D. K. JAIN, J. ( 1 ) BY this application under Section 47 (1) read with Section 151 of the Code of Civil Procedure, 1908, M/s. National Building Construction Corporation Limited (for short nbcc ) prays for recall of order dated 9 April 2002, whereby the suit registered on the filing of award, dated 19 June 2000, by the sole arbitrator, namely, Mr. V. D. Tiwari, was disposed of. Relying on the decision of this Court in Atree Associates Vs. DDA and Another 2001 (60) DRJ 663 it was directed that since at the time of pronouncement of the award by the arbitrator, provisions of Arbitration and Conciliation Act, 1996 ( the new Act for short) had come into operation, the award could not be registered as a regular suit in the arbitration proceedings. ( 2 ) BRIEFLY stated the facts, giving rise to the application are as follows: DISPUTES and differences having arisen between the NBCC and the petitioner/claimant, the same were referred to Shri V. D. Tiwari on 2 November 1994 for arbitration in terms of Clause 20 of the arbitration agreement between the parties; the arbitrator entered upon the reference on 17 December 1994 and, after seeking extension of time for making and publishing the award from time to time, finally up to 25 July 2000, made and published the award on 19 June 2000, by which time, on 25 January 1996, the new Act came into force. The award, in original, dated 19 June 2000, was filed by the arbitrator in this Court on 12 July 2000. A suit number was assigned to the award. When the suit came up for further orders, the aforementioned order was passed. As noted above, this order is the subject matter of this application. ( 3 ) DESPITE various opportunities, no reply to the application has been filed on behalf of the petitioner/claimant. At the time of hearing, they remain unrepresented as well. Accordingly I have heard Ms. Poonam, learned counsel for the NBCC. As noted above, this order is the subject matter of this application. ( 3 ) DESPITE various opportunities, no reply to the application has been filed on behalf of the petitioner/claimant. At the time of hearing, they remain unrepresented as well. Accordingly I have heard Ms. Poonam, learned counsel for the NBCC. ( 4 ) LEARNED counsel for the NBCC has pleaded that since the arbitral proceedings had commenced prior to the coming into force of the new Act; the parties had proceeded with the said proceedings under the Arbitration Act, 1940 ( the old Act for short); there was no agreement before the Arbitrator that the new Act would be applicable, the award is enforceable only under the old Act. In support of the proposition that the claimant was also proceeding under the belief that old Act was to apply for enforcement of the award, reference is made to a letter dated 7 July 2000, addressed by the claimant to the arbitrator, requesting him to file the original award along with the documents in Court in terms of Section 14 (2) of the old Act. Placing strong reliance on the decision of the Supreme Court in Thyssen Stahlunion GMBH Vs. Steel Authority of India Ltd. AIR 1999 SC 3923 : 1999 (9) SCC 334 , learned counsel has urged that since the arbitration agreement between the parties did not permit applicability of any other Act except the old Act, the ratio of the decision of this Court in Atree Associates (supra) was wrongly applied on the facts of the present case. It is pointed out that the arbitration agreement between the parties in Atree s case clearly stipulated that the provisions of Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder, for the time being in force, shall apply to the arbitration proceedings, which is not the case here. In the instant case, in Clause 20 of the arbitration agreement there is no stipulation in regard to the applicability of a particular Statute, and it merely provides that in the event of any dispute arising out of any of the conditions of this contract the matter shall be referred to the sole arbitration of an Engineer of the Corporation, whose decision shall be final and binding on both the parties. It is, thus, asserted that order dated 9 April 2002 deserves to be reviewed. ( 5 ) THUS, the short question for consideration in the case is whether the award would be governed by the new Act for its enforcement or whether the provisions of the old Act would apply ? ( 6 ) HAVING considered the matter in the light of the arbitration agreement between the parties; the documents placed on record, in particular claimant s letter dated 7 October 1999, whereby they had, during the course of arbitration proceedings, requested the NBCC to agree to follow the new Act but did not pursue the same and, their letter dated 7 July 2000, asking the Arbitrator to file the original award in terms of Section 14 (2) of the old Act, I find substance in the stand of the NBCC. From the material available on record it is clear that when the arbitral proceedings commenced, both the parties proceeded on the basis that the provisions of the old Act would apply and the award shall also be given by the arbitrator under the old Act. The conduct of the parties to the agreement, briefly projected above, before, during or after the conclusion of the arbitral proceedings, leaves little scope for doubt that at no point of time, there was any agreement between them to act under the new Act. That being the position, in the light of the decision of the Apex Court in Thyssen Stahlunion case (supra) (para-22 of the SCC), provisions of the old Act would apply for enforcement of the award dated 19 June 2000 and, therefore, the decision in the Atree s case (supra) was not applicable on facts in hand. Consequently, for the foregoing reasons, order dated 9 April 2002 is recalled and the suit is restored to its original position. The application stands disposed of. Suit No. 2253-A/2000 let the suit be now listed before the regular Court on 12 May 2004, for further proceedings. --- *** --- .