2018 Supreme(SC) 235

SUPREME COURT OF INDIA
R.F. Nariman, Navin Sinha, JJ.
BOARD OF CONTROL FOR CRICKET IN INDIA – APPELLANT
VERSUS
KOCHI CRICKET PVT. LTD. AND ETC. – RESPONDENTS
CIVIL APPEAL Nos.2879-2880 OF 2018 (Arising out of SLP (C) Nos.19545-19546 of 2016) WITH CIVIL APPEAL NO. 2881 OF 2018 (Arising out of SLP (C) No.20224 of 2016) WITH CIVIL APPEAL NO. 2882 OF 2018 (Arising out of SLP (C) No.5021 of 2017) WITH CIVIL APPEAL NOs. 2883-2884 OF 2018 (Arising out of SLP (C) Nos.8372-8373 of 2017) WITH CIVIL APPEAL NOs. 2885-2886 OF 2018 (Arising out of SLP (C) Nos.8374-8375 of 2017) WITH CIVIL APPEAL NOs. 2887-2889 OF 2018 (Arising out of SLP (C) Nos.8376-8378 of 2017) WITH CIVIL APPEAL NOs. 2890-2891 OF 2018 (Arising out of SLP (C) Nos.9599-9600 of 2017) WITH CIVIL APPEAL NO. 2892 OF 2018 (Arising out of SLP (C) No.33690 of 2017)
Decided On : 15-03-2018

IMPORTANT POINTS
Amendment Act includes provisions repealed wholly or partly. Provisions of section 6, General Clauses Act, 1897 generally apply to such Act.
Substituted section 36 of arbitration and Conciliation Act, 1996 would apply even to pending Section 34 applications on the date of commencement of Amendment Act, 2015.
Use of word ‘but’ in a provision makes the two parts, before and after it, separate and distinct.
First part of section 26 cannot be read as exception to second part.
Arbitral proceedings commenced prior to coming into force of the Amendment Act, together with all proceedings in Court in relation thereto, would attract only the provisions of the unamended 1996 Act. Similarly, arbitral proceedings commenced u/s 21 of act 1996 after the coming into force of the Amendment Act, including all courts proceedings in relation thereto, would be governed by the Amendment Act.

Headnote:(a) Interpretation of statute – Amendment act – Includes provisions repealed wholly or partly – Provisions of section 6, General Clauses Act, 1897 generally apply to such Act. (Para 17)

       1988 (Supp) SCC 30 – Relied upon

       (b) Interpretation of statute – Provision should first be construed literally, then purposively and pragmatically keeping the object of the provision in mind. (Para 22)

       (1999) 9 SCC 334; (2004) 7 SCC 288 – Relied upon

       (c) Interpretation of statute – Use of word ‘but’ in a provision – Creates two parts : before and after ‘but’ – Makes the two parts separate and distinct. (Para 23)

       (d) Amendment Act – Section 26 – ‘Arbitral proceeding’ – Refers to proceedings before an arbitral tribunal – Use of ‘to’ in first part and ‘in relation to’ in second part – Reference to section 21 of Arbitration and Conciliation Act 1996. (Para 25)

       (e) Arbitration and Conciliation (Amendment) Act, 2015 – Section 26 – Special provision – Applies on its own terms – First part cannot be read as exception to second part – Section 6 General Clauses act does not apply. (Para 26)

       (1967) 1 LLJ 434; (1967) 3 SCR 833; (1955) 1 SCR 893; (1969) 3 SCR 65 – Relied upon

       (f) Arbitration and Conciliation (Amendment) Act, 2015 – Section 26 – ‘Arbitral proceedings’ – Use of words ‘in relation to’ in second part – Reference to section 21 of act 1996 in first part and its conspicuous absence in second part – Result – Arbitral proceedings commenced prior to coming into force of the Amendment Act, together with all proceedings in Court in relation thereto, would attract only the provisions of the unamended 1996 Act – Similarly, arbitral proceedings commenced u/s 21 of act 1996 after the coming into force of the Amendment Act, including all courts proceedings in relation thereto, would be governed by the Amendment Act. (Para 29, 32)

       A.P. No. 1710 of 2015; FMAT No. 47 of 2016; Arbitration Case Nos. 48, 53 and 54/2014; Application No. 7674 of 2015 in O.P. No. 931 of 2015; Chamber Summons No. 1530 of 2015 etc.;

       GA No. 145/206 with AP No. 15/2016; 2017 SCCOnline Cal 9388; AIR 2017 Cal. 65; AIR 2017 (NOC 923) 314; 2017 SCCOnline Bom (7840); 2017 SCC Bom 1744; Commercial Arbitration Petition No. 434/2017; 2016 (3) CTC 769; 2016 SCC Online Del 5315; ARB. P. 615/2016; OMP (I) (COMM.) 23/2015; Arb. P. No. 174 of 2016; EX. P. 422/2014 & EA No. 739/2016; 2017 SCC Online Del. 9779; 2017 SCC Online Del 7808; Request Case No. 14 of 2016; 2017 (1) PLJR 649; 2017 GLH (1) 383; AIR 2017 (NOC 1012) 344; O/IAAP/15/2017; ILR 2017 Vol. 1, Ker. 370; 2017 (5) KHC 583; 2016 SCC Tri. 500; Arbitration Application No. 34/2014; Arbitration Application No. 95/2013; Arbitration Application No. 74/2013; Arb Case No. 104/2016; Civil Writ Petition No. 2322/2016; LPA No. 917/2017 – Referred

       (1984) 2 WLR 340; (1999) 9 SCC 334; (2004) 7 SCC 288; (2003) 6 SCC 56– Distinguished

       (g) Words and Phrases – ‘Enforcement’ and ‘Execution’ – Section 36, Arbitration and Conciliation Act, 1996 – Award deemed decree and enforceable as such under CPC – Enforcement of a decree by execution under Order XXI, CPC – Held, Section 36 refers to execution of an award as if it were a decree in accordance with Order XXI and XLI (rule 5), CPC. (Para 40, 41)

       (1969) 2 SCR 244 – Relied upon

       (2001) 7 SCC 573; (1976) 3 SCR 540; (2004) 12 SCC 469 – Distinguished

       (h) Arbitration and Conciliation Act, 1996 – Section 36 – Execution proceedings – Procedural in nature – No substantive vested right in a judgment debtor to resist execution – Held therefore, substituted section 36 would apply even to pending Section 34 applications on the date of commencement of Amendment Act, 2015. (Para 42)

       (1971) 1 SCC 721; (1957) SCR 488 – Relied upon

       (1964) 3 SCR 164; (2010) 2 SCC 385; (2010) 3 SCC 34 – Distinguished

       (i) Arbitration and Conciliation Act, 1973 – Section 36 (amended) – Procedural provision – Held, would refer to section 34 applications filed before commencement of Act 2015 – Substituted section n 36 would apply. (Para 45, 46)

       (1961) 2 SCR 26; (1973) 1 SCC 813; (2004) 1 SCC 540 – Relied upon

       (1994) 1 AC 486 – Referred

       (j) Section 26 – Held, on the whole prospective in nature – Question whether certain provisions are clarificatory, declaratory or procedural and, therefore, retrospective – Left open. (Para 54)

       (2001) 6 SCC 356; (1995) 2 SCC 630; (2005) 12 SCC 717; (2009) 9 SCC 462; (2003) 5 SCC 705; (2014) 9 SCC 263; 2017 SCC Online 1024 – Referred

       Facts of the case:

       The present batch of appeals raises an important question as to the construction of Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015, which reads as follows:

       "Section 26. Act not to apply to pending arbitral proceedings.

       Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act."

       The question with which we are confronted is as to whether Section 36, which was substituted by the Amendment Act, would apply in its amended form or in its original form to the appeals in question.

       A notice dated 18th January, 2012 was sent by Respondent No.1 invoking arbitration under a franchise agreement dated 12th March, 2011. A Sole Arbitrator was appointed, who delivered two arbitral awards dated 22nd June, 2015 against the Appellant and in favour of the Respondents.

       On 16th September, 2015, the Appellants filed an application under Section 34 of the 1996 Act in the Bombay High Court challenging the aforesaid arbitral awards.

       On 26th November, 2015, the Respondents filed two execution applications in the High Court for payment of the amounts awarded under the two awards, pending enforcement of such awards. These were resisted by two Chamber Summons filed by the Appellants dated 3rd December, 2015, praying for dismissal of the aforesaid execution applications stating that the old Section 36 would be applicable, and that, therefore, there would be an automatic stay of the awards until the Section 34 proceedings had been decided.

       A Single Judge, in Special Leave Petition (Civil) No.19545-19546 of 2016, dismissed the aforesaid Chamber Summons and found that the amended Section 36 would be applicable in the facts of this case.

       Finding of the Court;

       No interference is required.

       Result: Appeals dismissed.