JUDGMENT : M. Venkateswara Reddy, J. - This civil miscellaneous appeal is directed against the order dated 15-04-2003, made by the learned Chief Judge, City Civil Court, Hyderabad in O.P.No.133 of 2000, on his file. Respondent No. 1 therein is the appellant herein. 2. The matter arises under the Arbitration Act. A petition was filed by A.P. Power Generation Corporation Limited (formerly APSEB) and the officials before the learned Chief Judge under Section 34 of the Arbitration Act, 1996 (New Act) seeking setting aside of the Award dated 25-10-1999 of the Arbitrator, in respect of the work relating to Vijayawada Thermal Power Station, Stage-II design, fabrication and erection of structural steel of Units 3 and 4 of 210 M.W. at Ibrahimpatnam, Krishna District. The learned Chief Judge allowed the petition and set aside the Award. Hence, the appeal by the contractor M/s. Standard Industrial Engineering Company. 3. Respondent Nos. 2 to 4 in the appeal ire no other than the officials of A.P. Power Generation Corporation Limited (Respondent No.1 herein). Therefore, all of them can be referred to as 'Corporation'. Respondent No.5 in the appeal is Arbitrator. The appellant can be referred to as 'Engineering Company/Contractor', for the purpose of convenience. 4. The facts that led to the filing of the appeal can be stated as under: The work mentioned supra was covered by a valid contract between the parties. The contract contained an arbitral clause. The Engineering Company filed a suit before the learned II-Senior Civil Judge, City Civil Court, Hyderabad under Section 20 of the Arbitration Act, 1940 (old Act) in O.S.No.1271 of 1993. The said suit was decreed on 06-08-1998, directing the Corporation to file the original agreement bearing No.24/84-85, dated 23-01-1985 into Court and appointing one Sri Padmanabha Goud, retired District and Sessions Judge, as the sole Arbitrator to adjudicate all the disputes between the parties in respect of the above said agreement. He was directed to enter upon the reference within one month from the date of receipt of record and pass Award within four months. As against the orders made by the learned Senior Civil Judge, the Corporation filed an appeal in A.A.O.No. 2906 of 1998. The said appeal was dismissed by this Court on 08-03-1999. Later it came up for being mentioned on a subsequent date, which date is not mentioned in the copy available on record. As against the orders made by the learned Senior Civil Judge, the Corporation filed an appeal in A.A.O.No. 2906 of 1998. The said appeal was dismissed by this Court on 08-03-1999. Later it came up for being mentioned on a subsequent date, which date is not mentioned in the copy available on record. Certain clarification was made on that day. However, the date on which it appeared in the cause list for, for being mentioned is not material for our purpose. It is not known whether during the pendency of the appeal there was stay. However, we could notice from the record that both parties filed a joint memo dated 16-07-1999 stating that both parties mutually agreed to extend time to the Arbitrator for a period of eight months from 10-03-1999 to pass the award. We presume that the dismissal of the appeal by the High Court necessitated granting of time to the Arbitrator and the parties thereby extended the time by eight months. This date is 10-03-1999 from which date the time was extended is proximate to the date of dismissal of the A AO by the High Court on 08-03-1999 thereby it can be inferred that the AAO came up for being mentioned in between 08-03-1999 and 10-03-1999 and after disposal of the appeal both parties agreed for granting eight months time to the Arbitrator for passing the award. The extended eight months time ended on 09-11-1999 while so the award was passed on 25-10-1999 well within the time extended by both parties. Therefore, it cannot be said that the award was passed beyond time. 5. The Arbitrator entered the reference on 04-09-1998. Proceedings were conducted under the old Act by the Arbitrator. While so, a memo dated 16-07-1999 was filed on behalf of the Engineering Company, requesting him to pass Award under the New Act. A notice was ordered on the said memo to the Corporation. Its junior counsel made an endorsement thereon as 'seen'. Thereupon, the learned Arbitrator had chosen to pass the Award under the New Act. The New Act i.e., The Arbitration and Conciliation Act, 1996, came into force on 26-01-1996. The learned Arbitrator put the date 25-10-1999', as the date of pronouncement of Award beneath his signature on the last page of the Award, but the stamp papers were purchased in his name on 28-10-1999. 