An order passed by a court without jurisdiction is non est and its invalidity can be set up when it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings.

Tarlok Singh Chauhan, J.

The question posed in this petition is purely a legal one and, therefore, it is not at all necessary to refer to the facts, save and except that the appellant filed objections against the award passed by the Arbitrator in the Court of learned Civil Judge (Senior Division), which were dismissed on the ground that the same were not maintainable, under section 34 of the Arbitration and Conciliation Act, 1996 (for short “Act of 1940”), as the award has been passed under the Arbitration Act, 1940.

2. The moot question, however, is whether the learned Civil Judge (Senior Division) at the first place had the jurisdiction to entertain such objections or the order passed by him is without jurisdiction and is thus coram non judis.

3. It is not in dispute that the proceedings, which have ultimately culminated into an award under challenge, had been initiated in the year 1986 and it is for the fourth time that an award has come to be passed on 10.2.2009 by the Arbitrator-cum-Managing Director of the respondent-corporation.

4. A notice of the commencement of the arbitration is the first essential step towards the making of default appointment in terms of Chapter-II of the Arbitration Act, 1940 (for short “Act of 1940”).

5. In the instant case, evidently, this notice was issued somewhere in the year 1986 when the provisions of the Act of 1940 alone were in vogue wherein section 8 of the Act conferred the power upon the Court to appoint Arbitrator on an application made in this behalf. Section 20 conferred wide jurisdiction on the Court for directing the filing of the arbitration and appointment of Arbitrator. Section 21 conferred powers on the Court in a pending suit on an agreement of the party to refer the differences between them for arbitration in terms of the Act. The Act provided for filing of the award in the Court on making of a motion by either of the party to make award rule of the Court to have the award set aside on the grounds specified in the award and for an appeal against the decision of such a motion. This Act was replaced by the Act of 1996, which by virtue of section 85 repealed the earlier enactment.

6. Therefore, seminal issue, which arises for consideration at this stage is whether the proceedings would be governed by the Act of 1940 or the Act of 1996.

7. This question is no more res integra in view of the judgment rendered by the Hon’ble Supreme Court in Milkfood Limited vs. GMC Ice Cream (P) Ltd. (2004) 7 SCC 288, wherein it has been clearly held that where the notice of arbitration has been issued under the Arbitration Act, 1940, then the proceedings thereafter would be governed by the Act of 1940 irrespective of the Act of 1996 having come into force. It shall be apt to reproduce the relevant observations as under:

“[45] 'Commencement of an arbitration proceeding' and 'commencement of a proceeding before an arbitrator' are two different expressions and carry different meanings.

[46] A notice of arbitration or the commencement of an arbitration may not bear the same meaning, as different dates may be specified for commencement of arbitration for different purposes. What matters is the context in which the expressions are used. A notice of arbitration is the first essential step towards the making of a default appointment in terms of Chapter II of the Arbitration Act, 1940. Although at that point of time, no person or group of persons charged with any authority to determine the matters in dispute, it may not be necessary for us to consider the practical sense of the term as the said expression has been used for a certain purpose including the purpose of following statutory procedure required therefor. If the provisions of the 1940 Act applies, the procedure for appointment of an arbitrator would be different than the procedure required to be followed under the 1996 Act. Having regard to the provisions contained in Section 21 of the 1996 Act as also the common parlance meaning is given to th