SYLVESTER AND COMPANY Vs. A INFRASTRUCTURE

JUDGEMENT

(1.) A memorandum dated 14th July, 1994, was signed between the parties to the present appeal. The memorandum provided that the disputes between the parties shall be resolved by any Chamber of Commerce as named therein including Bombay Chamber of Commerce. This was so provided vide letter dated 20th October,1994 addressed to the Bombay Chamber of Commerce. The proceedings in the arbitration commenced between the parties in the year 1994 itself as one Shri R.K. Tanna was appointed as sole arbitrator and first date of arbitration hearing was fixed as 15th September,1995. During the pendency of these proceedings, the Arbitration Act, 1940 was repealed and on 27th January, 1996, the Arbitration and Conciliation Act, 1996 came into force. In terms of Section 85 of the new Act, according to the appellants, the proceedings would be deemed to have continued under the provisions of the 1940 Act. Without any right having been exercised by the parties, as it is the case of the appellants, the arbitration proceedings culminated into an Award dated 9th June, 1997. On the basis of this award, the respondents commenced execution proceedings which, according to the appellants, were illegal.

(2.) THE claimants sought the execution of the award and as more than two years had lapsed from the date of the award, notice under Order 21 Rule 22 of the Code of Civil Procedure, 1908, was taken out. No reply affidavit was filed in that notice by the respondents but later another Notice of Motion being Notice of Motion No. 1245 of 2006 in Execution Application No. 405 of 2006 was filed by the appellants stating therein that the award would be deemed to have been passed under the provisions of the 1940 Act and without specific consent of the parties, the proceedings could not have continued or be treated in law as proceedings under the new Act. The award, therefore, was not executable as a decree in terms of the provisions of the Act of 1996. Some other objections were also taken which were rejected by the learned single Judge vide order dated 9th March, 1997 and Notice of Motion No. 1245 of 2006 taken out by the respondents was made absolute. Aggrieved from the order dated 9th March, 2007, the appellants have filed the present appeal.

(3.) ARGUMENTS at some length were addressed by the learned counsel appearing for the parties in relation to the question whether the provisions of the old Act would continue to control the rights and obligations of the parties or whether such rights were governed by the provisions of the Arbitration Act, 1996.