6. The New Act i.e., The Arbitration and Conciliation Act, 1996, came into force on 26-01-1996. The learned Arbitrator put the date 25-10-1999', as the date of pronouncement of Award beneath his signature on the last page of the Award, but the stamp papers were purchased in his name on 28-10-1999. 6. On the above facts and on the basis of arguments advanced before him, the following two points were framed by the learned Chief Judge, as under: (1) Whether the appointment of Arbitrator is under the Old Act or New Act? (2) Whether the Award was passed on 25-10-1999 or subsequently? 7. The learned Chief Judge on the first point held that the Arbitrator was appointed under the Old Act and on the second point he held that the impugned award must be deemed to have been passed on 28-10-1999 i.e., the date of purchase of the stamps or thereafter. Accordingly, he allowed the petition and set aside the award. Hence, the appeal. 8. In this appeal, it is contended on behalf of the Engineering Company that the above findings of the learned Chief Judge are not correct while the learned counsel for the respondent defends the order of the trial Court. 9. A reference to Section 85 of the New Arbitration Act is necessary, which runs as under: "85. Repeal and saving (1) Arbitration (Protocol and Convention) Act, 1937, the Arbitration Act, 1940 and the Foreign Awards (Recognition and Enforcement) Act, 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; (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act. 10. From a reading of sub-section (2), it is clear that the provisions of the Old Act shall apply in relation to arbitral proceedings that commenced before 26-01-1996, but liberty is given to the parties to opt for the applicability of the New Act under an agreement. The New Act applies in relation to arbitral proceedings, which commenced on or after 26-01-1996. The New Act applies in relation to arbitral proceedings, which commenced on or after 26-01-1996. Therefore, the questions that arise in this case are: (1) Whether the arbitral proceedings commenced prior to 26-01-1996 or thereafter; (2) Whether both parties opted for application of the New Act by agreement or consent? Point No.1: 11. Admittedly, the suit under Section 20 of the Arbitration Act was instituted in the year 1993. The appointment of arbitrator was made on 06-08-98. Thus, the suit was instituted prior to the commencement of the New Act, but appointment was made after the commencement of the New Act. It is noted in the impugned order that the learned arbitrator entered upon arbitration on 04-09-1998 by giving notice to both parties and this is not disputed by either side. 12. The contention of the learned counsel for the appellant is that the arbitral proceedings commenced after 26-01-1996. The answer to the first point again depends on the question whether for the purpose of interpretation of Section 85 (2) (a) of the New Act, recourse can be had to Section 21 of the New Act. 13. We are concerned with the expression 'arbitral proceedings which commenced before this Act', employed in Section 85 of the New Act. For our convenience, this expression can be rewritten as 'commencement of arbitral proceedings' for the same expression is employed in Section 21. The Section runs as under: - Commencement of arbitral proceedings:-Unless otherwise agreed by the parties the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. 14. A learned single Judge of this Court in Marshall Corporation Ltd., v. Union of India, 1997 (5) ALT 421 took the view that Section 21 of the New Act can be considered only with reference to the actions that may arise under the New Act and, therefore, no support can be derived from the provisions of that Section while reading Section 85 (2) (a) of the New Act to claim applicability of the Old Act. The learned Judge held as under: "It is clear from the above said provisions of Section 85 (2) that the provisions of the Old Arbitration (sic. The learned Judge held as under: "It is clear from the above said provisions of Section 85 (2) that the provisions of the Old Arbitration (sic. Act) shall continue to apply in relation to arbitral proceedings which commenced before the New Act came into force unless otherwise agreed upon between the parties, and the New Act will, however, apply in relation to arbitral proceedings which commenced on or after the New Act came into force. Section 21 of the New Arbitration Act provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. In view of such provisions of Section 21 r/w Section 85 (2) of the New Arbitration Act, the learned counsel for the respondents tries to contend that the arbitration proceedings