The main legal point established in the judgment is the interpretation of an arbitration agreement executed before the enactment of the Arbitration and Conciliation Act, 1996, and the applicability of relevant provisions and case laws in determining the governing law for the arbitration proceedings.

JUDGMENT :

R.D. Dhanuka, J.

1. Admit. Mr. Joshi, learned senior counsel waives service for the respondent.

2. Affidavit in reply shall be filed within eight weeks from today with a copy to be served upon the petitioner's advocate simultaneously. Rejoinder, if any, shall be filed within two weeks thereafter with a copy to be served upon the respondents' advocate simultaneously. Both the parties are at liberty to file compilation of pleadings, documents and evidence forming part of the arbitral record within eight weeks from today with a copy to be served upon other side.

3. Insofar as the stay of the impugned award is concerned, Mr. Dhakephalkar, learned senior counsel appearing for the petitioner invited my attention to clause 26 of the arbitration agreement which is extracted as under:-

"26. ARBITRATION:

In case of any dispute, the same shall be referred to the Commissioner of the Corporation and his decision shall be final and binding on the Agent.

If the agent is not satisfied with this decision the agent shall within a period of 30 days from receipt of the decision, shall indicate his intention to refer the dispute to Arbitration, failing which the said decision shall be conclusive and the same shall not be questioned subsequently.

Within 30 days of receipt of notice from the agent or his intention to refer the dispute to arbitration, the Municipal Commissioner, shall send to the Agent a list of three officers of the rank of not less than Deputy Secretary to the Government of Maharashtra and who have not been connected with the work under the contract. The Agent shall within 15 days of the receipt of this list, select one of them and who shall then be appointed as sole Arbitrator by the Municipal Commissioner, Kolhapur.

The Arbitration shall be conducted in accordance with the provisions of Arbitration Act, 1940 or any statutory modification thereof."

4. It is submitted by the learned senior counsel that in this case the agreement between the parties was executed on 14th November, 1995. Though the arbitral proceedings were commenced after the Arbitration and Conciliation Act, 1996 came into force, since there was no reference to the Arbitration and Conciliation Act, 1996, statutory modification introduced in the year 2015 by the Arbitration and Conciliation (Amendment) Act, 2015 and more particularly to section 36 would not apply to the present proceedings. He submits that the petitioner is thus entitled to an unconditional stay of the impugned award.

5. Mr. Joshi, learned senior counsel appearing for the respondent on the other hand would submit that it is not disputed by the petitioner that though there is reference to the Arbitration Act, 1940 in the arbitration clause recorded in clause 26 thereof, the fact remains that the arbitral proceedings were commenced only after the Arbitration and Conciliation Act, 1996 came into force. He submits that the petitioner has also invoked the provisions of section 34 of the Arbitration and Conciliation Act, 1996 while impugning the arbitral award rendered by the learned arbitrator in this petition. He further submits that it is also not disputed that in the application under section 11(6) of the Arbitration and Conciliation Act, 1996, the learned arbitrator came to be appointed by this Court. He also pressed in service section 8 of the General Clause Act and would submit that in view of the Arbitration Act, 1940 having been repealed by the Arbitration and Conciliation Act, 1996, the reference to the Arbitration Act, 1940 made in the agreement shall be read as the Arbitration and Conciliation Act, 1996. He strongly placed reliance on the judgment of the Supreme Court in case of Pam Developments Pvt. Ltd. vs. State of West Bengal in Civil Appeal No. 5432 of 2019, delivered on 12th July, 2019 in support of his submission that there is no question of any automatic stay in view of the agreement between the parties that arbitration shall be in accordance with Arbitration Act, 1940 which shall be re