( 1 ) THE D. H. has filed execution application for enforcing award dated 24. 9. 1997 as if it were a decree under the Civil Procedure Code and to award interest at the same rate as awarded in the award from the date of award till realisation alongwith cost of the execution.

THIS application is being contested on the ground that this award is not governed by the Arbitration and Conciliation Act, 1996 (hereinafter REFERRED TO to 1996 Act ), but by the Arbitration Act, 1940 (hereinafter called 1940 Act ). Thus the following interesting question arises: "whether the award dated 24. 9. 1997 and execution relating thereto would be governed by the Arbitration Act, 1940 or under the Arbitration and Conciliation Act, 1996?"

( 2 ) BUT first the factual background.

THERE was an agreement dated 4. 3. 1994 between the parties. The agreement contained an arbitration clause for settlement of disputes by arbitration in accordance with the rules of Conciliation and Arbitration of the International Chambers of Commerce (ICC) Paris by a sole Arbitrator appointed by the Chairman of the Arbitral Tribunal of the Court of Arbitration of ICC at New Delhi. This agreement also provided that the contract shall be "governed and construed in accordance with the laws of India for the time being in force". On 14. 9. 1995 the applicant submitted their request for arbitration including documents to the International Court of Arbitration in accordance with Article 3 of ICC Rules. On 20. 9. 1995 the International Court of Arbitration forwarded request of the applicant for arbitration to SAIL - calling for an answer within 30 days in accordance with Article 4 of the ICC Rules. SAIL filed its answer setting out its defence alongwith relevant documents. On 15. 11. 1995 the Arbitral Tribunal nominated the sale Arbitrator in accordance with Article 2 of the ICC Rules read with the arbitration agreement. On 8. 1. 1996 the Arbitrator forwarded to the parties draft Terms of Reference containing issues drawn up by him on the basis of pleadings and documents filed in the proceedings. He called for comments and amendments, if any, to the same from the parties. On 25. 1. 1996 the new Act came into force. On 10. 5. 1996 Terms of Reference were finalised and singed by the parties. On 28. 11. 1996 the counsel for the applicant forwarded to SAIL and the Arbitrator proposed "lay-out for arbitration bundles" which would contain documents exchanged between the parties. The lay-out, in the form of an index carried the title as "in the matter of Arbitration under the Indian Arbitration Act, 1940" On the conclusion of the hearing, the parties were directed by the Arbitrator to file written submissions and accordingly written submissions filed by TSU contained the title as "in the matter of Arbitration under the Indian Arbitration Act, 1940". On 24. 9. 1997 the award was made. On 23. 10. 1997 the applicant filed an application under Secs. 14 and 17 of the 1940 Act. On 17. 11. 1997 the counsel for the applicant wrote to Arbitrator stating that the Award has been filed under the Indian Arbitration Act, 1940 and requested for authority for the filing in the Delhi High Court pursuant to Section 14 of the Indian Arbitration Act, 1940. On 21. 11. 1997 the Arbitrator confirmed that the applicant had the authority to file the award in Delhi High Court pursuant to Section 14 of the Indian Arbitration Act, 1940. On 13. 2. 1998 the present application for execution under the 1996 Act alongwith application under Section 151 for stay of the suit under Sections 14 and 17 of the 1940 Act has ben filed on the ground that the arbitration proceedings had terminated on 24. 9. 1997 and the 1996 Act would apply to the enforcement of the Award.

( 3 ) HAVING heard the learned Senior counsel Shri Fali S. Nariman on behalf of applicant and learned Senior counsel Shri Dipankar P. Gupta on behalf of non-applicant it appears that the entire crux of the matter is the date on which the arbitra