in the present case shall be deemed to have commenced in the year 1992 and 1993, as the case may be, when a request made by the applicant was served on the respondents seeking appointment of an arbitrator and as such the Old Act alone applies to the present case. But this argument is quite untenable and cannot be accepted. The earliest notices issued by the petitioner to the respondents requesting them to appoint the arbitrator were not after the commencement of the New Arbitration Act but only when the Old Arbitration Act was in force. Section 21 of the New Act can be considered only with reference to the actions that may arise under the New Act. But regarding the question as to what stage the arbitral proceedings under the Old Act had commenced, no reference can be made and no support can be derived from the provisions of Section 21 r/w Section 85 (2) of the New Arbitration Act. The same view was expressed by a single Judge of this Court in a recent decision reported in Y.Parthasarathy Firm v. General Manager, Railway Electrification, (1997) (2) ALT 307 (2 infra)) after referring to the decisions of the Supreme Court and Kerala High Court. 13. The same view was expressed by a single Judge of this Court in a recent decision reported in Y.Parthasarathy Firm v. General Manager, Railway Electrification, (1997) (2) ALT 307 (2 infra)) after referring to the decisions of the Supreme Court and Kerala High Court. 13. In the decision of the Supreme Court reported in Secretary, Government of Orissa v. Sarbeswar Rout, ( AIR 1989 SC 2259 (3 infra)) while dealing with the question as to when it can be said that arbitral proceedings can be said to have commenced, it is observed by their Lordships: "As soon as the arbitrator indicates his willingness to act as such, the proceeding must be held to have commenced." In the decision of the Kerala High Court reported in Baby Paul v. Hindustan Paper Corporation, (AIR 1978 Kerala 223) dealing with a similar question, it was observed: "for arbitration begins and arbitration proceedings commence only on the arbitrator getting an authority to act. The arbitrator's authority to act arises by actual submission of particular dispute or disputes to the authority of a particular arbitrator by the parties, or by one of the parties to an arbitration agreement requesting the arbitrator appointed by the arbitration agreement itself or subsequent thereto to enter upon the reference in respect of particular dispute or disputes or by the Court making an order of reference to the arbitrator as contemplated by Section 20 of the Act or where the Court by order refers the matter or matters in difference to the arbitrator as provided for in Chapter IV of the Act." In the present case, in spite of the request made by the applicant when the Old Act was in force, the respondents failed to appoint the arbitrator and as such, the question of the arbitrator indicating his willingness to function as such arbitrator did not arise when the Old Act was in. force and the arbitral proceedings, cannot, therefore, be said to have commenced when the Old Act was in force. Therefore, the New Arbitration Act alone is applicable to the present cases and the applications filed under the New Arbitration Act are maintainable." It may be noted that the learned Judge while coming to the above conclusion relied upon an earlier decision of this court in Y. Parthasarathy Firm v. General Manager, Rly. Therefore, the New Arbitration Act alone is applicable to the present cases and the applications filed under the New Arbitration Act are maintainable." It may be noted that the learned Judge while coming to the above conclusion relied upon an earlier decision of this court in Y. Parthasarathy Firm v. General Manager, Rly. Electrification, 1997 (1) ALT 307 which in turn relied upon the decision of the Apex Court in Secretary, Government of Orissa v. Sarbeswar Rout, AIR 1989 SC 2259 and the Kerala High Court in Baby Paul v. Hindustan Paper Corporation, AIR 1978 Kerala 223. 