(August 2, 2001) 2001 (TLS)125686

2001-AD (Del)-7-546 :: 2001-ILRDLH-7-70

BHAI SARDAR SINGH AND SONS Vs. Delhi Development Authority

V. S. AGGARWAL

( 1 ) SHRI R J Bakhru had been appointed as an arbitrator by the Engineer Member, Delhi Development authority to make an award regarding the disputes falling within the purview of clause 25 of the arbitration agreement between the parties. In pursuance of the same, the arbitrator decided the claims and the counter claims and made an award against the Delhi Development Authority amounting to rs. 18,89,998. 00 with interest at the rate of 18% PA on rs. 14,40,386. 00 with effect from 13/3/1986 till the payment is made. The award had been filed and on 26/11/1998 the Joint Registrar (O) issued notice to the parties without process fees.

( 2 ) THE Delhi Development Authority filed objections to the award referred to above. It has been stated that there is error apparent on the face of the record and the award of the arbitrator is liable to be set aside. It is contrary to the conditions of the contract and in terms of clause 25 of the agreement reasons have not been given. The Delhi Development authority thereupon assailed the findings claimwise to be not correct. The same need not be reproduced which is not relevant for purposes of the present judgment.

( 3 ) IN the reply filed to the objections it was alleged that award is not liable to be set aside because this court will not examine the correctness of the findings of the arbitrator. It will also not go into the reasonableness of the findings and there are no ground otherwise also for setting aside of the award. A plea has been offered that the respondent objector has not disclosed the provisions under which the objections have been filed. Reply even to the merits had been filed supporting the findings of the arbitrator.

( 4 ) DURING the course of arguments an objection was raised that the present pleas raised in the form of objections by the Delhi Development Authority cannot be gone into because according to the learned counsel for the applicant M/s Bhai Sardar Singh and Sons it can only be considered in terms of Arbitration and conciliation Act, 1996. Needless to state that on behalf of the objector it was contended that the objections necessarily must be gone into because the arbitrator was appointed under the Arbitration Act, 1940 and in any case according to the learned counsel for the Delhi Development Authority it is the court which had issued the notice and thereupon objections were filed. Furthermore, plea had been raised that under Section 21 of the Arbitration and Conciliation act, 1996, (for short the Act) proceedings for arbitration commences when request is made for reference to arbitration and it is received by the other party. Consequently it must continue under the arbitration Act, 1940.

( 5 ) IT is a common case of the parties that the reference had been made while the arbitration Act, 1940 was in force. It had been made on 10/2/1992. By the time the award had been pronounced the said Act has been repealed and the Arbitration and conciliation Act, 1996 had come into force. Section 85 of the Arbitration and Conciliation Act, 1996 provides the necessary guide-lines in this regard. It runs as under : repeal and saving - (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and enforcement) Act, 1961 (45 of 1961) are hereby repealed. (2) Notwithstanding such repeal- (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force : (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to ha