M/S. SHREE VISHNU CONSTRUCTIONS versus THE ENGINEER IN CHIEF MILITARY ENGINEERING SERVICE & ORS. on 9 May 2023

[2023] 5 S.C.R. 327

M/S. SHREE VISHNU CONSTRUCTIONS

v.

THE ENGINEER IN CHIEF MILITARY ENGINEERINGSERVICE & ORS.

(Civil Appeal No. 3461 of 2023)

MAY 09, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Arbitration and Conciliation (Amendment) Act, 2015 – s.26 –Applicability of Amendment Act, 2015– Whether the provisions ofthe old Act (pre-Amendment Act, 2015) or the new Act (AmendmentAct, 2015) shall be applicable when the notice invoking arbitrationis issued prior to the Amendment Act, 2015 but application to appointarbitrator u/s.11(6), 1996 Act is filed post Amendment Act, 2015 –Held: In a case where the notice invoking arbitration is issued priorto the Amendment Act, 2015 and the application u/s.11(6)is filedpost Amendment Act, 2015, the Amended Act, 2015 shall not beapplicable and the parties shall be governed by the pre-amendmentAct, 2015– Arbitration and Conciliation Act, 1996 – ss.11(6), 21.

Arbitration and Conciliation (Amendment) Act, 2015 –Whetherthe decision in the cases of Union of India v. Parmar ConstructionsCompany reported as [2019] 5 SCR 1009 and Union of India v. PradeepVinod Construction Company reported as [2012] 17 SCR 64 are perincuriam as the decision in the case of Board of Control for Cricket inIndia (BCCI) v. Kochi Cricket Private Limited and Ors. reported as[2018] 2 SCR 829 was not considered in the said decisions – Held:No – Arbitration and Conciliation Act, 1996.

Dismissing the appeal, the Court

HELD: 1.1 Section 11(6A) has been inserted by AmendmentAct, 2015, by which the powers of the Court dealing with anapplication under Section 11(6) of the Act are restricted and asper section 11(6A), the powers of the Court while decidingapplication under Section 11(6) of the Act are confined to theexamination of the existence of an arbitration agreement, whichpowers were not restricted in the pre-amendment Act, 2015.However, Section 26 of the Amendment Act, 2015 provides that

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Anothing contained in this Act shall apply to the arbitralproceedings commenced, in accordance with the provisions ofSection 21 of the principal Act, before the commencement of thisAct unless the parties otherwise agree. At this stage, it isrequired to be noted that as per Section 21 of the principal Act,unless otherwise agreed by the parties, the arbitral proceedingsBin respect of a particular dispute commence on the date on whicha request for that dispute to be referred to the arbitration isreceived by the respondent. Therefore, as per section 21 of theprincipal Act, the arbitral proceedings can be said to havecommenced on the date on which a request for the dispute to beCreferred to the arbitration is received by the respondent.Therefore, as per section 21 of the principal Act the arbitralproceedings can be said to have commenced on the date on whicha request for the dispute to be referred to the arbitration isreceived by the respondent. At this stage, it is required to benoted that by Amendment Act, 2015, Sections 34 and 36 of theDArbitration Act also came to be amended and the interference ofthe Court in challenge to the award has been restricted and/ornarrowed down. [Para 6.1][343-A-E]

1.2 This Court is required to consider whether the decisionin the cases of Parmar Constructions Company and Pardeep VinodEConstruction Company can be said to be per incuriam as thedecision of this Court in the case of BCCI has not been consideredby this Court in the said decisions. However, on a fair reading ofthe decisions in the case of BCCI and the observations made inparagraphs 37 to 39 and on a fair reading of decisions in the casesFof Parmar Constructions Company and Pardeep Vinod ConstructionCompany, this Court in the case of BCCI has held that theArbitration Amendment Act, 2015 is prospective in nature insofaras the proceedings under sections 34 & 36 are concerned. It isrequired to be noted that in the case of BCCI, application under

section 11(6) was not the subject matter and there was no issueGbefore the Court that even in a case where the notice invokingthe arbitration is issued prior to the Amendment Act, 2015, butthe application under section 11(6) is filed post Amendment Act,2015, what will be the position and whether the old Act will beapplicable or the amended Act. On the other hand, the decisionsH

M/S. SHREE VISHNU CONSTRUCTIONS v. THE ENGINEER INCHIEF MILITARY ENGINEERING SERVICE

in the case of Parmar Constructions Company is directly on thepoint, namely, the application under section 11(6) of the Act. Inthe case of Parmar Constructions Company , it is specificallyobserved and held that in a case where notice invoking arbitrationis issued prior to Amendment Act, 2015 and the application undersection 11(6) is filed post amendment, as per section 21 of theprincipal Act, the date of issuance of the notice invoking arbitrationshall be considered as commencement of the arbitrationproceedings and therefore as per section 26 of the AmendmentAct, 2015, the Amended Act, 2015 shall not be applicable andthe parties shall be governed by the pre-amendment Act,2015.The submission on behalf of the appellant cannot beaccepted for the simple reason that this Court in the case of BCCIwas considering the court proceedings under sections 34 and36. To that, this Court interpreted section 26 in paragraphs 37 to39, and held that the Amendment Act is prospective in nature,and will apply to those arbitral proceedings that are commencedas understood by section 21 of the principal Act, on or after theAmendment Act, 2015 and to court proceedings which havecommenced on or after the Amendment Act, 2015 came into force.Therefore, any observations made by this Court in paragraphs37 to 39 in the case of BCCI shall be understood and construedwith respect to court proceedings which have commenced on orafter the Amendment Act coming into force, namely, theproceedings under sections 34 & 36. Therefore, the decisions ofthis Court in the cases of Parmar Constructions Company andPardeep Vinod Construction Company cannot be said to be perincuriam and/or in conflict with the decision of this Court in thecase of BCCI. In the case of Parmar Constructions Companywhich is directly on the point, it isspecifically observed and heldthat the 2015 Amendment Act, which came into force w.e.f.23.10.2015 shall not apply to the arbitral proceedings which arecommenced in accordance with the provisions of section 21 ofthe principal Act, 1996 before the coming into force the 2015Amendment Act, unless parties otherwise agree (para 27). Similarview has been expressed in the case of S.P. Singla ConstructionsPrivate Limited. [Paras 9, 9.1][351-E-H; 352-A-C, D-G]

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AUnion of India Vs. Parmar Construction Company,(2019) 15 SCC 682 : [2019] 5 SCR 1009; Union ofIndia Vs. Pradeep Vinod Construction Company, (2020)2 SCC 464 : [2012] 17 SCR 64; S.P. SinglaConstructions Private Limited Vs. State of HimachalPradesh and Anr. (2019) 2 SCC 488 : [2018 14 SCRB1005 – relied on.

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1.3 In the present case the notice invoking arbitration clausewas issued on 26.12.2013, i.e., much prior to the AmendmentAct, 2015 and the application under Section 11(6) of the Act hasbeen preferred/filed on 27.04.2016, i.e., much after theCamendment Act came into force, the law prevailing prior to theAmendment Act, 2015 shall be applicable and therefore the HighCourt has rightly entered into the question of accord andsatisfaction and has rightly dismissed the application under section11(6) of the Act applying the principal Act, namely, the ArbitrationDand Conciliation Act, 1996, prevailing prior to the AmendmentAct, 2015. This Court is in complete agreement with the viewtaken by the High Court. In a case where the notice invokingarbitration is issued prior to the Amendment Act, 2015 and theapplication under Section 11 for appointment of an arbitrator ismade post Amendment Act, 2015, the provisions of pre-EAmendment Act, 2015 shall be applicable and not the AmendmentAct, 2015. [Para 10][353-A-D]

Board of Control for Cricket in India (BCCI) Vs. KochiCricket Private Limited and Ors., (2018) 6 SCC 287 :[2018] 2 SCR 829; Aravali Power Company PrivateFLimited Vs. Era Infra Engineering Limited, (2017) 15SCC 32 : [2017] 11 SCR 497; Ssangyong Engineeringand Construction Company Limited Vs. NationalHighways Authority of India (NHAI), (2019) 15 SCC131 : [2019] 7 SCR 522; Hindustan ConstructionCompany Limited and Anr. Vs. Union of India and Ors.,G(2020) 17 SCC 324; Government of India Vs. VedantaLimited, (2020) 10 SCC 1; Patel Engineering LimitedVs. North Eastern Electric Power Corporation Limited,(2020) 7 SCC 167 : [2020] 4 SCR 156; MayawatiTrading v. Pradyut Debbarman, (2019) 8 SCC 714 :H[2019] 12 SCR 123 – referred to.

M/S. SHREE VISHNU CONSTRUCTIONS v. THE ENGINEER INCHIEF MILITARY ENGINEERING SERVICE

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3461of 2023.

From the Judgment and Order dated 30.06.2020 of the High Courtfor the State of Telangana at Hyderabad in ARBA No. 151 of 2016.

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K. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Advs. for theAppellant.

Padmesh Mishra, Anukalp Jain, Yuvraj Sharma, Akshay Nain,Arvind Kumar Sharma, Ms. Megha Karnwal, Gopal Jha, Advs. for theRespondents.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court for the State of Telangana atHyderabad in ARBA No. 151 of 2016by which the High Court hasdismissed the said application filed under Section 11 of the ArbitrationAct, 1996 (hereinafter referred to as “Act, 1996”) and has refused toappoint an arbitrator on the ground that earlier the appellant had acceptedthe amount as per the final bill in full and final settlement and withoutraising any dispute and also signed and issued “no further claimcertificate”, the original applicant has preferred the present appeal.

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2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the appellant herein and the respondents entered into anagreement vide agreement dated 22.07.2010 for additions/alterations to H

ASenior Non-Commissioned Officers mess and repairs/renewals to floorsin tech area at Air Force Academy, Hyderabad. The appellant raised arevised final bill for the aforesaid work on 10.07.2012. The payment inrespect of the final bill was made to the appellant on 29.04.2013. Theappellant also issued “no further claim” certificate.

B2.2 The appellant sent a notice dated 20.12.2013 invoking thearbitration clause. The appellant preferred an application under Section11(6) of the Act, 1996 before the High Court on 27.04.2016 and prayedto appoint an arbitrator. The application was opposed by the respondentsinter alia on the ground that the entire amount due and payable underthe final bill was paid as far as back on 29.04.2013 and that even theCappellant issued the “no further claim” certificate and therefore, on theground of “accord and satisfaction”, the dispute is not required to besent for arbitration. However, it was the case on behalf of the appellantthat in view of the Arbitration and Conciliation (Amendment) Act, 2015(hereinafter referred to as “Amendment Act, 2015”) by which SectionD11(6A) came to be inserted, while deciding the application under Section11(6), the Court would have a very limited jurisdiction and to consideronly whether there is an existence of the arbitration agreement or notand no further inquiry is permissible at the stage of deciding the applicationunder Section 11(6) and the issue with respect to the “accord andsatisfaction” has to be left to be decided by the arbitrator / arbitral tribunal.ETherefore, it was the case on behalf of the appellant that the provisionsof the Amendment Act, 2015 shall be applicable.

2.3 It was the case on behalf of the respondents that as per Section26 read with Section 21 of the Amendment Act, 2015, Amendment Act,2015 shall not be applicable in a case where arbitration proceedings asFper Section 21 of the Arbitration Act, has been commenced prior to theAmendment Act, 2015.

2.4 By the impugned judgment and order, the High Court hasdismissed the arbitration petition and has refused to appoint the arbitrator/ arbitral tribunal on the ground that the Amendment Act, 2015 shall notGbe applicable and the Act, pre-amendment, 2015, shall be applicable.That thereafter, after holding that there was a full and final settlement ofthe payment as per the final bill as far as back on 29.04.2013 and eventhe appellant issued the “no further claim” certificate and even theapplication under Section 11(6) of the Act, 1996 was filed after a periodHof approximately three years, the High Court has dismissed the said arbitration application. The impugned judgment and order passed by theHigh Court is the subject matter of present appeal.

3. Shri K. Parameshwar, learned counsel has appeared on behalfof the appellant.

3.1 it is submitted by Shri Parameshwar, learned counsel appearingon behalf of the appellant that the issue that arises for consideration inthe present appeal is the interpretation of Section 26 of the AmendmentAct, 2015 insofar as the applicability of the amended provisions, morespecifically, insertion of Section 11(6A) and its applicability to judicialproceedings initiated after the Amendment Act, 2015 came into forcew.e.f. 23.10.2015.

3.2 Shri Parameshwar, learned counsel appearing on behalf ofthe appellant has vehemently submitted that as such the aforesaid issueis squarely covered by the decision of this Court in the case of Board ofControl for Cricket in India (BCCI) Vs. Kochi Cricket PrivateLimited and Ors., (2018) 6 SCC 287(paras 37 and 39).

3.3 Relying upon the aforesaid decision, it is submitted that in thesaid decision it is specifically observed and held by this Court that theAmendment Act, 2015 shall be applicable prospectively and that even ina case where the arbitration proceedings were initiated as per Section21 of the Act, prior to the Amendment Act, 2015, the Amendment Act,2015 shall be applicable.

