Delhi High Court
Abb India Limited vs Bharat Heavy Electricals Limited on 2 November, 2020
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th October,2020
Pronounced on: 2nd November,2020
+ O.M.P. (T) (COMM.) 48/2020 & I.A. 7876/2020
ABB INDIA LIMITED ..... Petitioner
Through: Ms. Mohna M. Lal, Ms. Geetali
Talukdar and Mr. Debasis Modak, Advs.
versus
BHARAT HEAVY ELECTRICALS LIMITED ..... Respondent
Through: Mr. Atul Shanker Mathur,
Mr. Prabal Mehrotra and Mr. Umang
Katariya, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
1. This petition, under Section 14(1)(a) of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act"),
seeks a declaration that the mandate of Mr. A. Muraleedharan,
Advocate, who was appointed as sole arbitrator by the respondent, to
arbitrate on the disputes between the petitioner and respondent, stands
terminated de jure, and also calls on this Court to appoint a substitute
arbitrator, to continue with the arbitral proceedings.
2. The issue in controversy is purely legal in nature. No detailed
allusion to facts is, therefore, necessary.
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3. In connection with three Letters of Award, dated 4 th November,
2009, whereunder work was awarded, to the petitioner by the
respondent, disputes arose. Clause 33.1 of the General Commercial
Terms and Conditions (hereinafter referred to as "GCC"), governing
the relationship between the petitioner and the respondent, provided
for resolution of such disputes, and read thus:
"33.1 In the event of any dispute or difference arising out of
the execution of the Order/Contract or the respective rights
and liabilities of the parties or in relation to interpretation of
any provision by the Seller/Contract in any manner touching
upon the Order/Contract, such dispute of difference shall
(except as to any matters, the decision of which is specifically
provided for therein) be referred to the arbitration of the
person appointed by the competent authority of the Purchaser.
Subject as aforesaid, the provisions of the Arbitration and
Conciliation Act, 1996 (India) or statutory modifications or
re-enactments thereof and the rules made thereunder and for
the time being in force shall apply to the arbitration
proceedings under this clause."
4. The Senior Deputy General Manager (hereinafter referred to as
"the Senior DGM") in the office of the respondent wrote, on 14th
March, 2014, to the Executive Director of the respondent (who was
the "competent authority" within the meaning of Clause 33.1 of the
GCC), alleging defaults on the petitioner's part, and calling on the
Executive Director (hereinafter referred to as "ED") to appoint an
arbitrator to adjudicate the claims of the respondent. A copy of the
letter was marked to the petitioner, as "counter party". The petitioner,
vide response dated 15th March, 2014, denied the allegations. The ED
of the respondent, thereupon, appointed Mr. Varinder Pandhi, Ex ED
(HEEP) of the respondent as the sole arbitrator, to arbitrate on the
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dispute. Mr. Pandhi accepted the assignment, vide letter dated 22nd
April, 2014, whereafter Statement of Claim was filed, by the
respondent, before Mr. Pandhi on 4th June, 2014, claiming ₹
7,38,61,975.43, along with interest, from the petitioner. The
petitioner filed a counterclaim, for ₹ 1,08,42,788/-, along with
interest.
5. Proceedings commenced before Mr. Pandhi, and continued, till,
vide e-mail dated 2nd May, 2017, Mr. Pandhi circulated, to the
petitioner and respondent, "final issues", framed by him. It is alleged
that the e-mail did not bear the signatures of Mr. Pandhi. The
petitioner responded, vide e-mail dated 5th May, 2017, addressed to
Mr. Pandhi, pointing out that the issues, as agreed between the
petitioner and respondent, had not been incorporated in the list of
issues framed by him. Mr. Pandhi was, therefore, requested to
incorporate the said issues.
6. Mr. Pandhi responded only vide e-mail dated 16th April, 2018,
stating that the issues framed were filed, and requesting the parties to
fix a convenient date of hearing.
7. Apparently, after 16th April, 2018, there was no
communication, whatsoever, from Mr. Pandhi, despite
communications from the petitioner, to him, on 20th April, 2018, 23rd
April, 2018 and 19th August, 2019, and from the respondent on 18 th
July, 2018, 7th January, 2019 and 4th May, 2019. In these
circumstances, the petitioner submits that the mandate of Mr. Pandhi,
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as sole arbitrator, stood terminated de facto, under Section 14(1)(a) of
the 1996 Act. Further, vide letter dated 11th February, 2020, the
respondent terminated the mandate of Mr. Pandhi, under Section
14(1)(a).
8. Vide letter dated 27th July, 2020, the respondent nominated Mr.
A. Muraleedharan, Advocate, as Sole Arbitrator, to arbitrate on the
disputes between the petitioner and respondent, in place of Mr.
Pandhi. The letter was issued "by way of exercise of the power vested
under Clause 33 of GCC". A copy was marked the petitioner.
9. The petitioner, vide response dated 5th August, 2020, objected
to the appointment of Mr. Muraleedharan as Sole Arbitrator, relying,
for the purpose, on Section 12(5) of the 1996 Act. It was pointed out,
in the said response, that Clause 33.1 of the GCC made "the
provisions of the Arbitration and Conciliation Act, 1996... or
statutory modifications or re-enactments thereof and the rules made
thereunder and for the time being in force" applicable to the arbitral
proceedings. This, it was contended, resulted in all provisions of the
1996 Act, including amendments and re-enactments thereof,
becoming applicable to the arbitral proceedings between the petitioner
and respondent. Section 12(5) of the 1996 Act, as amended (by way
of insertion) by Section 8 of the Arbitration and Conciliation
(Amendment) Act, 2015 (hereinafter referred to as "the 2015
Amendment Act") was also, therefore, applicable. By application of
the said amended Section 12(5), the petitioner contended that the
respondent stood disabled from appointing any substitute arbitrator,
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and the appointment of Mr. Muraleedharan, consequently, stood
vitiated. The respondent was, therefore, requested to withdraw the
letter, dated 27th July, 2020, appointing Mr. Muraleedharan as the
substitute Sole arbitrator, to arbitrate on the disputes between the
parties.
10. The respondent replied, vide communication dated 24th August,
2020, disputing the petitioner's contention, on the ground that the
arbitral proceedings had commenced prior to the amendment of
Section 12(5) of the 1996 Act which, therefore, was not applicable.
Reliance was placed, for the said purpose, on the judgement of the
Supreme Court in Rajasthan Small Industries Corporation Ltd v.
Ganesh Containers Movers Syndicate1. The appointment of Mr.
Muraleedharan as the substitute Sole Arbitrator was, therefore,
contended the respondent, legal and valid.
11. Aggrieved, the petitioner has moved the present petition before
this Court, seeking, as noted hereinabove, a declaration that Mr.
Muraleedharan could not be invested with the mandate to act as Sole
arbitrator, to arbitrate on the disputes between the petitioner and
respondent. As a consequential prayer, this Court has been requested
to appoint a substitute Sole arbitrator, in place of Mr. Pandhi.
12. Notice was issued, in this petition, on 8th September, 2020, on
which date learned counsel for both parties agreed that exchange of
pleadings was not necessary, and that submission of written
1 (2019) 3 SCC 282
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arguments, along with oral hearing, would suffice. Resultantly, I have
heard, at length, Ms. Mohna M. Lal, learned counsel for the petitioner
and Mr. Atul Shanker Mathur, for the respondent. Written
submissions have also been filed by both learned Counsel.
Rival Submissions
13. Relying on the judgements of the Supreme Court in TRF Ltd v.
Energo Engineering Projects Ltd2, Bharat Broadband Network Ltd
v. United Telecoms Ltd3and Perkins Eastman Architects DPC v.
HSCC (India) Ltd4, in conjunction with Section 12(5) of the 1996
Act, Ms. Lal submits that the respondent could not legally appoint a
substitute arbitrator. The arbitration clause, in Rajasthan Small
Industries Corporation1, she submits, is totally different from the
arbitration clause in the present case, and renders the said decision
inapplicable as a precedent in the present matter. Apropos the
contention, of the respondent, that Section 12(5) would not apply as
the arbitral proceedings had commenced prior to the insertion of the
said provision by the 2015 Amendment Act, Ms. Lal places reliance
on the judgement of the Supreme Court in Thyssen Stahlunion
GMBH v. SAIL5 and of a Division Bench of this Court in DDA v.
Bhai Sardar Singh6, to contend that, by making the provisions of the
1996 Act, along with statutory modifications and re-enactments
thereof, for the time being in force, applicable to the agreement
2(2017) 8 SCC 377
3(2019) 5 SCC 755
42019 SCC OnLine SC 1517
5(1999) 9 SCC 334
6ILR (2004) 1 Delhi 341
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between the petitioner and respondent, Clause 33.1 of the GCC, ipso
facto, made Section 12(5) of the 1996 Act, as amended by the 2015
Amendment Act, also applicable. In this context, Ms. Lal sought to
point out that Section 26 of the 2015 Amendment Act was expressly
made subject to agreement, between the parties, to the contrary, as it
used the expression "unless the parties otherwise agree". Ms. Lal
submitted that the stipulation, in Clause 33.1 of the GCC, that the
1996 Act, with its statutory modifications and re-enactments, for the
time being in force, would apply to arbitration proceedings under the
said Clause, amounted to such an agreement, resulting in the 1996
Act, with all its amendments, including the Section 12(5), becoming
applicable to the arbitral proceedings between the petitioner and
respondent, even though they commenced prior to 23rd October, 2015.
Ms Lal also places reliance on the judgements, of learned Single
Judges of this Court in BVSR-KVR (Joint Ventures) v. Rail Vikas
Nigam Ltd7 and Ashiana Infrahomes Pvt Ltd v. Adani Power Ltd8.
14. Responding to the submissions of Ms. Lal, Mr. Mathur, learned
Counsel for the respondent, submitted that the issue in controversy
stands squarely covered, in favour of the respondent, by the
judgement of the Supreme Court in S. P. Singla Constructions (P)
Ltd v. State of Himachal Pradesh9. He also relied on U.O.I. v.
Parmar Construction Company10 and Rajasthan Small Industries
Corporation1. He submitted that para 24 of the report in DDA v. Bhai
72020 (1) Arb LR 580 (Delhi)
82018 (3) Arb LR 270 (Delhi)
9(2019) 2 SCC 488
10(2019) 15 SCC 682
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Sardar Singh6, in fact, militated against the stand being adopted by
Ms Lal. Mr. Mathur submitted that the date of invocation of
arbitration determined the applicability, or otherwise, of Section
12(5), and that, the present arbitration having commenced prior to 23 rd
October, 2015, Section 12(5) was inapplicable. No infirmity,
therefore, submits Mr. Mathur, attaches to the appointment of Mr.
Muraleedharan as the substitute Sole Arbitrator, in place of Mr.
Pandhi.
15. Ms Lal, in rejoinder, submitted that DDA v. Bhai Sardar
Singh6 in no way militated against the stands adopted by her, and
relied, for the purpose, on para-24 of the judgement itself.
Analysis
16. The issue to be determined is, quite obviously, whether Section
12(5) of the 1996 Act would apply to the facts of the present case, or
not.
17. Section 12(5) of the 1996 Act, as inserted by Section 8(ii) of the
2015 Amendment Act, reads thus:
"(5) Notwithstanding any prior agreement to the contrary,
any person whose relationship, with the parties or counsel or
the subject-matter of the dispute, falls under any of the
categories specified in the Seventh Schedule shall be
ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having
arisen between them, waive the applicability of this sub-
section by an express agreement in writing."
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18. Section 26 of the 2015 Amendment Act read as under:
"26. 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 but this Act
shall apply in relation to arbitral proceedings commenced on
or after the date of commencement of this Act."
(Emphasis supplied)
19. The six judgements of the Supreme Court, addressing,
specifically, the applicability of Section 12(5), in the context of the
facts, and cited by one side or the other are, chronologically, TRF2,
S.P. Singla Constructions Pvt Ltd9, Rajasthan Small Industries
Corporation Ltd1, Parmar Construction Company10, Bharat
Broadband Network Ltd3 and Perkins Eastman Architects DPC4.
20. TRF2 is not of particular relevance, as it did not address the
issue of the applicability of Section 12(5), vis-à-vis the
commencement of the arbitration, or the continuance thereof. The
issue before the court, in that case, was quite different. The Managing
Director of the respondent was appointed as sole arbitrator, to
arbitrate on the disputes between the appellant and the respondent.
The appellant challenged the appointment, on the ground that, the
Managing Director, being ineligible to act as arbitrator, in view of
Section 12(5), was also, ipso facto, ineligible to appoint an arbitrator.
