The Amendment Act, 2015, did not apply to arbitral proceedings and court proceedings commenced before its commencement, and the rights and remedies of the parties were preserved under the General Clauses Act, 1897.

I.P. Mukerji, J.

In this application, under Section 34 of the Arbitration and Conciliation Act, 1996, an interim arbitral award made on 14th October, 2016 is challenged. It was made and published by a panel of three very distinguished Judges of our country, Justice S.C. Agrawal, Justice D.P. Wadhwa and Justice S.B. Sinha.

2. The claimants/petitioners were directed to pay a sum of Rs. 135,16,92,947.73 to the account of TPPL within one month from the date of the award, failing which they would have to pay interest @ 24% p.a. from the date of the interim award till the date of payment.

3. The Arbitration and Conciliation (Amendment) Act, 2015 was enacted by Parliament and came into force on 23rd October, 2015. Thus, the arbitration was commenced, held, concluded and the award passed before coming into force of the Amendment Act.

4. By Section 19 of the said Amendment Act 2015 Section 36 was replaced by a new Section 36 which as follows:-

"36. Enforcement.-(1) Where the time for making an application to set aside the arbitration award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been filed in the court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3) on a separate application made for that purpose.

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908)"

5. This amendment made a serious departure from the erstwhile Section 36 because under the old section filing of an application to set aside the award, within time operated as a stay of execution of the award. Under the amended provision, the petitioner, applying for setting aside of the award has to apply to the court separately for its stay. It is stated in the proviso to the said section that the court considering the application to grant of stay would have to follow the principles for grant of stay of a money decree. This means that the award debtor has to secure the awarded sum.

6. The petitioners contend that they are entitled to determination of this Section 34 application on the same terms and conditions as provided in the Act, before its amendment.

7. Now, the question arises as to which proceedings, does the Amendment Act apply? Does it apply to applications to set aside awards made in relation to arbitral proceedings commenced before the Amendment act, made after coming into force of the Amendment Act? Does it relate to arbitral proceedings commenced and court proceedings relating thereto filed after coming into force of the Act? Does it apply to applications to set aside the award filed before the amendment in relation to arbitral proceedings which commenced and concluded before the amendment by publication of the award?

8. We have to now see to what extent the Amendment Act of 2015 has preserved the rights conferred by section 6 of the General Clauses Act, 1897?

9. First, let me set out section 6 of the said Act which is as follows:

"6. Effect of repeal-where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal s