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2009 DIGILAW 1236 (MP)

National Fertilizers Ltd v. Vimal Enterprises

2009-11-03

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

body2009
Judgment Samvatsar, J. ( 1. ) This judgment shall govern disposal of both the appeals, i.e. M.A.No. 267/2002 and M.A.No. 268/2002 as common question of law and facts are involved in both the appeals. ( 2. ) Both the appeals are preferred by the defendant-appellant National Fertilizers Limited challenging the order dated 23.8.2001 passed by the District Judge, Guna in Case No. 38/2000 (Misc. Civil), whereby the objections filed by the present appellant to an award passed by the Arbitrator are rejected and award is made rule of Court. ( 3. ) Brief facts of the case are, that the parties have entered into agreement which contained an arbitral clause. As there was no dispute about the terms of agreement the matter was referred to the Arbitrator in the year 1984. The Arbitrator passed an award on 8.8.1990. Against this award, the present appellant-National Fertilizer Limited preferred a Civil Revision No. 565/1994. This revision was allowed by this Court on 19.5.1995 and the matter was again remanded to the District Judge. The District Judge after hearing the parties, again referred the matter to the Arbitrator with a direction to pass a fresh award. The Arbitrator passed the award on 12.6.2000. This award was preferred by the respondent M/s. Vimal Enterprises before this Court for making it rule of Court on 28.5.2000. The present appellant preferred objections to the said award on 25.8.2000. The main objection raised by the present appellant was that the provision of Arbitration and Conciliation Act, 1996 [hereinafter referred to as "the Act of 1996] will apply to the arbitral proceedings and the award passed by the Arbitrator under the provisions of the Arbitrator Act, 1940 is without jurisdiction as the provision to the said Act will not apply after commencement of the Act, 1996 which came into force w.e.f. 16th August 1996. These objections were overruled by the Arbitrator by the impugned order. Hence, this appeal. ( 4. ) Learned counsel appearing on behalf of appellant-National Fertilizers Limited relying on a judgment of the apex Court in the case of Thyssen Stahlunion Gamb v. Steel Authority of India Ltd. (1999) 9 SCC 334 and has contended that new Act has come into force and the proceedings will have to continue as per the Act of 1996. This contention raised by the learned counsel for the appellant., National Fertilizers Limited does not appear to be correct. This contention raised by the learned counsel for the appellant., National Fertilizers Limited does not appear to be correct. ( 5. ) From the perusal of the aforesaid judgment, we find that in that case the parties have agreed with the proceedings.Provisions of the New Act will be applicable between the parties, there is no such agreement in the present case. ( 6. ) Section 85 of the new Act of 1996 is a provision of repeal and savings. As per proviso to sub-section (2) of section 85 of the said Act, the provisions of the said enactments shall apply in relation to the 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 communced on or after this Act comes into force. ( 7. ) Thus, the determining factor is the different of commencement of proceedings. The phrase commencement of arbitral proceedings is defined in section 21 of the Act of 1996. As per section 21 of the said Act, 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. ( 8. ) In the present case, Arbitrator was appointed in the year 1984 and the matter was referred to the Arbitrator in the year 1984. Thus, arbitral proceedings commenced in 1984 i.e. much before the new Act 1996 came into force. In such circumstances the Court below has not committed any error in holding that provisions of old Act will be applicable in the present case and dismissing the objections of the present appellant on that ground. ( 9. ) From a perusal of this Court order dated 12.4.2002, it appears that an FDR of Rs. 25, 94, 670/- is kept with the Registrar, Gwalior. The same be handed over to the respondent M/s. Vimal Enterprises, who is entitled to encash the same. ( 10. ) In such a situation, no interference in the impugned order is called for.Both the appeals i.e. M.A.No. 267 of 2002 and M.A.No. 268 of 2002 stand dismissed accordingly.