9911796707
TMI Blog1998 (3) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... 94 and since the Chief Engineer, Irrigation Department, Government of Goa failed to appoint an arbitrator within the prescribed time, the petitioner filed an application under section 20 of the old Act in the Court of Civil Judge, Senior Division at Margao, which was registered as Special Civil Suit No. 174/94. The trial Court in the said civil suit appointed a retired Executive Engineer by name Shri H.R. Anand as the sole arbitrator to decide the dispute between the parties and the said arbitrator gave his award on 30-7-1996. Meanwhile, the new Act came into force with effect from 25-1-96. The arbitrator filed his award in the trial Court in terms of the provisions contained in section 14 of the old Act and the respondent herein filed its objections to the said award on 7-9-1996. The respondent further filed an application on 20-10-96 challenging the very appointment of the arbitrator by the trial Court on the ground that the arbitrator ought to have been appointed by the personal designata and not by the Court. While the said proceedings were pending before the trial Court, the petitioner herein on 20-12-96 filed an application for dismissal of the entire proceedings before the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time when the new Act came into force. Clause (b) of sub-section (2) of section 85, provides that the rules and the notification issued under the old Act shall be deemed to be issued under the new Act to the extent to which they are not repugnant to the provisions contained in new Act. In other words, section 85 makes it abundantly clear that the provisions of the old Act shall continue to apply to the proceedings which had commenced before the new Act had come into force, unless otherwise agreed upon between the parties to the proceedings. 4. The question which, therefore, arises now is whether the agreement which is referred to in the section 85 for the purpose of applicability of the new Act to the pending proceedings which had already commenced under the old Act is one necessarily to be entered into after enforcement of the new Act or any clause to that effect in an agreement already entered into between the parties before enforcement of the new Act would be sufficient for that purpose. Once the new Act has come into force and by virtue of section 85, the old Act having been repealed, in the normal circumstances there would have been no scope for any insistence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law should be considered to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences. The Court's endeavour should be to avoid an unjust or absurd result. The purpose of the Act and the object of particular section to be interpreted, has to be borne in mind and the Act should be read purposefully and meaningfully having regard to the spirit of the Act. The provisions of the law are to be given rational meaning. It is well established rule of interpretation of statute that while the words of an enactment are important, the context is no less important. The words, therefore, should be read in context and not in isolation. It is said that the words 'like men' do not have their full significance when standing alone and like men they are better understood by the company they keep. 7. The Statements of Objects and the Reasons given in the Arbitration and Conciliation Bill 1995 disclose that the bill seeks to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards and to define the law relating to conciliation taking into account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact, the above quoted objects described in the bill of 1995, disclose a clear intention on the part of the legislature to make the arbitration procedure not only fair and efficient, but capable of meeting the need of each and every arbitration proceedings and further to minimise interference of the Court in such proceedings and to give finality to the awards passed in such proceedings without much scope for judicial review of the same. Various provisions of the new Act clearly give ample freedom to 'the parties to the proceedings to decide about different procedural aspects of the arbitration proceedings in the manner the parties deem fit and proper. In this background, it will be relevant to peruse the saving clause even at the cost of repeatation. The said saving clause contained in sub-section 2(a) of section 85 of the new Act reads thus :- 2(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; 10. Considering the sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Act would apply to such proceedings. In respect of such proceedings, it is not left to the Will of the parties to adopt the procedure of their choice - old or new Act but such proceedings are necesarily to be governed by the provisions of the new Act. But one thing is clear from this provision that the provisions of the new Act are made applicable even to the proceedings which commence after coming into force of the new Act, but under the agreement executed before coming into force of the new Act. Bearing this in mind, it will be thus clear that the expressions otherwise agreed by the parties necessarily refer to the intention of the parties regarding applicability of the provisions of the new or old Act and not to the time factor. In this view of the matter, the findings of the trial Court that the said agreement is required to be executed after enforcement of the new Act is not only erroneous and contrary to the scheme and spirit of the Act, but tends to defeat the very object and purpose sought to be attained by the new Act. In fact, the trial Court had rushed to the conclusion that such an agreement is necessarily to be executed after enforcement of the new Act without anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the parties had unequivocally agreed to be governed, in the matter of procedure of the proceedings relating to the arbitration, by the law which was in force at the time of execution of the agreement as well as by any further statutory changes those may be brought about in such law. Now if we peruse the Preamble of the new Act, it is seen that it reads thus: An Act to consolidate and amend the law relating to domestic arbitration ..... and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons as given in the Arbitration and Conciliation Bill, 1995, reads thus : The law of arbitration in India is at present substantially contained in three enactments, namely the Arbitration Act, 1940. ..... . In other words, the new Act has come into force as a result of consolidation and amendment of all the laws relating to arbitration - domestic as well as international, which include the old Act. Being so, considering the Clause 25 in the agreement which provides that ..... or any statutory modification or any enactment thereof. ..... , it is evident that the parties had agreed to follow the procedure under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 of the new Act further provides limitation period for taking recourse under said sections from the date of receipt of the copy of such arbitral award. Further section 36 of the new Act provides that the award by the Arbitrator can be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court. In other words, receipt of signed copy of the arbitral award is an important event in the arbitration proceedings. It assumes further importance in the case in hand in view of the undisputed fact that the arbitrator in the instant case by his notice dated 30-7-96 had informed the parties to collect signed copy of the award on prior payment of the fees and further on payment of such fees had filed the original award in the Civil Court on 9-8-96, along with a forwarding letter wherein it was disclosed that both the parties had collected their respective signed copies of the award from the arbitrator. The forwarding letter was dated 9-8-96. In other words, the parties had definitely collected the signed copies of the arbitral award prior to 9-8-96. This being so, in the absence of any agreement to the contrary in terms of section 33 of the new Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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