that agreement has to be entered into only after coming into force of the new Act."
7. On the other hand it has been contended by Mr. Bhatia, learned Senior counsel for Unibros, that the agreement between the parties was that the 1996 Act would apply to future disputes, predicated upon the Arbitration Clause contained in the contract between them. Arguably, it may be difficult to interpret a clause agreed upon in 1990, when the 1996 Act was not on the legislatures anvil, as contemplating and anticipating the provisions of the latter Act. Such an interpretation would certainly be possible when the proximity in time of the events is so close to each other as can reasonably indicate that the parties intended to be governed by the later statute. The relevant arbitration clause in the present dispute is reproduced below along with that in the case of M/s Rani Construction Pvt. Ltd.'s petition ( considered in Thyssen's case) juxtaposed with it.
MTNL Case
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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 there under and for the time being in force shall apply to the arbitration proceeding under this clause.
Rani Construction Case
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Subject to the provisions of the contract to the contrary as aforesaid, the provisions of the Indian Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to all arbitration proceedings under this clause.
8. On a reading of the Thyssen judgment it will be evident that the disputes that had arisen in the Rani Construction Case had been referred to arbitration on December 4, 1993 and the Award was published on February 23, 1996, i.e., after the 1996 Act had come into force. In this factual background the Apex Court held in the penultimate paragraph of its detailed and analytical judgment that the arbitration clause did admit of interpretation that the case was governed by the provisions of the 1996 Act. Keeping in perspective the fact that the arbitration clause in present case is in pari materia with that in Rani Construction, there is no alternative but to hold that immediately upon the promulgation of the 1996 Act, its provisions would govern not only the arbitral proceedings, but also the Court's verdict. The Thyssen case inter alia enunciates the proposition that the 1st and 2nd conclusions would hold good in those instances where the arbitration clause was silent on the applicability of the future modifications and enactments to the arbitral proceedings. The conclusion is that in the context of the present dispute it is the 1996 Act which has to be applied.
9. I shall now proceed to consider the argument on behalf of MTNL that it is open to parties to waive their rights and elect to proceed under the 1940 Act. In view of the interpretation imparted by the Apex court in Thyssen case (supra) to the arbitration clause found in the contract of Rani Construction Co., which is in pari materia with that in the present case, it is possible only to hold that the parties had agreed between themselves that the 1996 Act would apply to their arbitral proceedings. It must be recalled that there was a fresh appointment of the Arbitrator by the Orders dated 24.5.1999, at a stage in the arbitral proceedings where only an interim award had been given, and which was under challenge. The Court had specifically ordered a fresh adjudication, even though this was the foregone and inevitable reality since the proceedings up to that stage were before another person and in an inchoate state, and the impugned interim Award had been specifically clarified to be non existent. The Court had also ordered that the Bank Guarantee should be kept alive by the claimant. Does it mean that the arbitral proceedings before Shri K.D. Bali had started de novo and ab initio? Do the circumstances inexorably lead to the conclusion that the 1940 Act would regulate the arbitral proceedings thenceforward? In the 41st paragraph of the authoritative pronouncement of the Apex Court in Thyssen case (supra) it has been opined that the provisions of the old Act would continue to apply for the enforcement of the Award in Thyssen litigation even though the Award was published in September 1997, because an accrued right had evolved since arbitral proceedings had commenced under the 1940 Act. These observations may cause some confusion, which would be dispelled on the realization that the Thyssen arbitration clause was dissimilar to the other clauses inasmuch as it was sans consensus that the law as modified or enacted in the future would regulate the arbitral proceedings. This position would prevail unaltered despite possible divergence in the perceptions of the respective parties as per the reliance on the principles of estoppel, acquiescence, waiver and the like. It would prevail even on a perusal of the impugned Award itself, in which the Arbitrator has repeatedly referred to the previous arbitral proceedings in the recitals of the Award thus indicating a continuity with the arbitral proceedings preceding the Orders dated 24.5.1999. These recitals are indicative of the position that Shri K.D. Bali had continued the proceedings from the stage of the passing of the interim award. Arguments raised after the event must be viewed with circumspection since they will invariably be tailored and fashioned according to the convenience and suitability of the party concerned. There is thus no alternative after Thyssen but to hold that despite the proceedings culminating in the impugned Award of Shri K.D. Bali ( pronounced on December 29, 2000) having started in 1991 under the 1940 Act, it is the 1996 statute which will be attracted. The legal wrangle between the parties on this issue is because under the 1940 Act the width amplitude of challenges to the Award is much wider than under the 1996 Act.