3.4 It is further submitted that this Court in BCCI (supra) hadthe occasion to analyse and interpret Section 26 of the Amendment Act,2015. The Court specifically traced the legislative history and thereaftercame to the conclusion that Section 26 is divided into two parts. The firstpart applies to arbitral proceedings before the arbitrator and the secondpart applies to the proceedings in relation to arbitral proceedings, whichmeans judicial proceedings. The Court held as follows:

“38. That the expression “the arbitral proceedings” refers toproceedings before an Arbitral Tribunal is clear from the headingof Chapter V of the 1996 Act, which reads as follows:

“Conduct of arbitral proceedings”

The entire chapter consists of Sections 18 to 27 dealing withthe conduct of arbitral proceedings before an Arbitral Tribunal.What is also important to notice is that these proceedings alone A

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are referred to, the expression “to” as contrasted with theexpression “in relation to” making this clear. Also, the referenceto Section 21 of the 1996 Act, which appears in Chapter V, andwhich speaks of the arbitral proceedings commencing on the dateon which a request for a dispute to be referred to arbitration isreceived by the respondent, would also make it clear that it isthese proceedings, and no others, that form the subject-matter ofthe first part of Section 26. Also, since the conduct of arbitralproceedings is largely procedural in nature, parties may “otherwiseagree” and apply the Amendment Act to arbitral proceedings thathave commenced before the Amendment Act came into force. [Section 29-A of the Amend (sic Amended) Act provides for time-limits within which an arbitral award is to be made. In HitendraVishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 atp. 633 : 1994 SCC (Cri) 1087, this Court stated: (SCC p. 633, para26)”26. … (iii) Every litigant has a vested right in substantivelaw but no such right exists in procedural law.(iv) A proceduralstatute should not generally speaking be applied retrospectivelywhere the result would be to create new disabilities or obligationsor to impose new duties in respect of transactions alreadyaccomplished.(v) A statute which not only changes the procedurebut also creates new rights and liabilities shall be construed to beprospective in operation, unless otherwise provided, eitherexpressly or by necessary implication.” It is, inter alia, becausetimelines for the making of an arbitral award have been laid downfor the first time in Section 29-A of the Amendment (sic Amended)Act that parties were given the option to adopt such timelineswhich, though procedural in nature, create new obligations inrespect of a proceeding already begun under the unamended Act.This is, of course, only one example of why parties may otherwiseagree and apply the new procedure laid down by the AmendmentAct to arbitral proceedings that have commenced before it cameinto force.] In stark contrast to the first part of Section 26 is thesecond part, where the Amendment Act is made applicable “inrelation to” arbitral proceedings which commenced on or afterthe date of commencement of the Amendment Act. What isconspicuous by its absence in the second part is any reference toSection 21 of the 1996 Act. Whereas the first part refers only toarbitral proceedings before an Arbitral Tribunal, the second part refers to court proceedings “in relation to” arbitral proceedings,and it is the commencement of these court proceedings that isreferred to in the second part of Section 26, as the words “inrelation to the arbitral proceedings” in the second part are notcontrolled by the application of Section 21 of the 1996 Act.

39. Section 26, therefore, bifurcates proceedings, as has beenstated above, with a great degree of clarity, into two sets ofproceedings — arbitral proceedings themselves, and courtproceedings in relation thereto. The reason why the first part ofSection 26 is couched in negative form is only to state that theAmendment Act will apply even to arbitral proceedings commencedbefore the amendment if parties otherwise agree. If the first partof Section 26 were couched in positive language (like the secondpart), it would have been necessary to add a proviso stating thatthe Amendment Act would apply even to arbitral proceedingscommenced before the amendment if the parties agree. In eithercase, the intention of the legislature remains the same, the negativeform conveying exactly what could have been stated positively,with the necessary proviso. Obviously, “arbitral proceedings” havingbeen subsumed in the first part cannot re-appear in the secondpart, and the expression “in relation to arbitral proceedings” would,therefore, apply only to court proceedings which relate to thearbitral proceedings. The scheme of Section 26 is thus clear : thatthe Amendment Act is prospective in nature, and will apply tothose arbitral proceedings that are commenced, as understood bySection 21 of the principal Act, on or after the Amendment Act,and to court proceedings which have commenced on or after theAmendment Act came into force.”

3.5 It is further submitted that it is specifically held that the phrase‘in relation to arbitral proceedings’ appearing in the second part of Section26 refers to commencement of court proceedings and are not controlledby Section 21 of the principal Act. It is submitted that in suchcircumstances, the relevant date so far as the applicability of Section11(6A) is concerned, is not the date of invocation of arbitration but thedate of commencement of judicial proceedings before a court underSection 11. It is submitted that therefore viewed in this light, the findingof the High Court that Section 11(6A) shall not be applicable in thepresent case is clearly erroneous.

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A3.6 It is submitted that in the case of Union of India Vs. ParmarConstruction Company, (2019) 15 SCC 682 (Two Judge Bench)(paras 25-27), without noticing the judgment in BCCI (supra), acoordinate Bench has held, relying on Section 21, that, the relevant datefor applicability of Section 26 of the Amendment Act, 2015 is the datewhen request for appointment of arbitrator was made. It is furtherBsubmitted that this has been followed in the judgment in the case ofUnion of India Vs. Pradeep Vinod Construction Company, (2020)2 SCC 464 (Three Judge Bench), which also did not refer to the caseof BCCI (supra) but has only followed the judgment in ParmarConstruction Company (supra).C3.7 It is submitted that the judgment in BCCI (supra) wasrendered in the context of Section 36 of the Act and not in the context ofSection 11. Both Pradeep Vinod Construction Company (supra)and Parmar Construction Company (supra) were cases relating toSection 11. However, neither of the case distinguished the second partDof Section 26 of the Amendment Act, 2015 as relating to judicialproceedings. It is further submitted that, in Parmar ConstructionCompany (supra), reliance was placed on Aravali Power CompanyPrivate Limited Vs. Era Infra Engineering Limited, (2017) 15SCC 32 (Para 22), to examine the effect of Section 21 of the principalAct read with Section 26 of the Amendment Act, 2015. It is submittedEthat the reliance placed on Aravali Power Company Private Limited(supra) in the case of Parmar Construction Company (supra) iscompletely misplaced. Firstly, neither Section 21 of the principal Act norSection 26 of the Amendment Act, 2015 were discussed in AravaliPower Company Private Limited (supra). Secondly, the decision inFAravali Power Company Private Limited (supra) did not concernjudicial proceedings but applications filed before the arbitrator challenginghis qualification under Sections 12 and 13. It is submitted that therefore,the second part of Section 26 did not come for consideration at all.

3.8 It is submitted that similarly, the reliance placed in ParmarGConstruction Company (supra) on S.P. Singla ConstructionsPrivate Limited Vs. State of Himachal Pradesh and Anr., (2019) 2SCC 488 (Para 16) is again misplaced because in S.P. SinglaConstructions Private Limited (supra) issue also involved wasdisqualifications of an arbitrator under Section 12 and consequent filingof Section 11 petitions prior to coming into force of the Amendment Act,H2015.

