The main legal point established in the judgment is that the interpretation of the arbitration agreement, in conjunction with the provisions of Section 85(2) of the new Act, determines which Act governs the enforcement of an award rendered after the enforcement of the new act.

( 1 ) ONCE again we are called upon to determine an important question. The question is "whether the provisions of Arbitration Act, 1940 (hereinafter referred to as " old Act") or that of Arbitration and conciliation Act, 1996 (referred to as "new Act") would govern the proceedings for the enforcement of an award which has been rendered after the enforcement of the new act w. e. f 25. 1. 1996 though the reference to arbitration was made and arbitral proceedings were conducted under the provisions of the old Act? Depending upon the outcome of this, the next question would be - what is the effect of clause 11 appearing in the arbitration agreement.

( 2 ) THE germane facts which gave rise to the above questions are in a narrow compass. Vide an order dated 18. 9. 1995 passed in Suit No. 3708/1991 under Section 20 of the old Act, this Court appointed Mr. Justice (Retd.) charanjit Talwar as the sole arbitrator to adjudicate upon the disputes and differences which have arisen between the parties. The sole arbitrator entered upon the reference and proceeded with the arbitration, made and published his award dated 16. 3. 1998. Pursuant to an application made under Section 14 read with Section 17 of the old Act, the arbitrator filed his award dated 16. 3. 1998 in the Court. Notice of filing of the award was issued to the parties inviting objections and the respondents have filed their objections under Section 30 and 33 of the old Act against the said award and prayed that the award be set aside on the grounds mentioned in the said objections. The objections filed on behalf of the respondents are being contested by the petitioners and a detailed reply has been filed thereby controverting the objections. As the matter was receiving consideration of this Court, the Hon ble Supreme Court rendered a judgment in the case of Thyssen Stahlunion gmbh Vs. Steel Authority of India Ltd, 1999 (9) SCC 334 and based on the said decision, counsel for the petitioners made a submission to the Court on 17. 9. 2001 that the objections filed by the respondents under the old Act were not maintainable in view of clause 11 of the agreement between the parties.

( 3 ) I have heard Mr. G. L. Rawal, learned senior counsel representing the petitioners and Mr. Rakesh khanna, learned counsel representing the respondents at length and have given my thoughtful consideration to their respective submissions. The answer to the question in this case largely depends upon the interpretation of clause 11 of the agreement which is to the following effect:

"11. That any dispute arising between the parties hereto shall be referred to an arbitrator, to be appointed with the mutual consent of the parties hereto and his AWARD shall be final as under the Arbitration act, enforced on that date. "

( 4 ) ON the strength of the above clause as also the supreme Court decision in Thyssen s case (supra), mr. G. L. Rawal has strongly urged that though the reference was made and arbitral proceedings were conducted under the old Act, still in view of the above agreement and in accordance with the repeal and saving clause contained in section 85 (2) of the new Act, the impugned award shall be governed by the provisions of the new Act and consequently, the objections filed by the respondents under Sections 30 and 33 of the old Act are not maintainable and are liable to be dismissed. As against this, the submission from the other side is that as the arbitration proceedings in the case in hand were commenced under the provisions of the old Act, the said act will apply to the whole gamut of the arbitration proceedings including those for enforcement of the award as well as in regard to the appeal arising therefrom. In support of his contention, learned counsel has placed heavy reliance on the following Supreme Court decisions: i) N. S. Nayak and Sons Vs. State of Goa, (2003) 6 SCC 56; ii) ONGC Vs. Saw Pipes Ltd, (2003) 5 SCC 705; and iii) Milkfood Ltd. Vs. M/s GMC Ice Cream (O) Ltd. ,