The Supreme Court was, therefore, essentially concerned with
whether the inability, statutorily cast by Section 12(5), was restricted
to "inability to act", or extended to "inability to appoint". The
Supreme Court held that a person who had, by operation of law,
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become ineligible to act as arbitrator, was also ineligible to appoint
any arbitrator, as "one cannot have a building without the plinth".
The appellant before the Supreme Court, therefore, succeeded. In the
case before me, Mr. Mathur does not seek to contend that, as Mr.
Muraleedharan was appointed by his client, the appointment was
valid. The contention of Mr. Mathur is, rather, that Section 12(5) does
not apply, at all, as the arbitral proceedings had commenced prior to
23rd October, 2015. TRF2 does not concern itself with such a dispute.
21. S.P. Singla Constructions Pvt Ltd9 is, chronologically, the next
decision in sequence but, before examining the said judgement, it is
necessary to take stock of the judgements of a learned Single Judge of
this Court, in Ratna Infrastructure Projects Pvt Ltd v. Meja Urja
Nigam Pvt Ltd11, for reasons which will become apparent, presently.
22. Disputes arose, in Ratna Infrastructure Projects Pvt Ltd11, in
the context of a contract, dated 21st September, 2010, between the
petitioner and the respondent, in that case. The arbitration clause, in
the agreement between the petitioner and the respondent, read thus:
"Except where otherwise provided for in the contract all
questions and disputes relating to the meaning of the
specifications designs drawings and instructions herein before
mentioned and as of the quality of workmanship or materials
used on the work or as to any other question, claim, right,
matter or thing whatsoever in any way arising out of or
relating the contract designs, drawing specifications,
estimates, instructions orders or these conditions of otherwise
concerning the work or the execution or failure to execute the
same whether arising during the progress of the work or after
the completion or abandonment thereof shall be referred to
11
2017 SCC OnLine Del 7808
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the sole arbitration of the General Manager of NTPC Ltd
(formerly National Thermal Power Corporation Ltd), and if
the General Manager is unable or unwilling to act, to the Sole
Arbitration of some other person appointed by the Chairman
and Managing Director, NTPC Limited (formerly National
Thermal Power Corporation Ltd.) willing to act as such
Arbitrator. There will be noobjection if the Arbitrator so
appointed is an employee of NTPC Limited (formerly
National Thermal Power Corporation Ltd.) and that he had to
deal with the matters to which the contract relates and that in
the course of his duties as such he had expressed views on all
or any of the matters in dispute or difference. The Arbitrator
to whom the matter is originally referred being transferred or
vacating his office or being unable to act for any reason as
aforesaid at the time of such transfer vacation of office or
inability to act, Chairman and Managing Director NTPC
Limited (formerly National Thermal Power Corporation Ltd.)
shall appoint another person to act as arbitrator in accordance
with the terms of the Contract. It is also a term of this
contract that no person other than a person appointed by the
CMD NTPC Ltd. as aforesaid should act as arbitrator and if
for any reason that is not possible the matter is not to be
referred to arbitration at all.
Subject as aforesaid the provisions of Arbitration Act 1940 or
any statutory modification or re-enactment thereof and the
rules made thereunder and for the time being in force shall
apply to the arbitration under this Clause."
(Emphasis supplied)
Vide Amendment No. 1, the contract was amended to, inter alia,
replace the words "Arbitration Act 1940" with the words "Arbitration
and Conciliation Act 1996", in the afore-extracted arbitration clause in
the GCC. The same Amendment also replaced the words "shall be
referred to ... unable", in the arbitration clause, with the words "shall
be referred to the Sole arbitration of the Project-in-Charge concerned
of MUNPL and if the Project-in-Charge is unable..."
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23. The disputes, which were initiated by the petitioner Ratna
Infrastructure Projects Pvt. Ltd (hereinafter referred to as "RIPPL")
were referred to arbitration, and Mr. Narsingh, Project-in-Charge of
the Project, was appointed sole arbitrator. During the course of the
arbitration proceedings, Mr. Narsingh ceased to be the Project-in-
Charge, w.e.f. 1st June, 2016. This prompted RIPPL to contend that
Mr. Narsingh could no longer continue as the sole arbitrator, as the
sole arbitrator was, per contra, required to be the Project In charge.
Applications, preferred before Mr. Narsingh, seeking his recusal as
Sole Arbitrator, were rejected by him, resulting in RIPPL petitioning
this Court. It was contended, by RIPPL, before this Court, that the
respondent Meja Urja Nigam Pvt. Ltd. (MUNPL) ought to have
appointed a substitute arbitrator, in place of Mr. Narsingh, within 30
days from 1st June, 2016. On MUNPL failing to do so, RIPPL moved
this Court.
24. Three days before service of advance notice on MUNPL, Mr.
Ramesh Kher, one of its General Managers, was appointed by
MUNPL as the new Sole Arbitrator. RIPPL contended, however, that
MUNPL had no authority to do so, in view of the law laid down by
the Supreme Court in Datar Switchgears Ltd v. Tata Finance Ltd12 .
It was also contended that, as the arbitration clause provided for
application, to the contract, of the 1996 Act, with all its statutory
modifications and re-enactments, Section 12(5) of the 1996 Act would
also apply. In view thereof, the General Manager of MUNPL, it was
contended, could not be appointed as Sole Arbitrator.
12 (2000) 8 SCC 151
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25. Taking up, first, the issue of applicability of Section 12(5) of
the 1996 Act, to the arbitral proceedings between RIPPL and
MUNPL, this Court, relying on Thyssen Stahlunion GMBH5, held
that the stipulation, in the arbitration clause, that the 1996 Act, with
all its statutory modifications and re-enactments would apply, clearly
operated to make applicable, to the arbitral proceedings, Section 12(5)
of the 1996 Act. By virtue thereof, this Court held that Mr. Kher, who
was serving as the General Manager of MUNPL, was disqualified
from acting as sole arbitrator. This Court, therefore, interceded and
appointed a retired Hon'ble Judge of the Supreme Court has the Sole
Arbitrator, to arbitrate on the disputes between the parties.