3.9 It is submitted that on the other hand, this Court in SsangyongEngineering and Construction Company Limited Vs. NationalHighways Authority of India (NHAI), (2019) 15 SCC 131 (Para19), has held that, Section 34 as amended in 2015, will apply only toSection 34 applications that have been made to the Court on or after23.10.2015, irrespective of the fact that the arbitration proceedings mayhave commenced prior to that date and while doing so, this Court followedthe judgment in BCCI (supra).

3.10 It is submitted that in order to get over the judgment in BCCI(supra), the Parliament omitted Section 26 of the Amendment Act, 2015w.e.f. 23.10.2015 by way of Section 15 of the Arbitration and Conciliation(Amendment) Act, 2019, which was notified on 30.08.2019. It is furthersubmitted that the validity of Section 15 was inter alia challenged inHindustan Construction Company Limited and Anr. Vs. Union ofIndia and Ors., (2020) 17 SCC 324 (Three Judge Bench). It issubmitted that this Court held that, though the basis for the judgment inBCCI (supra) was removed, but still found that Section 15 of theAmendment Act, 2019 was unconstitutional as being manifestly arbitrary.What is noteworthy is that despite having noticed that the JusticeSrikrishna committee report held that the Amendment Act, 2015 mustapply to arbitrations, which commenced on or after 23.10.2015 and relatedcourt proceedings, the Court struck down the amendment and resurrectedthe law as stated in BCCI (supra). The Court emphatically held that, “66. The result is that Kochi Cricket [BCCI v. Kochi Cricket (P)Ltd., (2018) 6 SCC] judgment will therefore continue to apply soas to make applicable the salutary amendments made by the 2015Amendment Act to all court proceedings initiated after 23-10-2015.”

3.11 It is further submitted that the judgment in BCCI (supra),so far as it differentiated between arbitral proceedings and courtproceedings, was followed in Government of India Vs. VedantaLimited, (2020) 10 SCC 1 (Three Judge Bench), and the Courtemphasized that the Amendment Act, 2015 would be applicable to courtproceedings arising out of arbitration proceedings, irrespective of whethersuch arbitration proceedings commenced prior to or after the AmendmentAct, 2015.

3.12 It is further submitted that the judgment in BCCI (supra)has also been followed in Patel Engineering Limited Vs. North A

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AEastern Electric Power Corporation Limited, (2020) 7 SCC 167(Para 15) (Three Judge Bench).

3.13 In light of this brief conspectus of the aforesaid decisions, itis submitted that, the decision in BCCI (supra), regarding judicialproceedings referred to in Section 26 not being controlled by Section 21Bof the principal Act, has been followed by a coordinate bench of thisHon’ble Court in Ssangyong Engineering and ConstructionCompany Limited (supra) and the three-judge benches in HindustanConstruction Company Limited and Anr.(supra), Vedanta Limited(supra) and Patel Engineering Limited(supra). It is further submittedthat on the other hand, the decision by the coordinate bench in ParmarCConstruction Company (supra) was rendered in ignorance of thedecision in BCCI (supra). Further, the coordinate bench in ParmarConstruction Company (supra) placed reliance on the decisions inAravali Power Company Private Limited(supra) and S.P. SinglaConstructions Private Limited (supra), neither of which concernedDjudicial proceedings as they were rendered on the issue of qualificationor disqualification of the arbitrator. It is further submitted that the decisionin the case of Parmar Construction Company (supra) was followedby the three-judge bench in Pradeep Vinod Construction Company(supra) without any reference to BCCI (supra).

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3.14 It is therefore, the submission on behalf of the appellant thatthe decision of this Court in the case of BCCI (supra) was binding onthe coordinate bench which rendered the decision in the case of ParmarConstruction Company (supra), this Court has not noticed the saiddecision and therefore, the decision in the case of Parmar ConstructionFCompany (supra) can be said to be per incuriam and/or sub silentio.It is submitted that therefore, the decision in the case of ParmarConstruction Company (supra) being per incuriam, the larger Bench,which rendered the decision in the case of Pradeep Vinod ConstructionCompany (supra) ought not to have placed reliance on ParmarConstruction Company (supra) . Therefore, relying upon the decisionGof this Court in the case of BCCI (supra), which has been subsequentlyfollowed in other decisions referred to hereinabove, it is prayed to allowthe present appeal.

4. Present appeal is vehemently opposed by Shri Padmesh Mishra,learned counsel appearing on behalf of the respondents.H

4.1 It is vehemently submitted by the learned counsel appearingon behalf of the respondents that as such the Hon’ble High Court hasrightly dismissed the Section 11(6) application by observing and holdingthat the pre-amendment Arbitration Act, 2015 shall be applicable.

4.2 It is submitted that in the present case, admittedly the noticeinvoking the arbitration was issued on 20.12.2013, i.e., much prior to theAmendment Act, 2015. It is further submitted that admittedly theapplication under Section 11(6) of the Act, 1996 was preferred and filedon 27.04.2016, i.e., much after the Amendment Act, 2015 came intoforce. It is submitted that therefore, taking into consideration section 26of the Amendment Act, 2015 and when the notice invoking the arbitrationwas issued much prior to the Amendment Act, 2015, therefore, thearbitration proceedings can be said to have commenced on 20.12.2013and therefore, pre-Amendment Act, 2015 shall be applicable and not theAmendment Act, 2015.

4.3 Now, insofar as the reliance placed upon the decision of thisCourt in the case of BCCI (supra) relied upon on behalf of the appellantis concerned, it is submitted that the decision in the case of BCCI (supra)and the subsequent decisions following the BCCI (supra) are all withrespect to the proceedings under Sections 34 and 36 of the Act, 1996. Itis submitted that therefore, considering Sections 34 and 36 proceedingsas judicial/court proceedings, this Hon’ble Court has interpreted Section26, bifurcating Section 26 into two parts and to that it is observed andheld that with respect to judicial proceedings under Sections 34 and 36,the Amendment Act, 2015 shall be applicable. It is submitted that, however,on the other hand, there is a direct decision of this Hon’ble Court in thecase of Parmar Construction Company (supra) dealing with the veryissue of application under Section 11(6) of the Act, 1996 and in the saiddecision it is specifically observed and held that so far as the applicationunder Section 11(6)of the Act, 1996 is concerned, in case the noticeinvoking the arbitration is invoked prior to the Amendment Act, 2015,pre Amendment Act, 2015 shall be applicable. It is submitted that assuch the decision of this Court in the case of Parmar ConstructionCompany (supra), which is a Two Judge Bench decision has beensubsequently considered and followed by a Three Judge Bench in thecase of Pradeep Vinod Construction Company (supra).

