The provisions of the Arbitration and Reconciliation Act, 1996 cannot be applied retrospectively to arbitral proceedings that commenced before the Act came into force and were terminated on the date the Act came into effect.

S. K. SHARMA, J.

( 1 ) THE petitioner seeks to quash the order dated March 8,1999 of the learned Distt. Judge Jaipur City whereby the award of the arbitrator dated Dec. 12, 1996 was set aside and the matter was remanded back to the arbitrator for fresh adjudication.

( 2 ) BRIEF resume of the facts is that in order to settle the dispute between the parties, learned District Judge appointed Shri Ramraj Lal Gupta, a retired judicial officer, as the arbitrator who filed the award in the Court. Objections were raised in respect of said award and the learned Distt. Judge vide impugned order set aside the award and remanded the matter to the arbitrator.

( 3 ) MR. G. S. Bafna, learned counsel appearing for the petitioner canvassed that impugned order appears to have been passed under Section 16 of the Arbitration Act, 1940 (for short the Old Act ). The Old Act has been repealed by Arbitration and Reconciliation Act, 1996 (for short the New Act) and the provisions of Old Act cannot be made applicable in the instant case as the arbitral proceedings had terminated on giving the final award by the Arbitrator on Dec. 12, 1996 and in the New Act there is no provisions of law which permits the remission of award without the concurrence of the parties. In the instant case evidently there is no concurrence of the parties and the order of remitting the award is absolutely illegal and without jurisdiction. It was further urged that even if for the sake of arguments it is assumed that Old Act is applicable then also the impugned order is not in accordance with Section 16 of the Old Act as the grounds for remitting the award are unsustainable in law. Reliance was placed on Nami Gopal Mitra v. State of Bihar, AIR 1970 SC 1636.

( 4 ) MR. G. C. Lunia, learned counsel on the other hand supported the impugned order and contended that provisions of Old Act have been rightly made applicable by the Court below. Reliance was placed on Dynaneshwar Bhiku Dhargalkar v. State of Goa 1998 (4) Cur Civ Cas 69 (Bom ).

( 5 ) I have pondered over the rival submissions and carefully weighed the material on record.

( 6 ) SECTION 85 of the New Act repealed the Old Act but sub-section (2) (a) of Section 85 provides thus -" (2) Notwithstanding such repeal - (a) the provisions of the said enactments shall apply in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;"a bare look at the aforesaid provision demonstrates that arbitral proceedings which commenced before the New Act came into force, shall be governed by the Old Act unless otherwise agreed by the parties.

( 7 ) THE meaningful questions that fall for my consideration now are - (I) Whether arbitral proceedings are terminated after filing of the final award in the Court by the arbitrator ? (II) Whether the arbitral proceedings commenced under the Old Act, shall be governed by the same Old Act even after termination ? (III) Whether the amended law relating to procedure operates retrospectively ?

( 8 ) THERE is no provision in the Old Act which can throw light on the issue as to when the arbitral proceedings shall be deemed to have been terminated but Section 32 of the New Act provides that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal. Thus with the aid of Section 32 of the New Act it can safely be held that arbitral proceedings stand terminated by the final arbitral award. In the instant case the arbitrator filed final award in the District Court on Dec. 12, 1996. This can be treated as the date of termination of arbitral proceedings.

( 9 ) THE New Act came into force with effect from August 22, 1996. Thus, the arbitral proceedings in the instant case which commenced before the New Act came into force and were not terminated on August 22, 1996, shall be g