26. The Single Bench of this Court, in Ratna Infrastructure
Projects Pvt Ltd11, therefore, clearly held that the stipulation, in the
arbitration clause, that the "1996 Act with all its modifications and re-
enactments... for the time being in force" would apply, resulted in
Section 12(5) of the 1996 Act (as inserted) also becoming applicable,
though the provision was inserted only after the agreement had been
executed between the parties.
27. Having thus noticed Ratna Infrastructure Projects Pvt Ltd11, I
turn to S.P. Singla Constructions Pvt Ltd9.
28. The arbitration clause [Clause 65], of the General Conditions of
Contract between the appellant and the respondent in S. P. Singla
Constructions Pvt Ltd9 read as under:
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"Except where otherwise provided in the contract, all
questions and disputes relating to the meaning of the
specifications, designs drawings and instructions therein
before mentioned and as to the quality of workmanship of
materials used on the work or as to any other question, claim,
right, matter or thing whatsoever in any way arising out of or
relating to the contract designs drawings, specification and
estimates, instructions, orders or these conditions otherwise
concerning the works of the execution or failure to execute
the same whether arising during the progress of the work or
after the completion or abandonment thereof shall be referred
to the sole arbitration of the person appointed by the
Engineer-in-Chief/Chief Engineer, Himachal Pradesh Public
Works Department. It will be no objection to any such
appointment that the arbitrator so appointed is a Government
servant that he had to deal with the matters to which the
contract relates, and that in the course of his duties as
government servant he had expressed views on all or any of
the matters in dispute or different. The arbitrator to whom the
matter is originally referred being transferred or vacating his
office or being unable to act for any reason that the Chief
Engineer, H.P. PWD, at the time of such transfer, vacation of
office or inability to act, shall appoint another person to act as
arbitrator in accordance with the terms of the contract. Such
person shall be entitled to proceed with the reference from the
stage at which it was left by his predecessor. It is also a term
of this contract that no person other than a person appointed
by the Chief Engineer, H.P. PWD should act as arbitrator and
if for any reason that is not possible, the matter is not to be
claim in dispute is Rs. 50,000/- (Rupees fifty thousand) and
above, the arbitrator shall give reasons for the award.
Subject as aforesaid the provision of the Arbitration Act,
1940 or any statutory modification or re-enactment thereof
and the rules made thereunder and for the time being shall
apply to the arbitration proceeding under this clause."
(Emphasis supplied)
29. Disputes arose between the appellant S.P. Singla Constructions
Pvt Ltd. (hereinafter referred to as "SPSCL") and the State of
Himachal Pradesh, relating to a contract awarded to the former by the
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latter. The dispute was referred, on 30th October, 2013, to the
Superintendent Engineer, Arbitration Circle, H.P. PWD, Solan as the
Sole Arbitrator appointed by the Chief Engineer, H.P. PWD in
accordance with Clause (65). The Sole Arbitrator entered upon
reference on 11th November, 2013. SPSCL remained absent from the
arbitration proceedings, and defaulted in filing statement of claim, as a
result of which the proceedings were terminated under Section 25(a)
of the 1996 Act.
30. SPSCL petitioned the High Court, under Section 11(6) of the
1996 Act, praying for appointment of an independent arbitrator. The
petition was dismissed, by the High Court, on the ground that the
remedy, for any party aggrieved by the appointment of the arbitrator
in terms of the agreement between the parties, was by way of a
petition under Section 13 or, after passing of the Award, by way of
challenge under Section 34. Reliance was placed, for so holding, on
the judgement of the Supreme Court in Antrix Corporation Ltd v.
Devas Multimedia (P) Ltd13. The Sole Arbitrator having been
appointed in accordance with Clause (65), the High Court opined that
the appointment could not be challenged under Section 11(6). SPSCL
appealed, against the decision, to the Supreme Court.
31. Before the Supreme Court, SPSCL argued that appointment of
the Superintendent Engineer as the Sole Arbitrator was impermissible.
Two reasons were cited; firstly, that the Sole Arbitrator could not be
appointed by the office, but had to be appointed by name and,
13 (2014) 11 SCC 560
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secondly, that the appointment was in violation of Section 12(5).
Reliance was placed on the judgement of this Court in Ratna
Infrastructure Projects (P) Ltd11. The first argument is of no
relevance to the present controversy, though the second, undoubtedly,
is.
32. The Supreme Court set out the submission, of SPSCL, on the
second aspect, thus (in para 15 of the report):
"Drawing our attention to the wordings in Clause (65) 'that
the agreement is subject to any statutory modification or re-
enactment thereof and the rules made thereunder and for the
time being shall apply to the arbitration proceeding under
this clause' the learned Senior Counsel contended that these
words would certainly attract Section 12(5) of the Act as
amended with effect from 23-10-2015. In this regard, the
learned Senior Counsel placed reliance upon the Delhi High
Court judgment in Ratna Infrastructure Projects (P)
Ltd. v. Meja Urja Nigam (P) Ltd., 2017 SCC OnLine Del
7808 wherein interpreting the similar words in a contract, the
Delhi High Court held that those words satisfy the
requirement of Section 26 (amended Act of 2015) of there
being an agreement between the parties that the Act as
amended with effect from 23-10-2015 will apply ..."
(Emphasis in original)
33. Having thus set out the contention of SPSCL, advanced before
it, the Supreme Court went on, in para 16 of the report, to hold thus:
"Considering the facts and circumstances of the present case,
we are not inclined to go into the merits of this contention of
the appellant nor examine the correctness or otherwise of the
above view taken by the Delhi High Court in Ratna
Infrastructure Projects case; suffice it to note that as per
Section 26 of the Arbitration and Conciliation (Amendment)
Act, 2015, the provisions of the Amended Act, 2015 shall not
apply to the arbitral proceedings commenced in accordance
with the provisions of Section 21 of the principal Act before
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the commencement of the Amendment Act unless the parties
otherwise agree. In the facts and circumstances of the present
case, the proviso in Clause (65) of the general conditions of
the contract cannot be taken to be the agreement between the
parties so as to apply the provisions of the amended Act. As
per Section 26 of the Act, the provisions of the Amendment
Act, 2015 shall apply in relation to arbitral proceedings
commenced on or after the date of commencement of the
Amendment Act, 2015 (w.e.f. 23-10-2015). In the present
case, arbitration proceedings commenced way back in 2013,
much prior to coming into force of the amended Act and
therefore, provisions of the amended Act cannot be invoked."