4.4 It is further submitted that in the case of BCCI (supra), thisCourt has unequivocally held that from the scheme contained in Section A

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A26 of the Amendment Act, it is clear that the Amendment Act isprospective in nature and will only apply to those arbitral proceedingsthat commence in terms of Section 21 of the Act, on or after theAmendment Act, and to Court proceedings, which have commenced onor after the Amendment Act came into force. It is submitted that itnecessarily follows that in such cases, where the arbitration proceedingsBhave been initiated prior to 23.10.2015, it will continue to be governed bythe legal position as it existed prior to the coming into force of theAmendment Act, 2015.

4.5 It is submitted that as submitted hereinabove, the judgments inParmar Construction Company (supra) and Pradeep VinodCConstruction Company (supra) are with respect to the applicationsunder Section 11(6) and the decision of this Court in the case of BCCI(supra) is with respect to the proceedings under Sections 34 and 36 andeven the observations made in paragraphs 37 to 39 are with respect tothe “court proceedings” and therefore, the aforesaid two decisions cannotDbe said to be in conflict with the judgment in the case of BCCI (supra).

4.6 It is submitted that the reliance by the appellant on theexpression “court proceedings in relation thereto” as it occurs in Section26 of the Amendment Act, 2015 to contend that applications under Section11 of the Act, 1996 would fall in such category is misplaced. It is submittedEthat it must be borne in mind that this Hon’ble Court was called upon tointerpret Section 26 of the Amendment Act, 2015, to answer as to whetherapplications under Section 36, which was amended by the AmendmentAct, 2015 would apply in its amended form in respect of Section 34/36proceedings initiated before the commencement of the Amendment Act,2015. It is submitted that, thus, any observation in BCCI (supra) oughtFto be understood in the context in which the issue arose therein and thesame cannot be said to have laid down the law as regards applicabilityof the Amendment Act, 2015 to Section 11 applications.

4.7 It is submitted that the judgment in Parmar ConstructionCompany (supra) follows the judgment of this Hon’ble Court in S.P.GSingla Constructions Private Limited (supra) in order to concludethat Section 11 petitions in respect of proceedings initiated prior to thecommencement of the Amendment Act, 2015, would be governed bythe pre-amended legal position. It is submitted that the said judgment inS.P. Singla Constructions Private Limited (supra) in turn followsHthe observations of this Hon’ble Court in BCCI (supra).

4.8 It is further submitted that the issue as to whether theAmendment Act, 2015 would apply to proceedings under Section 11,with respect to arbitration commenced prior to 23.10.2015 (the date onwhich the Amendment Act, 2015 came into force) has been elaboratelydealt with by a Three Judge Bench in the case of S.P. SinglaConstructions Private Limited (supra),after analysing threadbarethe judgment in BCCI (supra) to conclude as under:-

“16. Considering the facts and circumstances of the present case,we are not inclined to go into the merits of this contention of theappellant nor examine the correctness or otherwise of the aboveview taken by the Delhi High Court in Ratna Infrastructure Projectscase [Ratna Infrastructure Projects (P) Ltd. v. Meja Urja Nigam(P) Ltd., 2017 SCC OnLine Del 7808]; suffice it to note that asper Section 26 of the Arbitration and Conciliation (Amendment)Act, 2015, the provisions of the amended 2015 Act shall not applyto the arbitral proceedings commenced in accordance with theprovisions of Section 21 of the principal Act before thecommencement of the Amendment Act unless the partiesotherwise agree. In the facts and circumstances of the presentcase, the proviso in Clause (65) of the general conditions of thecontract cannot be taken to be the agreement between the partiesso as to apply the provisions of the amended Act. As per Section26 of the Act, the provisions of the Amendment Act, 2015 shallapply in relation to arbitral proceedings commenced on or afterthe date of commencement of the Amendment Act, 2015 (w.e.f.23-10-2015). In the present case, arbitration proceedingscommenced way back in 2013, much prior to coming into force ofthe amended Act and therefore, provisions of the amended Actcannot be invoked.

17. In BCCI v. Kochi Cricket (P) Ltd. [(2018) 6 SCC 287], thisCourt has held that the provisions of the Amendment Act, 2015(with effect from 23-10-2015) cannot have retrospective operationin the arbitral proceedings already commenced unless the partiesotherwise agree and held as under :

…………………………..”

4.9 It is submitted that it is a settled law that arbitration commencesupon invocation of the notice as per Section 21 of the Act, 1996. It is

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Asubmitted that therefore, in a case where the notice invoking the arbitrationhas been issued prior to the Amendment Act, 2015, on true interpretationof Section 26 read with Section 21 of the Amendment Act, 2015, theAmendment Act, 2015 shall not be applicable and the arbitration wouldbe governed by the unamended provision.

B4.10 Making above submissions and relying upon the decisions ofthis Court in the case of Parmar Construction Company (supra);Pradeep Vinod Construction Company (supra) and S.P. SinglaConstructions Private Limited (supra), it is prayed to dismiss thepresent appeal.C5. We have heard learned counsel for the respective parties atlength.

The short question which is posed for the consideration of thisCourt is, in relation to the arbitration proceedings, in a case where thenotice invoking arbitration is issued prior to the Amendment Act, 2015,Dthe old Act shall be applicable (pre-amendment 2015) or the new Act?

6. While considering the aforesaid issue the relevant provisions ofthe Amendment Act, 2015 are required to be referred to, namely, Sections11(6A), 21 and 26, which are as under:

“(6A) The Supreme Court or, as the case may be, the High Court,Ewhile considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment,decree or order of any Court, confine to the examination of theexistence of an arbitration agreement.

21. Commencement of arbitral proceedings – Unless otherwiseFagreed by the parties, the arbitral proceedings in respect of aparticular dispute commence on the date on which a request forthat dispute to be referred to arbitration is received by therespondent.

26. Act not to apply to pending arbitral proceedings – NothingGcontained in this Act shall apply to the arbitral proceedingscommenced, in accordance with the provisions of Section 21 ofthe principal Act, before the commencement of this Act unlessthe parties otherwise agree but this Act shall apply in relation toarbitral proceedings commenced on or after the date ofcommencement of this Act.”H

6.1 Section 11(6A) has been inserted by Amendment Act, 2015,by which the powers of the Court dealing with an application underSection 11(6) of the Act are restricted and as per section 11(6A), thepowers of the Court while deciding application under Section 11(6) ofthe Act are confined to the examination of the existence of an arbitrationagreement, which powers were not restricted in the pre-amendmentAct, 2015. However, Section 26 of the Amendment Act, 2015 providesthat nothing contained in this Act shall apply to the arbitral proceedingscommenced, in accordance with the provisions of Section 21 of theprincipal Act, before the commencement of this Act unless the partiesotherwise agree. At this stage, it is required to be noted that as perSection 21 of the principal Act, unless otherwise agreed by the parties,the arbitral proceedings in respect of a particular dispute commence onthe date on which a request for that dispute to be referred to the arbitrationis received by the respondent. Therefore, as per section 21 of the principalAct, the arbitral proceedings can be said to have commenced on thedate on which a request for the dispute to be referred to the arbitrationis received by the respondent. Therefore, as per section 21 of the principalAct the arbitral proceedings can be said to have commenced on the dateon which a request for the dispute to be referred to the arbitration isreceived by the respondent. At this stage, it is required to be noted thatby Amendment Act, 2015, Sections 34 and 36 of the Arbitration Act alsocame to be amended and the interference of the Court in challenge tothe award has been restricted and/or narrowed down.

7. The question of applicability of the Arbitration Amendment Act,2015 fell for consideration before this Court in catena of decisions, fewof them are as under:

i) In the case of Mayawati Trading v. Pradyut Debbarman,(2019) 8 SCC 714, it is observed and held that the position oflaw that prevails after insertion of section 11(6A) is that SupremeCourt or, as the case may be, the High Court, while consideringany application under Sections 11(4) to 11(6) is to confine itself toexamination of existence of arbitration agreement, nothing more,nothing less, and leave all other preliminary issues to be decidedby arbitrator;

ii) In the case of BCCI (supra), while interpreting section 26 ofthe Amended Act, 2015, this Court has observed in paragraphs 37to 39 as under:

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“37. What will be noticed, so far as the first part is concerned,which states—

“26. Act not to apply to pending arbitral proceedings.— Nothing contained in this Act shall apply to the arbitralproceedings commenced, in accordance with the provisionsof Section 21 of the principal Act, before the commencementof this Act unless the parties otherwise agree.…”

is that: (1) “the arbitral proceedings” and their commencementis mentioned in the context of Section 21 of the principal Act;(2) the expression used is “to” and not “in relation to”; and (3)parties may otherwise agree. So far as the second part ofSection 26 is concerned, namely, the part which reads, “… butthis Act shall apply in relation to arbitral proceedingscommenced on or after the date of commencement of thisAct” makes it clear that the expression “in relation to” is used;and the expression “the” arbitral proceedings and “in accordancewith the provisions of Section 21 of the principal Act” isconspicuous by its absence.

38. That the expression “the arbitral proceedings” refers toproceedings before an Arbitral Tribunal is clear from the headingof Chapter V of the 1996 Act, which reads as follows:

“Conduct of arbitral proceedings”

The entire chapter consists of Sections 18 to 27 dealing withthe conduct of arbitral proceedings before an Arbitral Tribunal.What is also important to notice is that these proceedings aloneare referred to, the expression “to” as contrasted with theexpression “in relation to” making this clear. Also, the referenceto Section 21 of the 1996 Act, which appears in Chapter V,and which speaks of the arbitral proceedings commencing onthe date on which a request for a dispute to be referred toarbitration is received by the respondent, would also make itclear that it is these proceedings, and no others, that form thesubject-matter of the first part of Section 26. Also, since theconduct of arbitral proceedings is largely procedural in nature,parties may “otherwise agree” and apply the Amendment Actto arbitral proceedings that have commenced before theAmendment Act came into force. [ Section 29-A of the Amend

(sic Amended) Act provides for time-limits within which anarbitral award is to be made. In Hitendra Vishnu Thakur v.State of Maharashtra, (1994) 4 SCC 602 at p. 633 : 1994SCC (Cri) 1087, this Court stated: (SCC p. 633, para26)”26. … (iii) Every litigant has a vested right in substantivelaw but no such right exists in procedural law.(iv) A proceduralstatute should not generally speaking be applied retrospectivelywhere the result would be to create new disabilities orobligations or to impose new duties in respect of transactionsalready accomplished.(v) A statute which not only changesthe procedure but also creates new rights and liabilities shallbe construed to be prospective in operation, unless otherwiseprovided, either expressly or by necessary implication.” It is,inter alia, because timelines for the making of an arbitral awardhave been laid down for the first time in Section 29-A of theAmendment (sic Amended) Act that parties were given theoption to adopt such timelines which, though procedural innature, create new obligations in respect of a proceeding alreadybegun under the unamended Act. This is, of course, only oneexample of why parties may otherwise agree and apply thenew procedure laid down by the Amendment Act to arbitralproceedings that have commenced before it came into force.]In stark contrast to the first part of Section 26 is the secondpart, where the Amendment Act is made applicable “in relationto” arbitral proceedings which commenced on or after the dateof commencement of the Amendment Act. What isconspicuous by its absence in the second part is any referenceto Section 21 of the 1996 Act. Whereas the first part refersonly to arbitral proceedings before an Arbitral Tribunal, thesecond part refers to court proceedings “in relation to” arbitralproceedings, and it is the commencement of these courtproceedings that is referred to in the second part of Section26, as the words “in relation to the arbitral proceedings” in thesecond part are not controlled by the application of Section 21of the 1996 Act.

39. Section 26, therefore, bifurcates proceedings, as has beenstated above, with a great degree of clarity, into two sets ofproceedings — arbitral proceedings themselves, and courtproceedings in relation thereto. The reason why the first part

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Aof Section 26 is couched in negative form is only to state thatthe Amendment Act will apply even to arbitral proceedingscommenced before the amendment if parties otherwise agree.If the first part of Section 26 were couched in positive language(like the second part), it would have been necessary to add aproviso stating that the Amendment Act would apply even toBarbitral proceedings commenced before the amendment if theparties agree. In either case, the intention of the legislatureremains the same, the negative form conveying exactly whatcould have been stated positively, with the necessary proviso.Obviously, “arbitral proceedings” having been subsumed in theCfirst part cannot re-appear in the second part, and theexpression “in relation to arbitral proceedings” would, therefore,apply only to court proceedings which relate to the arbitralproceedings. The scheme of Section 26 is thus clear: that theAmendment Act is prospective in nature, and will apply to thosearbitral proceedings that are commenced, as understood byDSection 21 of the principal Act, on or after the AmendmentAct, and to court proceedings which have commenced on orafter the Amendment Act came into force.”

Thus, in the case of BCCI (supra), it is observed and held thatthe Amendment Act, 2015 is prospective in nature. However, it isrequired to be noted that in the case of BCCI (supra), this Courtwas considering the proceedings under sections 34 and 36 of theAmendment Act, 2015 and to that while interpreting section 26, itis observed that the Amendment Act is prospective in nature, andwill apply even to those arbitral proceedings that are commenced,as understood by section 21 of the principal Act, prior to theAmendment Act, and to Court proceedings which havecommenced on or after the Amendment Act came into force.

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iii) In the case of Parmar Construction Company (supra), inrelation to application under section 11(6) of the Act, in a casewhere notice for arbitration is received/invoked prior to theAmendment Act, 2015, but the application under section 11(6) ofthe Act is filed post Amendment Act, 2015, it is observed inparagraphs 25 to 28 as under:

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“25. As on 1-1-2016, the 2015 Amendment Act was gazettedand according to Section 1(2) of the 2015 Amendment Act, it H

was deemed to have come into force on 23-10-2015. Section21 of the 1996 Act clearly envisages that unless otherwiseagreed by the parties, the arbitral proceedings in respect of adispute shall commence from the date on which a request forthat dispute to be referred to arbitration is received by therespondent and the plain reading of Section 26 of the 2015Amendment Act is self-explicit, leaves no room forinterpretation. Sections 21 and 26 of the 1996 Act/the 2015Amendment Act relevant for the purpose are extractedhereunder:

“21. Commencement of arbitral proceedings.—Unlessotherwise agreed by the parties, the arbitral proceedings inrespect of a particular dispute commence on the date onwhich a request for that dispute to be referred to arbitrationis received by the respondent.

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26. Act not to apply to pending arbitral proceedings.—Nothing contained in this Act shall apply to the arbitralproceedings commenced, in accordance with the provisionsof Section 21 of the principal Act, before the commencementof this Act unless the parties otherwise agree but this Actshall apply in relation to arbitral proceedings commencedon or after the date of commencement of this Act.”

26. The conjoint reading of Section 21 read with Section 26leaves no manner of doubt that the provisions of the 2015Amendment Act shall not apply to such of the arbitralproceedings which have commenced in terms of the provisionsof Section 21 of the principal Act unless the parties otherwiseagree. The effect of Section 21 read with Section 26 of the2015 Amendment Act has been examined by this Court inAravali Power Co. (P) Ltd. v. Era Infra Engg. Ltd. [AravaliPower Co. (P) Ltd. v. Era Infra Engg. Ltd., (2017) 15 SCC32 : (2018) 2 SCC (Civ) 642] and taking note of Section 26 ofthe 2015 Amendment Act laid down the broad principles asunder : (SCC p. 53, para 22)

“22. The principles which emerge from the decisionsreferred to above are:

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22.1. In cases governed by the 1996 Act as it stood beforethe Amendment Act came into force:

22.1.1. The fact that the named arbitrator is an employeeof one of the parties is not ipso facto a ground to raise apresumption of bias or partiality or lack of independence onhis part. There can however be a justifiable apprehensionabout the independence or impartiality of an employeearbitrator, if such person was the controlling or dealingauthority in regard to the subject contract or if he is a directsubordinate to the officer whose decision is the subject-matter of the dispute.

22.1.2. Unless the cause of action for invoking jurisdictionunder clauses (a), (b) or (c) of sub-section (6) of Section11 of the 1996 Act arises, there is no question of the ChiefJustice or his designate exercising power under sub-section(6) of Section 11.

22.1.3. The Chief Justice or his designate while exercisingpower under sub-section (6) of Section 11 shall endeavourto give effect to the appointment procedure prescribed inthe arbitration clause.

22.1.4. While exercising such power under sub-section (6)of Section 11, if circumstances exist, giving rise to justifiabledoubts as to the independence and impartiality of the personnominated, or if other circumstances warrant appointmentof an independent arbitrator by ignoring the procedureprescribed, the Chief Justice or his designate may, forreasons to be recorded ignore the designated arbitrator andappoint someone else.

22.2. In cases governed by the 1996 Act after theAmendment Act has come into force : If the arbitrationclause finds foul with the amended provisions, theappointment of the arbitrator even if apparently in conformitywith the arbitration clause in the agreement, would be illegaland thus the court would be within its powers to appointsuch arbitrator(s) as may be permissible.”

which has been further considered in S.P. SinglaConstructions (P) Ltd. case [S.P. Singla Constructions (P)

Ltd. v. State of H.P., (2019) 2 SCC 488 : (2019) 1 SCC (Civ)748] : (SCC p. 495, para 16)

“16. Considering the facts and circumstances of the presentcase, we are not inclined to go into the merits of this contentionof the appellant nor examine the correctness or otherwise ofthe above view taken by the Delhi High Court in RatnaInfrastructure Projects case [Ratna InfrastructureProjects (P) Ltd. v. Meja Urja Nigam (P) Ltd., 2017 SCCOnLine Del 7808] ; suffice it to note that as per Section 26of the Arbitration and Conciliation (Amendment) Act, 2015,the provisions of the amended 2015 Act shall not apply tothe arbitral proceedings commenced in accordance withthe provisions of Section 21 of the principal Act before thecommencement of the Amendment Act unless the partiesotherwise agree. In the facts and circumstances of thepresent case, the proviso in Clause (65) of the generalconditions of the contract cannot be taken to be theagreement between the parties so as to apply the provisionsof the amended Act. As per Section 26 of the Act, theprovisions of the 2015 Amendment Act shall apply in relationto arbitral proceedings commenced on or after the date ofcommencement of the 2015 Amendment Act (w.e.f. 23- 10-2015). In the present case, arbitration proceedingscommenced way back in 2013, much prior to coming intoforce of the amended Act and therefore, provisions of theamended Act cannot be invoked.”

27. We are also of the view that the 2015 Amendment Actwhich came into force i.e. on 23-10-2015, shall not apply tothe arbitral proceedings which have commenced in accordancewith the provisions of Section 21 of the principal Act, 1996before the coming into force of the 2015 Amendment Act,unless the parties otherwise agree.

28. In the instant case, the request was made and received bythe appellants in the appeal concerned much before the 2015Amendment Act came into force. Whether the application waspending for appointment of an arbitrator or in the case ofrejection because of no claim as in the instant case forappointment of an arbitrator including change/substitution of

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Aarbitrator, would not be of any legal effect for invoking theprovisions of the 2015 Amendment Act in terms of Section 21of the principal Act, 1996. In our considered view, theapplications/requests made by the respondent contractorsdeserve to be examined in accordance with the principal Act,1996 without taking resort to the 2015 Amendment Act whichBcame into force from 23-10-2015.”

In the case of Parmar Construction Company (supra), thisCourt heavily relied upon para 16 of the decision in the case ofS.P. Singla Constructions Private Limited (supra).

Civ) Then comes the decision of this Court in the case of PradeepVinod Construction Company (supra). In the said case, a threeJudge Bench of this Court has followed the decision in the caseof Parmar Construction Company (supra) and in the saiddecision it is specifically observed that unamended 1996 Act, i.e.,prior to Amendment Act, 2015 for appointment of arbitrator shallDbe applicable where the request to refer the dispute to arbitrationwas made before 2015 amendment came into effect.

v) In the case of Ssangyong Engg. & Construction Co. Ltd.(supra), in which the decision in the case of BCCI (supra) wasfollowed, it is observed and held that section 34, as amended, willEapply to only section 34 applications that have been made to theCourt on or after 23.10.2015 irrespective of the fact that thearbitration proceedings may have commenced prior to that date.(See para 19). However, it is required to be noted that in the caseof Ssangyong Engg. & Construction Co. Ltd. (supra), this CourtFhas followed the decision in the case of BCCI (supra) (See para17).

8. It is the case on behalf of the appellant that therefore in thecase of BCCI (supra), the decision which has been subsequentlyfollowed in the case of Ssangyong Engg. & Construction Co. Ltd.G(supra) and other decisions, it has been specifically observed and heldthat the Amendment Act, 2015 is prospective in nature. It is the case onbehalf of the appellant that while taking a contrary view in the cases ofParmar Constructions Company (supra) and Pardeep VinodConstruction Company (supra), this Court had not noticed and/orconsidered the binding decision of this Court in the case of BCCI (supra)H

and therefore the decisions of this Court in the cases of ParmarConstructions Company (supra) and Pardeep Vinod ConstructionCompany (supra) are per incuriam. It is also the case on behalf of theappellant that so far as the decision in the case of Aravali PowerCompany Private Limited (supra), which was considered by this Courtin the case of Parmar Constructions Company (supra) is concerned,in the said decision also, there is no reference to the decision in the caseof BCCI (supra). It is also the case on behalf of the appellant thatthough in the case of S.P. Singla Constrictions Private Limited (supra),there is a reference to the decision in the case of BCCI (supra), but inthe said decision paragraphs 38 and 39 are not referred to and/orconsidered and except reproduction of para 37, there is no furtherdiscussion in the case of BCCI (supra). Therefore, it is the specificcase on behalf of the appellant that as the decisions in the cases ofParmar Constructions Company (supra) and Pardeep VinodConstruction Company (supra) are per incuriam, we must hold thatin the present case Amendment Act, 2015 shall be applicable and thereforethe High Court has committed a very serious error in opining on accordand satisfaction which is not permissible as per the Amendment Act,2015, i.e., Section 11(6A).

9. Submission on behalf of the appellant, as above, seems to beattractive but has no substance. This Court is required to consider whetherthe decision in the cases of Parmar Constructions Company (supra)and Pardeep Vinod Construction Company (supra) can be said to beperincuriam as the decision of this Court in the case of BCCI (supra)has not been considered by this Court in the said decisions. However, ona fair reading of the decisions in the case of BCCI (supra) and theobservations made in paragraphs 37 to 39 and on a fair reading ofdecisions in the cases of Parmar Constructions Company (supra)and Pardeep Vinod Construction Company (supra), we are of theopinion that this Court in the case of BCCI (supra) has held that theArbitration Amendment Act, 2015 is prospective in nature insofar as theproceedings under sections 34 & 36 are concerned. It is required to benoted that in the case of BCCI (supra), application under section 11(6)was not the subject matter and there was no issue before the Court thateven in a case where the notice invoking the arbitration is issued prior tothe Amendment Act, 2015, but the application under section 11(6) isfiled post Amendment Act, 2015, what will be the position and whetherthe old Act will be applicable or the amended Act. On the other hand, AB

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Athe decisions in the case of Parmar Constructions Company (supra)is directly on the point, namely, the application under section 11(6) of theAct. In the case of Parmar Constructions Company (supra), it isspecifically observed and held that in a case where notice invokingarbitration is issued prior to Amendment Act, 2015 and the applicationunder section 11(6) is filed post amendment, as per section 21 of theBprincipal Act, the date of issuance of the notice invoking arbitration shallbe considered as commencement of the arbitration proceedings andtherefore as per section 26 of the Amendment Act, 2015, the AmendedAct, 2015 shall not be applicable and the parties shall be governed by thepre-amendment Act, 2015.C

9.1 The submission on behalf of the appellant, as above, cannotbe accepted for the simple reason that this Court in the case of BCCI(supra) was considering the court proceedings under sections 34 and36. To that, this Court interpreted section 26 in paragraphs 37 to 39,reproduced hereinabove, and held that the Amendment Act is prospectiveDin nature, and will apply to those arbitral proceedings that are commencedas understood by section 21 of the principal Act, on or after theAmendment Act, 2015 and to court proceedings which have commencedon or after the Amendment Act, 2015 came into force. Therefore, anyobservations made by this Court in paragraphs 37 to 39 in the case ofBCCI (supra) shall be understood and construed with respect to courtEproceedings which have commenced on or after the Amendment Actcoming into force, namely, the proceedings under sections 34 & 36.Therefore, the decisions of this Court in the cases of ParmarConstructions Company (supra) and Pardeep Vinod ConstructionCompany (supra) cannot be said to be per incuriam and/or in conflictFwith the decision of this Court in the case of BCCI (supra). As observedhereinabove, in the case of Parmar Constructions Company (supra)which is directly on the point, it is specifically observed and held that the2015 Amendment Act, which came into force w.e.f. 23.10.2015 shallnot apply to the arbitral proceedings which are commenced in accordanceGwith the provisions of section 21 of the principal Act, 1996 before thecoming into force the 2015 Amendment Act, unless parties otherwiseagree (para 27). Similar view has been expressed in the case of S.P.Singla Constructions Private Limited (supra).

10. Applying the law laid down by this Court in the cases ofParmar Constructions Company (supra) and Pardeep VinodH

Construction Company (supra) and S.P. Singla Constructions PrivateLimited (supra) to the facts of the case on hand as in the present casethe notice invoking arbitration clause was issued on 26.12.2013, i.e.,much prior to the Amendment Act, 2015 and the application under Section11(6) of the Act has been preferred/filed on 27.04.2016, i.e., much afterthe amendment Act came into force, the law prevailing prior to theAmendment Act, 2015 shall be applicable and therefore the High Courthas rightly entered into the question of accord and satisfaction and hasrightly dismissed the application under section 11(6) of the Act applyingthe principal Act, namely, the Arbitration and Conciliation Act, 1996,prevailing prior to the Amendment Act, 2015. We are in completeagreement with the view taken by the High Court. It is observed andheld that in a case where the notice invoking arbitration is issued prior tothe Amendment Act, 2015 and the application under Section 11 forappointment of an arbitrator is made post Amendment Act, 2015, theprovisions of pre-Amendment Act, 2015 shall be applicable and not theAmendment Act, 2015.

11. In view of the above and for the reasons stated above, thepresent appeal fails and the same deserves to be dismissed and isaccordingly dismissed. However, in the facts and circumstances of thecase, there shall be no order as to costs.

Divya Pandey(Assisted by : Abhishek Agnihotri and Shevali Monga, LCRAs)

Appeal dismissed.

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