15. We had the advantage of going through Sarbeswar Rout's case (3 supra) in detail. It was a case where a three-judge Bench of the Apex Court was concerned with the question as to the award of pendente lite interest in arbitral proceedings. Therefore, the question was as to when the arbitration proceedings before the arbitrator could be said to have commenced in that case. For profit of appreciation and understanding, we quote here para 8 from that judgment: "So far an action in a Court of law is concerned, it must be held that it commences on the filing of a proper claim in accordance with the prescribed procedure before the authority empowered to receive the same. If a plaint, drawn up in accordance with the prescribed law, is filed before a Civil Court, the suit must be deemed to have been instituted on that date, and not on a later date when the Court takes up the plaint and applies its mind. Ordinarily the plaint is examined by the stamp reporter of the Court who scrutinizes whether proper court-fee has been paid or not, and then makes a report. The Court generally takes up the plaint only later. Similar is the position with respect to other applications and memoranda of appeals. It must, therefore, be held that the proceeding is instituted when the claimant files his claim. We do not see any reason to apply a different approach in the case of an arbitration proceeding. As soon, as the arbitrator indicates his willingness to act as such, the proceeding must be held to have commenced. It must, therefore, be held that the proceeding is instituted when the claimant files his claim. We do not see any reason to apply a different approach in the case of an arbitration proceeding. As soon, as the arbitrator indicates his willingness to act as such, the proceeding must be held to have commenced. This aspect did not arise for decision in the cases Executive Engineer (Irrigation) v. Abhaduta Jena, (1988) 1 SCC 418 : ( AIR 1988 SC 1520 ) or Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532 : ( AIR 1989 SC 973 ) and no assistance from them can be taken in the present appeal. The learned Counsel for the appellant is, therefore, right in saying that the arbitrator in the present case, by directing on 20-04-1982 the parties to file their statements of claim, clearly indicated that he accepted the offer to arbitrate." The question that was dealt with by their Lordships of the Supreme Court was when the proceedings before an arbitrator shall be said to have commenced. There is no provision available in the Old Act corresponding to the provisions of Section 21. Therefore, the learned Judge in Marshall Corporation Ltd case (1 supra) followed the earlier ruling of this Court in Y. Parthasarathy's case (2 cited supra) which drew sustenance from the above decision of the Apex Court in coming to the conclusion that Section 21 cannot be made applicable while interpreting the expression "commencement of arbitral proceedings" obtaining in Section 85. 16. The Old Act of 1940 deals with arbitration without intervention of the Court in Chapter 2 and arbitration with intervention of the Court where there is no suit pending in Chapter 3. Chapter 4 deals with arbitration in suits. Section 20 deals with application by either party before the Court seeking filing of the arbitration agreement and order of reference by the Court. In the case on hand also, the suit was filed under Section 20 of the Old Act. It is also a proceeding under the Arbitration Act. All these proceedings are under the Arbitration Act only. The commencement of arbitration proceedings before the arbitrator connotes the proceedings, after the matter is seized by him. The Apex Court in Sarbeswar Rout's case (3 supra) was concerned with that question. The context here is different. It is also a proceeding under the Arbitration Act. All these proceedings are under the Arbitration Act only. The commencement of arbitration proceedings before the arbitrator connotes the proceedings, after the matter is seized by him. The Apex Court in Sarbeswar Rout's case (3 supra) was concerned with that question. The context here is different. The Apex Court while interpreting the words "commencement of arbitral proceedings' in Section 85 (2) took the view that it must be read with Section 21 of the new Act. 17. In Shetty's Constructions Co. Pvt. Ltd. v. Konkan Railway Construction and another (5) (1998) 5 SCC 599 , the Apex Court held: "The question, therefore, arises whether on that date the arbitration proceedings in the present four suits had commenced or not. For resolving this controversy we may turn to Section 21 of the new Act which lays down that unless otherwise agreed to between the parties, the arbitration suit in respect of arbitration dispute commenced on the date on which the request for referring the dispute for arbitration is received by the respondents. Therefore, it must be found out whether the requests by the petitioner for referring the disputes for arbitration were moved for consideration of the respondents on and after 26-1-1996 or prior thereto. If such requests were made prior to that date-then on a conjoint reading of Section 21 and Section 85 (2) (a) of the new Act, it must be held that these proceedings will be governed by the old Act. As seen from the afore noted factual matrix, it at once becomes