(Emphasis supplied)
34. Para 25 of the report went on to observe that "in this case, the
agreement between the parties is dated 19-12-2006 and the
relationship between the parties are governed by the general
conditions of the contract dated 19-12-2006, the provisions of the
Amendment Act, 2015 cannot be invoked."
35. The observations and findings of the Supreme Court, in S.P.
Singla Constructions Pvt Ltd9, may be enumerated thus:
(i) In view of the facts and circumstances of the case before
it, the Supreme Court did not enter into the merits of the
contention, of SPSCL, that the concluding caveat, in Clause
(65) of the GCC, made Section 12(5) of the 1996 Act
applicable to the arbitral proceedings between SPSCL and the
State of Himachal Pradesh. Nor did the Supreme Court
examine the correctness, or otherwise, of the judgement of this
Court in Ratna Infrastructure Projects (P) Ltd11.
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(ii) Section 26 of the 2015 Amendment Act makes the
provisions of Section 12(5) inapplicable to arbitral proceedings
commenced before 23rd October, 2015.
(iii) The arbitral proceedings, between SPSCL and the State
of Himachal Pradesh had commenced in 2013, much prior to
23rd October, 2015.
(iv) "In the facts and circumstances" of the case before it, the
proviso in Clause (65) of the GCC could not be regarded as an
"agreement between the parties", so as to make Section 12(5)
applicable.
36. While examining the applicability, to the present case, of S.P.
Singla Constructions Pvt Ltd9, it has to be remembered that, unlike
the present case, the caveat in the arbitral Clause (65) of the GCC, in
that case, made "the Arbitration Act, 1940 or any statutory
modification or re-enactment thereof... for the time being" applicable.
On the strength of this clause, SPSCL was seeking, not only to make
the 1996 Act applicable, but to also make, applicable, Section 12(5) of
the 1996 Act, which came into effect only on 23rd October, 2015. The
issue before the Supreme Court was, therefore, whether Section 12 (5)
of the 1996 Act, which came into effect only on 23rd October, 2015,
could be regarded as a "provision of the Arbitration Act, 1940 or any
statutory modification or re-enactment thereof ... for the time being".
37. The arbitration clause in Rajasthan Small Industries
Corporation1, which is the next judgement chronologically arising for
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consideration, did not specify that the Arbitration Act, 1940 or the
1996 Act, would apply. Nor did it contain any caveat, such as that
which existed in Ratna Infrastructure Projects Pvt Ltd11, S.P. Singla
Constructions Pvt Ltd9 or in the present case, to the effect that the
statute, with future modifications, amendments, etc., would be
applicable. In the circumstances, the Supreme Court merely held that,
as the arbitral proceedings had commenced prior to 23rd October,
2015, Section 12(5) would not apply. How, and whether, this position
would change, if the 1996 Act, with its amendments and
modifications, had been made applicable, never came up for
examination. This decision cannot, therefore, assist in resolution of
the present controversy. The reliance, by the respondent, on the
judgement in Rajasthan Small Industries Corporation1 is, therefore,
misplaced.
38. Parmar Construction Company10 is a decision which
considerably impacts the outcome of these proceedings. The Supreme
Court, in the very first para of the judgment, delineated three issues,
arising for consideration, of which the first issue was worded thus:
"(1) The High Court was justified in invoking amended
provision which has been introduced the Arbitration and
Conciliation (Amendment Act), 2015 with effect from 23rd
October, 2015 (hereinafter being referred to as "Amendment
Act, 2015") ? "
Clearly, therefore, the very first issue, identified by the Supreme
Court, as arising before it, was the issue with which we are concerned
in the present case. We may turn, therefore, to the facts.
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39. The relevant sub-clauses of Clause 64 of the agreement
between Parmar Construction Company (hereinafter referred to as
"PCC") and the UOI, which provided for the resolution of disputes
by arbitration, may be reproduced thus:
"64. (1) Demand for Arbitration:
64.(1) (i) In the event of any dispute or difference
between the parties hereto as to the construction or operation
of this contract, or the respective rights and liabilities of the
parties on any matter in question, dispute or difference on any
account or as to the withholding by the Railways of any
certificate to which the contractor may claim to be entitled to,
or if the Railways fails to make a decision within 120 days,
then and in any such case, but except in any of the "excepted
matters" referred to in Clause 63 of these Conditions, the
contractor, after 120 days but within 180 days of his
presenting his final claim on disputed matters shall demand in
writing that the dispute or difference be referred to arbitration.
xxx
64. (3) Appointment of Arbitrator:
64.(3)(a)(i) In cases where the total value of all claims in
question added together does not exceed Rs.25,00,000
(Rupees twenty-five lakhs only), the Arbitral Tribunal shall
consist of a Sole Arbitrator who shall be a gazetted Officer of
the Railways not below JA Grade, nominated by the General
Manager. The sole arbitrator shall be appointed within 60
days from the day when a written and valid demand for
arbitration is received by GM. (Authority: Railway Board's
Letter no. 2012/CEI/CT/ARB./24, Dated 22-10-2013/5-11-
2013)"
xxx
64.(7) Subject to the provisions of the aforesaid Arbitration
and Conciliation Act, 1996 and the Rules thereunder and any
statutory modifications thereof shall apply to the arbitration
proceedings under this Clause.
(Emphasis supplied)
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40. PCC sent a notice, invoking arbitration, to the appellant-Union
of India, for appointment of an arbitrator, on 23rd December, 2013. On
the appellant failing to do so, PCC moved the Rajasthan High Court
under Section 11(6).
41. The High Court rejected the petition of PCC, preferred under
Section 11(6), relying, for the purpose, on Section 12(5), observing
that Section 12(5), as inserted by the 2015 Amendment Act, would
apply to all pending proceedings. As the arbitral proceeding, between
PCC and the UoI, was pending on 23rd October, 2015 [when the
Section 12(5) came into force], the High Court applied the provision
and appointed a retired Judge of the High Court as the Sole Arbitrator,
to arbitrate on the disputes. Aggrieved thereby, the UoI appealed to
the Supreme Court.
42. The Supreme Court, in paras 26, 27 and 28 of the report
rejected, in so many words, the contention of the UoI and held that, as
the arbitral proceedings had commenced prior to 23rd October, 2015,
Section 12(5) would not apply. Paras 26, 27 and 28, to the extent they
are relevant, may be reproduced thus:
"26. The conjoint reading of Section 21 read with Section
26 leaves no manner of doubt that the provisions of the
2015 Amendment Act shall not apply to such of the arbitral
proceedings which have commenced in terms of the
provisions of Section 21 of the Principal Act unless the
parties otherwise agree.
