IMPORTANT POINT
In a proceedings where the award was passed under the Arbitration Act, 1940, remedy of filing appeal or petition for setting aside the said award would be as per provisions of the Old Act and not under Arbitration and Conciliation Act, 1996.

JUDGMENT

Shah, J.-These appeals are directed against the judgment and order dated 27th April, 2000 passed by the High Court of Bombay, Goa Bench, in Arbitration Appeal No.1 of 1993 etc. etc.

2. In pending appeals, a contention was raised by the appellant that appeals filed by the respondents under Section 37 of the Arbitration Act, 1940 (hereinafter referred to as the Old Act ), are required to be decided on the basis of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the New Act ) because the arbitration agreement provides as under: -

Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or re-enactment thereof and the Rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause."

That contention was rejected by the High Court. Hence, these appeals.

3. In support of aforesaid contention, learned senior counsel Mr. Desai for the appellant relied upon the decision in Thyssen Stahlunion GMBII v. Steel Authority of India Ltd. [(1999) 9 SCC 334].

4. Before referring to the decision in Thyssen s case, we would first refer to Section 85 of the New Act, which reads as under:-

"85. Repeal and saving.-(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Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.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."

Section 85(2)(a) specifically provides that - (1) the provisions of the Old Act shall apply in relation to arbitral proceedings which commenced on or before the New Act came into force, unless otherwise agreed by the parties; (2) it also provides that the New Act shall apply in relation to arbitral proceedings which commenced on or after the New Act came into force.

5. In all these matters arbitrators were appointed prior to 25th January 1996. Arbitral proceedings started before that date and the awards in CA No.97/2002, CA No.99/2002, C.A. No. 100/2002 and C.A. No.101/2002 were passed on 20.12.1991, 17.5.1994, 7.5.1992, 3.2.1989 respectively, i.e. prior to 25th January, 1996, and in CA No.98/2002, the award was passed on 30.9.1996, i.e. after 25th January, 1996. On the basis of sub-section 2(a), the provisions of the Old Act would apply to the arbitral proceedings which commenced on or before the New Act came into force.

6. Further, the part of the arbitration clause which is quoted above also provides that the provisions of Arbitration Act, 1940 which were for time being in force were to apply to the arbitral proceedings between the parties. It nowhere provides that once the arbitral proceedings have commenced under the Old Act, they should be conducted under the New Act as soon as the New Act comes into operation. Hence, in the proceedings where the award is passed under the Old Act, the remedy of filing appeal or petition for setting aside the said award would be as per the provisions of the Old Act.

7. Further, the complete answer to the contention of the learned counsel for the appellant is in the following paragraph (para 32) of Thyssen s case wherein the Court has specifically held that once the arbitral proceedings commenced under the Old Act, it would be Old Act which would apply in arbitral proceedings and also for enforcing the award:-

32. Principles enunciated in the judgments show as to when a right accrues to a party under the repealed Act. It is not ne