obvious that the demand for referring the disputes for arbitration was made by the petitioners in all these cases months before 26-1-1996 in March and April 1995 and in fact thereafter all the four arbitration suits were filed on 24-08-1995. These suits were obviously filed prior to 26-01-1996 and hence they had to be decided under the old Act of 1940. This preliminary objection, therefore, is answered by holding that these four suits will be governed by the Arbitration Act, 1940 and that is how the High Court in the impugned judgments has impliedly treated them." It can be seen that the Apex Court held that Section 85 (2) shall be read with Section 21 of the New Act. This preliminary objection, therefore, is answered by holding that these four suits will be governed by the Arbitration Act, 1940 and that is how the High Court in the impugned judgments has impliedly treated them." It can be seen that the Apex Court held that Section 85 (2) shall be read with Section 21 of the New Act. In the above case, series of demands were made by the contractor writing letters to the opposite side demanding appointment of arbitrator. Then the contractor filed a suit under Section 8 read with Section 20 of the Arbitration Act, 1940. Section 20 of the Old Act deals with Arbitration with the intervention of the Court. 18. The question as to the applicability of the Old and New Acts was extensively discussed by the Apex Court in a subsequent decision in Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., (1999) 9 SCC 334 , with reference to a catena of decisions. The conclusions arrived at by the Court are as under: "1. The provisions 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 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. 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)." Then, dealing with Section 85 (2) (a), their lordships held as under: 23. Section 85 (2) (a) of the new Act is in two limbs: (1) provisions of the old Act shall apply in relation to arbitral proceedings which commenced before the new Act came into force unless otherwise agreed by the parties and (2) the new Act shall apply in relation to arbitral proceeding which commenced on or after the new Act came into force. The first limb can further be bifurcated into two: (a) provisions of the old Act shall apply in relation to arbitral proceedings commenced before the new Act came into force and (b) the old Act will not apply in such cases where the parties agree that it will not apply in relation to arbitral proceedings which commenced before the new Act came into force. The expression 'in relation to' is of the widest import as held by various decisions of this Court in Doypack Systems (P) Ltd., Mansukhlal Dhanraj Jain, Dhanarajamal Gobindram and Navin Chemicals Mfg. The expression 'in relation to' is of the widest import as held by various decisions of this Court in Doypack Systems (P) Ltd., Mansukhlal Dhanraj Jain, Dhanarajamal Gobindram and Navin Chemicals Mfg. This expression "in relation to" has to be given full effect to particularly when read in conjunction with the words "the provisions" of the old Act. That would mean that the old Act will apply to the whole gambit of arbitration culminating in the enforcement of the award. If it was not so, only the word "to" could have sufficed and when the legislature has used the expression "in relation to", a proper meaning has to be given. This expression does not admit of restrictive meaning. The first limb of Section 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." xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx 28. 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 up till the time of the enforcement- of the award. This (sic. Thus) Section 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 the legislature does not intend to limit or take away vested rights unless the language clearly points to the contrary. It is correct that the new Act is a remedial statute and, therefore, Section 85 (2) (a) calls for a strict construction, it being a repealing provision. But then as stated above where one interpretation would produce an unjust or an inconvenient result and another would not have those effects, there is then also a presumption in favour of the latter." 