*****
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27. We are also of the view that the 2015 Amendment
Actwhich came into force, i.e. on 23-10-2015, shall not apply
to the arbitral proceedings which have commenced in
accordance with the provisions of Section 21 of the principal
Act, 1996 before the coming into force of 2015 Amendment
Act unless the parties otherwise agree.
28. In the instant case, the request was made and received
by the appellants in the appeal concerned much before
the 2015Amendment Act came into force. Whether the
application was pending for appointment of an arbitrator or in
the case of rejection because of no claim as in the instant case
for appointment of an arbitrator including change/substitution
of arbitrator, would not be of any legal effect for invoking the
provisions of 2015Amendment Actin terms of Section 21 of
the principal Act, 1996. In our considered view, the
applications/requests made by the respondent contractors
deserve to be examined in accordance with the principal Act,
1996 without taking resort to the 2015Amendment Act which
came into force from 23-10-2015."
(Emphasis supplied)
43. Parmar Construction Company10, therefore, was categorical in
holding that, in respect of arbitration proceedings which had
commenced prior to 23rd October, 2015, Section 12(5) would not
apply. In doing so, the Supreme Court placed reliance on S. P. Singla
Constructions (P). Ltd.9.
44. It is also significant that, unlike S. P. Singla Constructions (P).
Ltd.9, the caveat contained in Clause 64(7) of the agreement between
the parties in Parmar Construction Company10 made the 1996 Act,
and statutory modifications thereof, applicable to the arbitration
proceedings between the parties. As against this, the arbitration clause
in S. P. Singla Constructions (P). Ltd.9 it may be recollected, made
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the 1940 Act, with its modifications, etc., applicable to the arbitral
proceedings.
45. Parmar Construction Company10 is, therefore, more directly on
the point, insofar as the present controversy is concerned.
46. Bharat Broadband Network Ltd3, like Rajasthan Small
Industries Corporation Ltd1, involved an arbitration clause which did
not contain any caveat, similar to that which was to be found in in
Ratna Infrastructure Projects Pvt Ltd11, S. P. Singla Constructions
(P). Ltd.9, Parmar Construction Company10or the present case.
47. Clause 20.1 of the contract, in Bharat Broadband Network
Ltd3, required disputes to be referred to the sole arbitration of the
CMD of Bharat Broadband Network Limited (hereinafter referred to
as "BBNL") or to the officer entrusted to perform the functions of
CMD.
48. Disputes arose, resulting in invocation of the arbitration clause
by the respondent-United Telecoms Limited (hereinafter referred to as
"UTL") vide letter dated 3rd January, 2017. The CMD of BBNL
appointed Mr. K.H.Khan as the Sole Arbitrator vide letter dated 17th
January, 2017. Thereafter, consequent on the rendition of the
judgment in TRF Ltd2, by the Supreme Court, on 3rd July, 2017,
BBNL applied, to the Sole Arbitrator, requesting him to withdraw
from the proceedings, as he had become de jure unable to act as
arbitrator.
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49. The application was rejected by the Sole Arbitrator, on 21st
October, 2017, prompting BBNL, to approach this Court, under
Sections 14 and 15 of the 1996 Act, for termination of the mandate of
Mr. Khan and for appointment of a substitute arbitrator in his place.
50. The arbitration clause, in the agreement between BBNL and
UTL, read thus:
"20. ARBITRATION
20.1 In the event of any question, dispute or difference
arising under the agreement or in connection therewith
(except as to the matters, the decision to which is specifically
provided under this agreement), the same shall be referred to
the sole arbitration of the CMD, BBNL or in case his
designation is changed or his office is abolished, then in such
cases to the sole arbitration of the officer for the time being
entrusted (whether in addition to his own duties or otherwise)
with the functions of the CMD, BBNL or by whatever
designation such an officer may be called (hereinafter referred
to as the said officer), and if the CMD or the said officer is
unable or unwilling to act as such, then to the sole arbitration
of some other person appointed by the CMD or the said
officer. The agreement to appoint an arbitrator will be in
accordance with the Arbitration and Conciliation Act 1996.
There will be no objection to any such appointment on the
ground that the arbitrator is a governmentservant or that he
has to deal with the matter to which the agreement relates or
that in the course of his duties as a governmentservant/PSU
Employee he has expressed his views on all or any of the
matters in dispute. The award of the arbitrator shall be final
and binding on both the parties to the agreement. In the event
of such an arbitrator to whom the matter is originally referred,
being transferred or vacating his office or being unable to act
for any reason whatsoever, the CMD, BBNL or the said
officer shall appoint another person to act as an arbitrator in
accordance with terms of the agreement and the person so
appointed shall be entitled to proceed from the stage at which
it was left out by his predecessors."
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51. Clearly, there was, in the arbitration agreement forming subject
matter of consideration in Bharat Broadband Network Ltd3, no
provision, akin to the second para of Clause 33.1 of the GCC in the
present case, or to similar clauses, as existed in Ratna Infrastructure
Projects Pvt Ltd11, S. P. Singla Constructions (P). Ltd.9and Parmar
Construction Company10.
52. In the circumstances, the Supreme Court held that the case was
squarely covered by Section 12(5) of the 1996 Act, as the arbitral
proceedings had commenced after 23rd October, 2015 and that,
therefore, Mr. Khan had become de jure unable to perform his
functions as arbitrator. The High Court was, therefore, directed to
appoint a substitute arbitrator with consent of parties.
53. Unlike the present case, Bharat Broadband Network Ltd3
relates to an arbitration which commenced after 23 rd October, 2015
and cannot, therefore, impact the outcome of the present proceedings.
Besides, as noticed hereinabove, there was no provision, in the
agreement between BBNL and UTL, similar to the second paragraph
of Clause 33.1 of the GCC between the present petitioner and
respondent.
54. Perkins Eastman Architects4 is, similarly, of little significance,
insofar as the present controversy is concerned, as the appointment of
the sole arbitrator took place, in that case, on 30th July, 2019. The
applicability of Section 12(5) of the 1996 Act, as inserted by the 2015
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Amendment Act, was, therefore, not in dispute. The Supreme Court,
following its earlier decisions, including TRF Ltd2, annulled the
appointment of the arbitrator and appointed a retired Hon'ble Judge of
the Supreme Court as the arbitrator, in his place.
