KAMDHENU COOPERATIVE GROUP Vs. VARDHMAN CONTRACTORS AND

JUDGEMENT

(1.) IA No.7382/1998 (under Section 5 of the Limitation Act) IA No.7383/1998 (under Sections 30 and 33 of the Arbitration Act, 1940) The petitioner was awarded the contract for construction by the respondent society and since disputes arose between the parties, the respondent filed a petition under Section 20 of the Indian Arbitration Act 1940 (hereinafter referred to as the said Act) being suit No.2699/1995. The said petition was allowed vide order dated 20.3.1996. Mr. M.R. Warerkar was appointed as the Sole Arbitrator. The Sole Arbitrator entered appearance and made and published his award dated 17.8.1996. It may be noticed that the respondent after initially seeking adjournments failed to attend the proceedings and award has been made in the absence of the respondent.

(2.) The first issue raised is as to whether the proceedings are to be considered under the Old Act or the New Act. In this behalf learned counsel for the respondent submits that the petition under Section 20 of the Old Act was filed in 1995, i.e. prior to the Arbitration and Conciliation Act 1996 coming into force. The order of reference was however passed on 20.3.1996. Learned counsel for the respondent contends that in view of the judgement of the Supreme Court in Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd. 2004(1) Arb. LR 613 (SC), it is the date of issuance of notice for appointment of Arbitrator which is the relevant date for determining as to which Act would apply. Learned counsel for the respondent submits that in the present case no such notice was actually issued and the respondent had filed the proceedings before the Court. Learned counsel further tries to contend that some letters were issued by the respondent which may be considered as a notice. Be that as it may, learned counsel contends that the learned single Judge of this Court in Anand Kumar Jain Vs. Union of India 1984 RLR 438, held that the date of issuance of notice in application under Section 20 of the Old Act is to be considered as the date of notice for reference of disputes to Arbitration. Learned counsel states that even if that date be considered, the petition having been filed in 1995, the dispute will be governed by the Old Act.

(3.) Learned counsel for the petitioner has chosen not to remain present to make any submissions. In view thereof I am inclined to accept the submission of the learned counsel for the respondent that the objections be considered under the Old Act.