The central legal point established is the determination of the validity of the arbitration reference under the Arbitration and Conciliation Act, 1996, and the applicability of the Arbitration Act, 1940 to the proceedings.

Pradeep Nandrajog, J.

1. Vide FAO No. 203/2005 the appellant thereof has challenged an order dated 03.01.2005 passed by the learned Additional District Judge holding that reference to arbitration under the Arbitration and Conciliation Act, 1996 was invalid and as a consequence thereof the award has been set aside.

2. FAO No. 253/2006 is actually a cross-objection filed by the respondent to the impugned order dated 03.01.2005.

.3. Pertaining to the challenge to the order vide FAO No. 203/2005 relevant findings of the learned Trial Judge are as under:

.12. As regards other plea, the counsel for the objector filed copy of general conditions of contract, form DGS & D 68 (revised). Clause 24 therein contains arbitration clause. Sub-clause (VI) thereof reads as under:

.Subject as aforesaid, the Arbitration Act, 1940 and the rules thereunder and any statutory modifications thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this clause.

.13. The counsel for the objector forcefully urged that in view of the aforesaid sub-clause only Arbitration Act, 1940 could apply which stood repealed by the new Act of 1996. The reference took place in 2000, long after the commencement of new Act of 1996. By that time the old Act of 1940 was no more in force and could not be invoked.

.There was no fresh agreement between the parties to apply new Act of 1996. Section 85 of the new Act deals with the savings of provisions of old Act is not applicable because that is confined to proceedings commenced under the old Act. Since in the present case no proceedings commenced under the old Act, the same could not be continued and saved.

.14. In support of his submissions the counsel for the objector relied upon Division Bench decision of our own Honble High Court in Vijay Industries & Projects Ltd. v. National Thermal Power Corporation Ltd. 104 (2003) DLT 171 . There also the arbitration clause was provided in Clause 26.6.2 of General Conditions of Contract and was para materia with Clause 24(VI) of the present case. It was held that expression any statutory provision would have to be read ejusdem generis and word thereof used leave no scope for doubt that any statutory modification refers to modification if any made or carried out in the Arbitration Act, 1940. By no stretch of imagination could it be overstretched to include new Arbitration Act.

15. The decision of Honble Supreme Court in Rani Constructions Pvt. Ltd. v. Himachal Pradesh State Electricity Board 1999(3) Arb. LR 532 was noticed by DB of our own Honble High Court in para Nos. 5 to 7 of the above judgment. It was held in para 10 that it is noteworthy that the arbitration clause in Rani Constructions contains additional word "reenactment" which is missing in the arbitration clause in the present case and which makes it different. Therefore, it is not a case of two similar clauses on all fours so as to attract the application of the new Act in consonance with the observations of Honble Supreme Court in Rani Constructions case.

16. The counsel for the respondent submitted that objector did not take this plea in the written statement filed before the arbitrator. The counsel for the objector refuted the same by submitting that he took this plea in the written submissions dated 01.03.2002. He contended that the same was legal plea and could be taken at any stage, even before the court for the first time. He went on to urge that lack of objection cannot confer jurisdiction on arbitrator. The only source from which arbitrator derives jurisdiction is agreement and in the absence thereof whole proceedings are null and void. In support of his arguments he relied upon Constitutional Bench decision of the Honble Supreme Court in Waverly Jute Mills v. Raymon & Co. [1963] 3 SCR 209 . It was held in headnote (g), paras 18, 21 and 22 that want of initial jurisdiction in arbitration proceedings make the proceedings void, defect is not cured by appearance of pa