( 1 ) THE short question that seeks an answer is as to whether in the facts of the case in hand the provisions of the Arbitration Act, 1940 or the arbitration and Conciliation Act, 1996 would apply.

( 2 ) THIS question arises on basis of the facts that on 22/11/1995, M/s. Good Value Engineers (for short "the applicant") submitted, by notice to the engineer-in-Chief, Kashmir House, Rajaji Marg, New delhi, seeking that in face of the disputes, arbitrator should be appointed. The arbitrator was appointed and Notice had been issued by the arbitrator in December 1996. The award has been pronounced on 4/11/1997. Needless to point that the Arbitration and conciliation Act, 1996 came into force on 16/8/1996. Earlier to that/the President had promulgated the arbitration and Conciliation Ordinance on 16/1/1996. With effect from 16/1/1996, the Arbitration Act, 1940 had been repealed.

( 3 ) IT is on the strength of these facts that it had been urged in terms that since notice to appoint the arbitrator had been issued on 22/11/1995, therefore, the arbitral proceedings had started from that date onwards and consequently, the provisions of the arbitration Act, 1940 would continue to apply. On the contrary, as is apparent from the nature of the pleas referred to above the submission advanced was that since the arbitrator was appointed after coming into force of the Arbitration and Conciliation Act, 1996, and even award had,been pronounced after the repeal of the Arbitration Act, 1940 and coming into force of the arbitration and Conciliation Act, 1996. Therefore, the present proceedings necessarily can not be governed by the Arbitration Act, 1940.

( 4 ) BEFORE mentioning into these controversies, it deserves a mention that on behalf of the Union of india, an objection had been raised that the arbitral proceedings under the Arbitration Act, 1940 were illegal and without Jurisdiction because the arbitration and Conciliation Act, 1996 had come into force. So far as this particular contention is concerned, it has to be taken note of and ignored. The reason being that all admissions in law will not bind. It is purely a question of law, to be gone into as to whether the provisions of the Arbitration Act, 1940 have to apply or the Arbitration and Conciliation act, 1996. what the Union of India contended, was repelled and what is now being argued is to the contrary by either side. Irrespective of that, once the legal question has cropped up, anything so pleaded to the contrary, will not bind on question of law. with this back/drop, one can conveniently refer to the relevant provisions of law.

( 5 ) SECTION 21 of the Arbitration and Conciliation act, 1996, in its stark brevity reads: 21. Commencement of arbitral proceedings.-- unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Perusal of the same clearly shows that arbitral proceedings would be deemed to have commenced when a request for the dispute to be referred to the arbitration is received by the respondent/either side. But it is subject to the rider that if it is otherwise agreed between the parties then the arbitral proceedings would commence, as had been agreed between the parties. While repealing the Arbitration Act, 1940 and other relevant provisions. Section 85 of the arbitration and Conciliation Act, 1996 provides 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 wh