19. In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356 while interlinking the provisions of Section 85 (2) (a) and Section 21 of the New Act, the Court held as under: "The provisions of Section 85 (2) (a) insofar these apply to the Foreign Awards Act and the 1937 Act, would appear to be quite superfluous. A literal interpretation would render Section 85 (2) (a) unworkable. A literal interpretation would render Section 85 (2) (a) unworkable. Section 85 (2) (a) provides for a dividing line dependent on 'commencement of arbitral proceedings' which expression would necessarily refer to Section 21 of the new Act. This Court has relied on this Section as to when arbitral proceedings commence in the case of Shetty's Constructions Co. (P) Ltd. v. Konkan Rly. Construction. Section 2 (2) read with Section 2 (7) and Section 21 falling in Part 1 of the new Act made it clear that these provisions would apply when the place of arbitration is in India i.e., only in domestic proceedings. There is no correspondent provision anywhere in the new Act with reference to foreign arbitral proceedings to hold as to what is to be treated as 'date of commencement' in those foreign proceedings. We would, therefore, hold that on a proper construction of Section 85 (2) (a) the provision of this sub-section must be confined to the old Act only." 20. The Apex Court Milk Food Ltd. v. GMC Ice Cream (P) Ltd., (2004) 7 SCC 288 held per majority: where an arbitrator was appointed without the intervention of the Court, proceedings commences from the date of service of notice by one party on another requiring appointment of an arbitrator. It has clearly distinguished the two concepts "commencement of arbitration proceedings" and "commencement of proceedings before an arbitrator", as under: 45. "Commencement of an arbitration proceeding" and "commencement of a proceeding before an arbitrator" are two different expressions and carry different expressions and carry different meanings. 46. A notice of arbitration or the commencement of an arbitration may not bear the same meaning, as different dates may be specified for commencement of arbitration for different purposes. What matters is the context in which the expressions are used. A notice of arbitration is the first essential step towards the making of a default appointment in terms of Chapter II of the Arbitration Act, 1940. Although at that point of time, no person or group of persons was charged with any authority to determine the matters in dispute, it may not be necessary for us to consider the practical sense of the term as the said expression has been used for a certain purpose including the purpose of following statutory procedures required therefor. Although at that point of time, no person or group of persons was charged with any authority to determine the matters in dispute, it may not be necessary for us to consider the practical sense of the term as the said expression has been used for a certain purpose including the purpose of following statutory procedures required therefor. If the provisions of the 1940 Act apply, the procedure for appointment of an arbitrator would be different than the procedure required to be followed under the 1996 Act. Having regard to the provisions contained in Section 21 of the 1996 Act as also the common-parlance meaning given to the expression "commencement of an arbitration" which, admittedly, for certain purpose starts with a notice of arbitration, is required to be interpreted which would be determinative as regards the procedure under the one Act or the other required to be followed It is only in that limited sense the expression "commencement of an arbitration" qua "a notice of arbitration" assumes significance." 21. Then while dealing with Section 21 vis-a-vis Section 85 (2) (a) of the 1996 Act and the importance of the expression "commencement of the arbitration proceedings" employed in Section 85 of the New Act, the Court held as under:- 48. "Sub-section 1 of Section 85 of the 1996 Act repealed the 1940 Act (10 of 1940). Sub-section (2), however, notwithstanding such repeal makes the 1940 Act applicable in relation to arbitral proceedings which commenced before the said Act came into force. 49. Section 21 of the 1996 Act, as noticed hereinbefore, provides as to when the arbitral proceedings would be deemed to have commenced. Section 21 although may be construed to be laying down a provision for the purpose of the said Act but the same must be given its full effect having regard to the fact that the repeal and saving clause is also contained therein. Section 21 of the Act must, therefore, be construed having regard to Section 85 (2) (a) of the 1996 Act. Once it is so construed, indisputably the service of notice and/or issuance of request for appointment of an arbitrator in terms of the arbitration agreement must be held to be determinative of the commencement of the arbitral proceeding". Section 21 of the Act must, therefore, be construed having regard to Section 85 (2) (a) of the 1996 Act. Once it is so construed, indisputably the service of