55. The above study reveals that the facts which obtained, and the
dispute which arose, in Parmar Construction Company10, were
substantially akin to the facts, and the dispute, in the present case. For
all intents and purposes, the arbitration clause, in that case, was also
similar to the one before the petitioner and the respondent, with a
caveat, akin to the caveat contained in the second paragraph of clause
33.1 of the GCC in the present case. A specific contention was taken,
before the Supreme Court, that, in view of the said caveat, Section
12(5), as inserted by the 2015 Amendment Act, would apply. The
Supreme Court rejected the contention and held that the benefit of the
Section 12(5) of the 1996 Act was not available to PCC.
56. Reliance was placed, for this purpose, by the Supreme Court,
on its earlier decision in S. P. Singla Constructions Pvt Ltd9 There,
again, the dispute was similar to that in the present case. The second
para of Clause (65) was similar to the caveat contained in Clause
64(7) in Parmar Construction Company10 and in the second para of
Clause 33.1 of the GCC in the present case, the sole difference being
that, whereas the clause in Parmar Construction Company10 and in
the present case made the provisions of the 1996 Act, with statutory
modifications, applicable to the arbitral proceedings, the clause in S.
P. Singla Constructions Pvt Ltd9 made the provisions of the 1940
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Act, along with statutory modifications and re-enactments thereof,
applicable to the arbitral proceedings.
57. No doubt, in S. P. Singla Constructions Pvt. Ltd9, the Supreme
Court observed, towards the commencement of para 16 of the report,
that it was not inclined to go into the merits of the contentions, of
SPSCL, relying the applicability of the earlier decisions of this Court
in Ratna Infrastructure Projects Pvt Ltd11, or to examine the
correctness of the said decision. Had the Supreme Court not chosen to
enter any further observations or findings, the matter might have been
different. As it is, however, the Supreme Court proceeded, in the same
paragraph, to hold that the proviso to Clause 65 of the GCC in that
case, could not be taken as an agreement between the parties, so as to
make Section 12(5) of the 1996 Act, applicable.
58. What is said by the Supreme Court constitutes declaration of
the law under Article 141 of the Constitution of India, and not what is
unsaid. It is the exposition of the law, by the Supreme Court, which
binds.
59. The discipline of Article 141 does not permit me, therefore, to
ignore the declaration of the law, contained in para 16 of S.P. Singla
Constructions Pvt Ltd9, merely because of the cautionary opening
sentences in the said paragraph. The Supreme Court, in the said
paragraph, categorically held that "the proviso in clause 65 of the
General Conditions of Contract cannot be taken to be the agreement
between the parties so as to apply the provisions of the Amended
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Act". Additionally, the Supreme Court has observed, in the very same
paragraph, that the applicability of Section 12(5) of the 1996 Act also
stood ruled out by Section 26 of the 2015 Amendment Act, as the
arbitral proceedings, had commenced in 2013, i.e., much prior to 23 rd
October, 2015. The Supreme Court having, in Parmar Construction
Company10, found the decision in S.P. Singla Constructions Pvt Ltd9
to constitute a valuable precedent, the reliance, by the respondent, on
the said decision, must be taken to be justified.
60. In any event, as already noted hereinabove, the present case is,
in any event, covered by Parmar Construction Company10.
61. Ms. Lal sought to distinguish the decision in Parmar
Construction Company10 on the ground that the arbitration clause in
that case did not contain the words "and for the time being in force".
62. In my view, this distinction, even if semantically significant, is
of no real conceptual consequence. I do not find any significant
difference between a provision which makes the 1996 Act, with its
statutory modifications and enactments, applicable, and, a provision
which makes the 1996 Act, with its statutory modifications and
enactment, for the time being in force, applicable. The expression
"with its statutory modifications and enactments", or any other such
like expression, itself glances towards the future. The words "for the
time being in force" appear to me, to be practically in the nature of a
superfluity, probably inserted ex abundanti cautela. It is axiomatic
that only those provisions can apply, which are in force at the time of
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application. A provision which has ceased to be in force cannot be
made applicable, even by contract between the parties.
63. Though Ms. Lal is, strictly speaking, correct in her submission
that the arbitration clause, in Parmar Construction Company10, did
not contain the words "for the time being in force", the arbitration
clause in S.P. Singla Constructions Pvt Ltd9 - on which Parmar
Construction Company10 relied - did contain the words "and for the
time being", which, quite obviously, bear the same connotation as the
words "for the time being in force". This semantic distinction, to
which Ms. Lal drew my especial attention, cannot, therefore, in my
opinion, wish away the applicability, to the present case, of the
judgment in Parmar Construction Company10.
64. Ms. Lal relied on the judgment of the Supreme Court in
Thyssen Stahlunion GMBH5, as well as three decisions of this Court,
namely, DDA v. Bhai Sardar Singh6, BVSR-KVR (Joint Ventures)7
and Ashiana Infrahomes Pvt Ltd8.
65. In Thyssen Stahlunion GMBH5, the controversy before the
Supreme Court was, essentially, regarding the applicability of Section
85 of the 1996 Act, which reads thus:
"85. Repeal and savings.--
(1) The Arbitration (Protocol and Convention) Act,
1937 (6 of 1937), the Arbitration Act, 1940 (10 of
1940) and the Foreign Awards (Recognition and
Enforcement) Act, 1961 (45 of 1961) are hereby
repealed.
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(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;
(b) all rules made and notifications
published, under the said enactments shall, to
the extent to which they are not repugnant to
this Act, be deemed respectively to have been
made or issued under this Act."
66. Civil Appeal 61/1999, which was one of the appeals decided by
Thyssen Stahlunion GMBH5, was filed by M/s Rani Construction (P)
Ltd. (hereinafter referred to as "Rani Construction"). Clause 25 of the
contract between Rani Construction and SAIL constituted the
arbitration agreement, and contained the following recital:
"Subject to the provisions of the contract to the contrary as
aforesaid, the provisions of the Indian Arbitration Act, 1940
or any statutory modification or re-enactment thereof and the
rules made thereunder and for the time being in force shall
apply to all arbitration proceedings under this clause."