10. In the third appeal before the Apex Court, namely the Western Shipbreaking Corporation dispute, the Hon'ble Supreme Court came to the conclusion that "if the provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign award are juxtaposed there would appear to be hardly any difference." As in Thyssen and in contradistinction to Rani Construction, the arbitration clause in Western Shipbreaking does not contemplate the application of the modified or new enactment. The Apex Court therefore held that the Award which was made in London in February, 1996 would be governed by the 1996 Act.
11. This distinction between the two statutes may however be illusionary, in view of the judgment of the Hon'ble Supreme Court inter alia defining the term 'public policy' employed in Section 34 of the 1996 Act. The regime established in respect of the 1940 Act appears to have been restored in large measure by the following pronouncements of the Apex Court in Civil Appeal No. 7419 of 2001 entitled Oil & Natural Gas Corporation Ltd. vs. SAW Pipes Ltd. decided on 17th April, 2003:--
"In the result, it is held that :--
A. (1) The Court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that:--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
(2) The Court may set aside the award:--
(i) (a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties,
(b) failing such agreement, the composition of the arbitral tribunal was not in accordance with Part-I of the Act.
(ii) if the arbitral procedure was not in accordance with :--
(a) the agreement of the parties, or
(b) failing such agreement, the arbitral procedure was not in accordance with Part-I of the Act.
However, exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part-I of the Act from which parties cannot derogate.
(c) If the award passed by the arbitral tribunal is in contravention of provisions of the Act or any other substantive law governing the parties or is against the terms of the contract.
(3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to:--
(a) fundamental policy of Indian law;(b) the interest of India; or
(c) justice or morality, or
(d) if it is patently illegal (4) It could be challenged:--
(a) as provided under Section 13(5); and
(b) Section 16(6) of the Act."
12. Keeping the pronouncements of the Apex court in perspective, there is no scope for consideration of the contentions of the waiver, acquiescence, estoppel and or election of the parties. It seems to me to be a futile exercise to deal with the proposition that even a mandatory provision of law can be waived by consent of parties, as argued by Mr. Vaidyanathan on the strength of Commissioner of Customs, Mumbai Vs. Virgo Steels, Bombay and Another . I am also of the opinion that it is not necessary to answer Mr. Bhatia's contention that any modification to a written term must itself be in writing, although the exception envisioned by the Apex Court in Bai Hira Devi and Others vs. The Official Assignee of Bombay, 1958 SCR 1384 may indicate to the contrary.
13. Mr. Vaidyanathan had drawn attention to various provisions of the 1940 Act to emphasise his contention that the Orders dated 24.5.1999 could only have been passed on the invocation of the 1940 Act. He placed reliance on Section 15 which empowered the Court to modify an award; Section 16 to remit it; Section 17 to decree it; and Section 19 to supercede the arbitration. It has also been contended that parties can opt for the 1940 Act, but this is contrary to the Thyssen ratio. It has also been argued that a fresh Reference could not have been made by Dalveer Bhandari, J. under the 1996 Act. I do not propose to delve into these arguments for the simple reason that the Order dated 24.5.1999 has become final; in fact it has not even been assailed in the Objections.
14. The effect of this discussion is that in view of the arbitration clause contained in the compact between the present parties, the 1996 Act regulated all proceedings after its promulgation. The petition bearing No. 266A of 2001, filed under Sections 14 to 17 of the Indian Arbitration Act 1940 for the issuance of directions to the arbitrator to file his Award dated 29.12.2000 along with the entire proceedings, is misconceived. It is not maintainable in law and is dismissed. The Arbitration and Conciliation Act 1996 alone applies to the dispute.
IA No. 3170/2002
15. These Objections have been filed in Suit No. 266A of 2001 on 5.9.2001 praying therein that the Award dated 29.12.2000 may be set aside/quashed on the ground set forth in Sections 30(a) and (c) read with Section 33 of the Arbitration Act 1940. Notice of this application was ordered to issue for the first time on 9.7.2002. On 24.7.2002 learned counsel for Unibros had stated that no Reply thereto was intended to be filed. It has already been held that this statute has no further applicability to the disputes between the parties. Does this mean that the Objections have to be dismissed on this precise premise, leaving the Objector without remedy. I prefer to eschew a narrow and pedantic approach in favor of a holistic treatment of these Objections which, in essence, assail the Award dated 29.12.2000. As envisaged in the 1996 Act such Objections can be filed under Section 34 and in order to ensure substantial justice I shall treat the application as having been moved under this statutory provision. The Registry is directed to place this application in the file of execution proceedings viz. Ex. No. 163 of 2001. Thereafter Suit No. 266A/2001 be consigned to the records.