notice and/or issuance of request for appointment of an arbitrator in terms of the arbitration agreement must be held to be determinative of the commencement of the arbitral proceeding". The Court clearly held that Section 21 must be taken recourse to for the purpose of interpretation of Section 85 (2) (a) of the Act in the following words: .......... the decisions of this Court operating in the field beginning from Shetty's Constructions 14 are ad idem to the effect that Section 21 must be taken recourse to for the purpose of interpretation of Section 85 (2) (a) of the Act. There is no reason, even if two views arc possible, to make a departure from the decisions of this Court as referred to hereinbefore." 22. We have noted that this case (Milkfood Ltd (8 supra)) dealt with a case where the arbitrator is appointed without intervention of the Court and held that the proceeding commences from the date of service of notice by one party to another requiring appointment of an arbitrator. 23. We could pick up a decision of the Apex Court rendered in U.P. State Sugar Corporation Ltd. v. Jain Construction Co. and another, (2004) 7 SCC 332 : 2004 (6) ALT 17 .3, 18.1 (DN SC) which dealt with the question of commencement of proceedings at the intervention of the Court. The relevant para which- is self-explanatory runs as under:- 9. The only question which survives for consideration is the applicability of the 1996 Act to the facts of the present case. Disputes and differences between the parties arose in the year 1991. The respondent filed an application under Section 20 of the 1940 Act on 1-5-1991. It invoked the arbitration agreement as contained in clause 34 of the contract. The arbitral proceeding was, therefore, set in motion. In terms of Section 21 of the 1996 Act, the arbitral proceedings in respect of a particular dispute commences on a date on which the request for that dispute to be referred to arbitration was received by the respondent. 10. Section 85 (2) (a) of the 1996 Act reads thus: "85. The arbitral proceeding was, therefore, set in motion. In terms of Section 21 of the 1996 Act, the arbitral proceedings in respect of a particular dispute commences on a date on which the request for that dispute to be referred to arbitration was received by the respondent. 10. Section 85 (2) (a) of the 1996 Act reads thus: "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; (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act." 11. This Court in Milkfood Ltd. v. GMC Ice Cream (P) Ltd., (8 supra) relying on or on the basis of Shetty's Constructions Co. (P) Ltd. v. Konkan Rly. Construction, (5 supra). Thyssen Stahlunion DMDII v. Steel Authority of India Ltd., (6 supra), Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (7 supra) and State of W.B. v. Amritlal Chatterjee (supra) held that in respect of the arbitral proceedings commenced before coming into force of the 1996 Act, the provisions of the 1940 Act shall apply. 12. In view of the aforementioned pronouncements of this Court, the impugned judgment cannot be sustained. It is set aside accordingly. The matter is remitted to the High Court for consideration of the merit of the matter afresh. 24. In the case on hand also, the suit under Section 20 of the Act was filed prior to the commencement of the new Act. 25. It is set aside accordingly. The matter is remitted to the High Court for consideration of the merit of the matter afresh. 24. In the case on hand also, the suit under Section 20 of the Act was filed prior to the commencement of the new Act. 25. From the conspectus of above cases, the following conclusions can be drawn: (1) the provisions of Section 85 (2) (a) of the New Act shall be read in conjunction with the provisions of Section 21 for interpreting the words "arbitral proceedings which commenced before this Act" (commencement of arbitral proceedings); (2) that commencement of the arbitral proceedings and commencement of (lie proceedings before an arbitrator are two different expressions and carry different meanings. Commencement of proceedings before an arbitrator cannot be treated as a synonym of the expression "commencement of arbitration proceedings". 