67. The Division Bench of this Court, in an appeal from the
judgement of the learned Single Judge, had held that Clause 25 did
not operate to make the provision of the 1996 Act applicable to the
arbitral proceedings between the parties. The Supreme Court, in para
11 of the report, therefore identified one of the key issues arising
before it, for consideration, as whether, by operation of the afore-
extracted clause, the 1996 Act could be made applicable to the arbitral
proceedings between Rani Construction and SAIL.
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68. The Supreme Court was required to decide the controversy in
the light of sub-sections (1) and (2)(a) of Section 85 of the 1996 Act.
69. The issue that arose before the Supreme Court (apropos Rani
Construction) was whether Clause 25, in the Arbitration Agreement,
amounted to agreement "otherwise" by the parties, within the meaning
of Section 85(2)(a), so as to render the 1940 Act inapplicable to the
arbitral proceedings. Ms. Lal relies on the following words, as
contained in para 35 of the report:
"Parties can agree to the applicability of the new Act even
before the new Act comes into force and when the old Act is
still holding the field. There is nothing in the language of
Section 85(2)(a) which bars the parties from so agreeing.
There is, however, a bar that they cannot agree to the
applicability of the old Act after the new Act has come into
force when arbitral proceedings under the old Act have not
commenced though the arbitral agreement was under the old
Act. Arbitration clause inthe contract in the case of Rani
Constructions (Civil Appeal 61 of 1999) uses theexpression
"for the time being in force" meaning thereby that provision
of that Actwould apply to the arbitration proceedings which
will be in force at the relevant time when arbitration
proceedings are held. We have been referred to two decisions
- one of Bombay High Court and the other of Madhya
Pradesh High Court on the interpretation ofthe expression "for
the time being in force" and we agree with them that the
expression aforementioned not only refers to the law in force
at the time the arbitration agreementwas entered into but also
to any law that may be in force for the conduct of arbitration
proceedings, which would also include the enforcement of the
award as well.Expression "unless otherwise agreed" as
appearing in Section 85(2)(a) of the new Actwould clearly
apply in the case of Rani Construction in Civil Appeal No. 61
of 1999.Parties were clear in their minds that it would be the
old Act or any statutory modification or re-enactment of that
Act which would govern the arbitration. We accept the
submission of the appellant Rani Construction that parties
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could anticipate that thenew enactment may come into
operation at the time the disputes arise. We have seen Section
28 of the Contract Act. It is difficult for us to comprehend that
arbitration agreement could be said to be in restraint of legal
proceedings. There is no substance inthe submission of
respondent that parties could not have agreed to the
application of the new Act till they knew the provisions
thereof and that would mean that any such agreement as
mentioned in the arbitration clause could be entered into only
after the new Act had come into force. When the agreement
uses the expressions "unlessotherwise agreed" and "law in
force" it does give option to the parties to agree that new Act
would apply to the pending arbitration proceedings. That
agreement can be entered into even before the new Act comes
into force and it cannot be said that agreement has to be
entered into only after coming into force of the new Act."
(Emphasis supplied)
70. Ms. Lal, seeks to draw an analogy from the opinion expressed
in Thyssen Stahlunion GMBH5, to contend that the use of the
expression "all statutory modifications or amendments thereof and the
rules made thereunder and for the time being in force", as employed
in the second para in Clause 33.1 of the GCC in the present case,
would result in making Section 12(5) of the 1996 Act, as inserted by
the 2015 Amendment Act, applicable to the present proceedings. The
submission is superficially appealing but, on a deeper analysis, cannot
be accepted. In the first place, Parmar Construction Company10
operates as a direct authority, against the petitioner, on similar facts,
the only difference being that the arbitration clause did not contain the
words "for the time being in force". I have already opined,
hereinabove, that the absence of these words cannot dilute the
applicability, to the present case, of the decision in Parmar
Construction Company10.
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71. Besides, in Thyssen Stahlunion GMBH5, there was no
provision, similar to Section 26 of the 2015 Amendment Act, which
is crucial to adjudication of the dispute in the present case. In this
context, it is necessary to distinguish the structure of Section 85(2)(a)
of the 1996 Act, with Section 26 of the 2015 Amendment Act.
Whereas Section 85 (2)(a) of the 1996 Act made, inter alia, the 1940
Act applicable to arbitral proceedings which commenced before the
coming into force of the 1996 Act, unless otherwise agreed by the
parties. Section 26 of the 2015 Amendment Act starts with a negative
covenant, to the effect that nothing contained in the 2015 Amendment
Act - which would include the insertion of Section 12(5) of the 1996
Act - would apply to arbitral proceedings, commenced before the
2015 Amendment Act came into force, i.e. before 23rd October, 2015.
This negative covenant was subject to an exception in the case of
agreement, otherwise, by the parties. Structurally and conceptually,
therefore, Section 26 of the 2015 Amendment Act is fundamentally
different from Section 85(2)(a) of the 1996 Act, and requires,
therefore, to be interpreted, keeping this distinction in mind.
72. In the light of Parmar Construction Company10, which was
rendered in the wake of Section 26 of the 2015 Amendment Act, this
Court is bound to hold that the second para of Clause 33.2 of the
GCC, in the present case, cannot result in Section 12(5) of the 1996
Act, becoming applicable. Thyssen Stahlunion GMBH5 cannot,
therefore, come to the aid of the petitioner.
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73. The judgments of this Court in DDA v. Bhai Sardar Singh6,
BVSR-KVR (Joint Ventures)7and Ashiana Infrahomes Pvt Ltd8 were
all rendered prior to S.P. Singla Constructions Pvt Ltd9 and Parmar
Constructions Company10. I do not deem it necessary, therefore, to
burden this judgment with any reference to the said decisions, which
have inevitably to cede place to the enunciation of the law in S.P.
Singla Constructions Pvt Ltd9 and, even more significantly, in
Parmar Constructions Company10.
Conclusion
74. Resultantly, I am constrained to reject the submission, of Ms.
Lal, that the appointment of Mr. A. Muraleedharan, Advocate, stood
vitiated on account of Section 12(5) of the 1996 Act, as inserted by
the 2015 Amendment Act.
75. The petition, therefore, fails and is dismissed, with no orders as
to costs.
C. HARI SHANKAR, J.
NOVEMBER 02, 2020 HJ Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI O.M.P. (T) (COMM.) 48/2020 Page 34 of 34 Signing Date:02.11.2020 16:29:21