1. The petitioner has filed an application for execution of an award dated 11th September, 2015. In column 4 of the tabular statement the petitioner has disclosed that the judgment debtor has filed an application for setting aside of the award under Section 34 of the Arbitration and Conciliation Act, 1996.

2. The judgment debtor appears and resists the execution of the award on the ground that an application under Section 34 of the Arbitration and Conciliation Act, 1996 is pending.

3. The judgment debtor contends that the application for setting aside of the award has been filed within the period of limitation. In view of unamended Section 36 of the 1996 Act the judgment debtor is not entitled to execute the award. In fact, no application for enforcement of award could be filed until the application for setting aside of the award is disposed of in favour of the award holder.

4. The argument proceeds on the unamended provision of Sections 34 and 36 of the 1996 Act.

5. Mr. S.N. Mukherjee, the learned Senior Counsel appearing on behalf of the award holder submits that the award debtor has filed an application for stay of operation of the award in the manner as indicated in Section 34(5) read with Section 36(2) of the Arbitration and Conciliation Act, 1996. Although, the said application has been filed but no stay has been granted by the Court hearing the application for setting aside of the award. In absence of such order the award is executable.

6. The Amendment Act has made a conscious distinction between a proceeding before the arbitral tribunal and a proceeding before the Court. The first limb of Section 26 of the Amendment Act is confined to a proceeding before the arbitral tribunal. The expression “in relation to arbitral proceeding commenced on or after the date of commencement of this Act” refers to a proceeding before a court of law. The proceeding before the arbitrator commences on issuance of a notice under Section 21 of the Arbitration and Conciliation Act. The arbitral proceeding in respect of a dispute commences on the date on which a request for that dispute to be referred to arbitration is received by the other party. Legislative intent for substituting Section 36 of the old Act by a completely new provision is required to be taken into consideration and has to be interpreted to advance the object of such amendment.

7. Section 36 of the Act prior to its amendment did not confer any substantive or vested right to an award debtor. The amendments introduced to Section 36 of the Act are procedural in nature and do not impair the right to challenge the award under Section 34 of the Act.

8. The said Amending Act was needed in view of the observations made by the Apex Court in National Aluminium Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. & Anr. reported at (2004) 1 SCC 540 in which the Apex Court has expressed its concern with the language of Section 34 of the principal Act which makes it clear that an award challenged under Section 34 of the principal Act within the time stipulated therein becomes inexecutable. Mr. Mukherjee has drawn attention to Paragraph 11 of the said report which reads:-

“11. However, we do notice that this automatic suspension of the execution of the award, the moment an application challenging the said award is filed under section 34 of the Act leaving no discretion in the court to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs. We do find that there is a recommendation made by the concerned Ministry to the Parliament to amend section 34with a proposal to empower the civil court to pass suitable interim orders in such cases. In view of the urgency of such amendment, we sincerely hope that necessary steps would be taken by the authorities concerned at the earliest to bring about the required change in law.”

9. The amendment introduced to Section 36 of the Act is curative as it seeks to do away with t