(Per D.S.A. Varma, J.)

Heard the learned counsel appearing for the appellants as well as Sri P.S. Narasimha, the learned Senior Counsel, representing the learned counsel appearing for the respondents.

2. This Civil Miscellaneous Appeal is directed against the order and decree, 11-10-2004, passed by the Senior Civil Judge, Gudivada, dismissing the petition O.P.No.65 of 2000, filed under Section 30 of the Arbitration Act (Act 10 of 1940) (for brevity "the 1940 Act") read with Section 34 of the Arbitration and Conciliation Act (Act 26 of 1996) (for brevity "the 1996 Act"), seeking to set aside the award, dated 06-09-1999, passed by the learned Arbitrator, Justice K. Punnaiah.

3. Appellants are the Deputy Manager and the Managing Director of Food Corporation of India, respectively, and the respondents are the claimants.

4. The facts, in brief, are that there was an agreement entered into between the parties in connection with certain works; that the original agreement was entered into on 24-04-1983; that due to various reasons certain disputes have arisen, as a result of which the contractor/claimant abandoned the work and sought for reference to an arbitrator by invoking arbitration clause, provided under the agreement; that eventually the appellant rescinded the contract of the claimant on the ground that he failed to complete the work and the aggrieved party approached the civil Court; that the Hon'ble Sri Justice M.Krishnarao was appointed as sole arbitrator; that challenging the appointment of the arbitrator, the appellant has preferred an appeal C.MANo. 425 of 1990 and during the pendency of the said appeal, the said learned arbitrator Hon'ble Sri Justice M. Krishnarao died; that subsequently the said appeal C.M.A.No.425 of 1996 was dismissed on 29-11-1996 with a direction to appoint a new arbitrator in the place of deceased arbitrator.

5. Consequently, the claimant filed an application I.A.No. 1438 of 1997 in a.S.No.20 of 1986 and eventually the Hon'ble Sri Justice K. Punnaiah was appointed as sole arbitrator; that during the pendency of the arbitral proceedings, the claimant has filed the claim statement and the appellant also filed counter to the same; that, on 14-08-1999, the appellant has filed a memo stating that the learned arbitrator has failed to complete the arbitral proceedings within the statutory period of four months time and hence it was not willing for extension of time for arbitral proceedings; that, notwithstanding the said memo, the appellant was set ex parte by the learned arbitrator, the proceedings were conducted and eventually an award was passed on 06-09-1999; that challenging the said award, the appellant has filed the present petition a.p.No.65 of 2000, which was dismissed, by the Court below, through the impugned order. Hence, the present Civil Miscellaneous Appeal.

6. The learned counsel appearing for the appellant would contend that the dispute had arisen prior to the 1996 Act and that since all the proceedings were initiated prior to the commencement of the 1996 Act, they have to be conducted only under the provisions of the 1940 Act.

7. A perusal of the impugned order would only show that both the parties agreed not to contest the matter on merits, except on one and only question of law - as to whether while passing the award the procedure under the 1940 Act ought to be followed or under the 1996 Act?

8. In this connection, the learned counsel appearing for the appellant places reliance on Section 21 read with Section 85 of the 1996 Act.

9. For the sake of convenience and ready reference, Section 21 of the 1996 Act, which deals with commencement of arbitral proceedings, is extracted hereunder, which is thus:

"Section 21: Commencement of arbitral proceedings:- Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent."

10. For the sake of co