M/s. Shree Vishnu Constructions vs The Engineer in Chief Military Engineering Service & Ors.

HELD: 1.1 Section 11(6A) has been inserted by Amendment Act, 2015, by which the powers of the Court dealing with an application under Section 11(6) of the Act are restricted and as per section 11(6A), the powers of the Court while deciding application under Section 11(6) of the Act are confined to the examination of the existence of an arbitration agreement, which powers were not restricted in the pre-amendment Act, 2015. However, Section 26 of the Amendment Act, 2015 provides that nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree. At this stage, it is required to be noted that as per Section 21 of the principal Act, 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 the arbitration is received by the respondent. Therefore, as per section 21 of the principal Act, the arbitral proceedings can be said to have commenced on the date on which a request for the dispute to be referred to the arbitration is received by the respondent. Therefore, as per section 21 of the principal Act the arbitral proceedings can be said to have commenced on the date on which a request for the dispute to be referred to the arbitration is received by the respondent. At this stage, it is required to be noted that by Amendment Act, 2015, Sections 34 and 36 of the Arbitration Act also came to be amended and the interference of the Court in challenge to the award has been restricted and/or narrowed down. [Para 6.1][343-A-E]

1.2 This Court is required to consider whether the decision in the cases of Parmar Constructions Company and Pardeep Vinod Construction Company can be said to be per incuriam as the decision of this Court in the case of BCCI has not been considered by this Court in the said decisions. However, on a fair reading of the decisions in the case of BCCI and the observations made in paragraphs 37 to 39 and on a fair reading of decisions in the cases of Parmar Constructions Company and Pardeep Vinod Construction Company, this Court in the case of BCCI has held that the Arbitration Amendment Act, 2015 is prospective in nature insofar as the proceedings under sections 34 & 36 are concerned. It is required to be noted that in the case of BCCI, application under section 11(6) was not the subject matter and there was no issue before the Court that even in a case where the notice invoking the arbitration is issued prior to the Amendment Act, 2015, but the application under section 11(6) is filed post Amendment Act, 2015, what will be the position and whether the old Act will be applicable or the amended Act. On the other hand, the decisions in the case of Parmar Constructions Company is directly on the point, namely, the application under section 11(6) of the Act. In the case of Parmar Constructions Company , it is specifically observed and held that in a case where notice invoking arbitration is issued prior to Amendment Act, 2015 and the application under section 11(6) is filed post amendment, as per section 21 of the principal Act, the date of issuance of the notice invoking arbitration shall be considered as commencement of the arbitration proceedings and therefore as per section 26 of the Amendment Act, 2015, the Amended Act, 2015 shall not be applicable and the parties shall be governed by the pre-amendment Act, 2015.The submission on behalf of the appellant cannot be accepted for the simple reason that this Court in the case of BCCI was considering the court proceedings under sections 34 and

36. To that, this Court interpreted section 26 in paragraphs 37 to 39, and held that the Amendment Act is prospective in nature, and will apply to those arbitral proceedings that are commenced as understood by section 21 of the principal Act, on or after the Amendment Act, 2015 and to court proceedings which have commenced on or after the Amendment Act, 2015 came into force. Therefore, any observations made by this Court in paragraphs

37 to 39 in the case of BCCI shall be understood and construed with respect to court proceedings which have commenced on or after the Amendment Act coming into force, namely, the proceedings under sections 34 & 36. Therefore, the decisions of this Court in the cases of Parmar Constructions Company and Pardeep Vinod Construction Company cannot be said to be per incuriam and/or in conflict with the decision of this Court in the case of BCCI. In the case of Parmar Constructions Company which is directly on the point, it isspecifically observed and held that the 2015 Amendment Act, which came into force w.e.f. 23.10.2015 shall not apply to the arbitral proceedings which are commenced in accordance with the provisions of section 21 of the principal Act, 1996 before the coming into force the 2015 Amendment Act, unless parties otherwise agree (para 27). Similar view has been expressed in the case of S.P. Singla Constructions Private Limited. [Paras 9, 9.1][351-E-H; 352-A-C, D-G] Union of India Vs. Parmar Construction Company, (2019) 15 SCC 682 : [2019] 5 SCR 1009; Union of India Vs. Pradeep Vinod Construction Company, (2020)

2 SCC 464 : [2012] 17 SCR 64; S.P. Singla

Constructions Private Limited Vs. State of Himachal Pradesh and Anr. (2019) 2 SCC 488 : [2018 14 SCR 1005 – relied on.

1.3 In the present case the notice invoking arbitration clause was issued on 26.12.2013, i.e., much prior to the Amendment Act, 2015 and the application under Section 11(6) of the Act has been preferred/filed on 27.04.2016, i.e., much after the amendment Act came into force, the law prevailing prior to the Amendment Act, 2015 shall be applicable and therefore the High Court has rightly entered into the question of accord and satisfaction and has rightly dismissed the application under section 11(6) of the Act applying the principal Act, namely, the Arbitration and Conciliation Act, 1996, prevailing prior to the Amendment Act, 2015. This Court is in complete agreement with the view taken by the High Court. In a case where the notice invoking arbitration is issued prior to the Amendment Act, 2015 and the application under Section 11 for appointment of an arbitrator is made post Amendment Act, 2015, the provisions of preAmendment Act, 2015 shall be applicable and not the Amendment Act, 2015. [Para 10][353-A-D]

Board of Control for Cricket in India (BCCI) Vs. Kochi Cricket Private Limited and Ors., (2018) 6 SCC 287 : [2018] 2 SCR 829; Aravali Power Company Private Limited Vs. Era Infra Engineering Limited, (2017) 15 SCC 32 : [2017] 11 SCR 497; Ssangyong Engineering and Construction Company Limited Vs. National Highways Authority of India (NHAI), (2019) 15 SCC

131 : [2019] 7 SCR 522; Hindustan Construction Company Limited and Anr. Vs. Union of India and Ors., (2020) 17 SCC 324; Government of India Vs. Vedanta Limited, (2020) 10 SCC 1; Patel Engineering Limited Vs. North Eastern Electric Power Corporation Limited, (2020) 7 SCC 167 : [2020] 4 SCR 156; Mayawati Trading v. Pradyut Debbarman, (2019) 8 SCC 714 : [2019] 12 SCR 123 – referred to.