26. In that view of the matter, the decisions of this Court rendered in Marshall Corporation Ltd., case (I supra) and Parthasarathy's case (2 supra) do not stand in the field; (3) An arbitration proceeding commences with reference to Section 85 (2) (a) of the New Act when a notice for appointment of an arbitrator is given by one party to the other, in case of arbitration without intervention of Court and when an application is filed under Section 20, in the case of arbitration with intervention of the Court where there is no suit pending. In the teeth of the above decisions, which are clear on the point, it must be held that the arbitral proceedings in the case on hand were commenced prior to the commencement of the New Act. Thus, it must be held that the arbitration proceedings commenced prior to 26-01-1996. Point No.1 is answered accordingly. Point No.2: 27. In this case, the arbitrator was appointed under the Old Act. Thereafter, both parties allowed the arbitrator to proceed under the provisions of the Old Act. Thereafter on 16-07-1999, a memo by the Engineering Company in which a junior counsel of the Corporation wrote the word 'seen' was filed before the Arbitrator. Therefore, the arbitrator acted 1 upon it and passed the award under the 1 New Act. The contention advanced before the lower Court is that the endorsement 'seen' cannot be considered as consent. On the said point, the learned Chief Judge held as under: "There is no order of the Arbitrator on the memo. Therefore, the arbitrator acted 1 upon it and passed the award under the 1 New Act. The contention advanced before the lower Court is that the endorsement 'seen' cannot be considered as consent. On the said point, the learned Chief Judge held as under: "There is no order of the Arbitrator on the memo. The Award is not disclosing that whether there was any arguments advanced by either side on the memo with regard to the application of new Act or continuing with old Act. Thus, an endorsement 'seen' by the respondent cannot be considered as consent. When there is no consent of parties the learned Arbitrator is not supposed to invoke the provisions of new Act as there is a specific bar under Section 85 (2) of the Act. The reasons given by the Arbitrator in the Award that once if the Arbitrator indicates his willingness to act as, such proceedings must be held to have commenced is not applicable in this case. The said principle was laid down by the Supreme Court of India in a case reported in AIR 1989 SC at Page 2259 by then new Act has not come into force. The new Act has come into force only on 25-1-1996 and by the date of delivery of the said Judgment relied by Arbitrator the New Act has not come into force. Therefore, the observations of the learned Arbitrator that once if the Arbitrator indicates his willingness the proceedings must have been held to have commenced has no relevance." We concur with the reasoning given by the learned Chief Judge. The word 'seen' written by a junior counsel on the memo does not imply that the opposite side i.e., the Corporation has nodded in approval for what is written in the memo. If the words "no objection" or "yes" are employed, there is possibility of positive interpretation of those words as giving consent for passing the award under the provisions of the New Act. The learned arbitrator would have clearly ascertained from the Corporation whether they are agreeable for passing the award under the provisions of the New Act by way of taking an endorsement or by way of taking a separate memo to that effect. He also did not pass any order on the memo. The learned arbitrator would have clearly ascertained from the Corporation whether they are agreeable for passing the award under the provisions of the New Act by way of taking an endorsement or by way of taking a separate memo to that effect. He also did not pass any order on the memo. Therefore, in the circumstances, we are of the opinion that the endorsement "seen" cannot be interpreted as consent given by the Corporation for passing the award under the provisions of the New Act. Accordingly, on the second point we hold that both parties had not opted for application of the New Act by agreement or consent. 28. For all the reasons given supra, it must be held that the award passed under the New Act is liable to be set aside. That way, we confirm the impugned order. 29. The learned Chief Judge held that the award must be deemed to have been passed on 28-10-1999 or thereafter since the stamps, on which it was typed, were purchased on 28-10-1999. Here, it must be pointed out that as per the provisions of the 1940 Act, want of stamps was not an illegality apparent on the face of the award. An unstamped award can be impounded after the defect being cured to make it the rule of the Court. An award once signed cannot be re-written over stamp paper. In the case on hand, the award was written on stamp paper purchased on 28-10-1999 and signed and, therefore, the finding of the lower Court that it must be deemed to have been signed on 28-10-1999 must be upheld. 30. In conclusion, the appeal is liable to be dismissed and is accordingly dismissed. No costs.