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8. Mr.Mehta, learned senior counsel for the petitioner in Commercial Arbitration Petition No.434 of 2017 submits that the notice invoking arbitration agreement was admittedly issued by the petitioner on 28th February, 2011, which was immediately received by the respondent. The respondent did not agree to the appointment of any arbitrator. The petitioner had thus filed an arbitration application under section 11(6) of the Arbitration & Conciliation Act, 1996 before this Court in the year 2012. He submits that the then designate of the Hon'ble Chief Justice by an order dated 4 th December, 2012 had appointed a former Judge of this Court as a sole arbitrator and referred the disputes between the parties to the arbitration of the learned arbitrator. He submits that in view of the petitioner invoking arbitration agreement as far back as on 28 th February, 2011, the arbitral proceedings had already commenced upon receipt of the said notice invoking arbitration agreement by the respondent which was much prior to insertion of section 34(5) of the Arbitration & Conciliation Act, 1996 in section 34 which was inserted with effect from 23rd October, 2015.

46. Learned counsel invited my attention to the averments in the Commercial Arbitration Petition No.434 of 2017 and would submit that the notice invoking arbitration agreement was issued by the other party on 20th February, 2011. The award was rendered by the learned arbitrator on 12th April, 2017. On 5th June, 2017, the learned arbitrator passed an order under section 33 of the Arbitration & Conciliation Act, 1996. The arbitration petition was filed on 11 th July, 2017. She submits that admittedly the arbitral award is rendered after 23 rd October, 2015 and the arbitration petition also came to be filed after 23rd October, 2015. She strongly placed reliance on the judgment of this Court in case of M/s.Rendezvous Sports World (supra) and in particular paragraphs 10, 11, 21, 25 to 28, 33, 34, 52, 53, 57, 58 and 78 and also in case of Enercon GmbH (supra) and in particular carbp434-17 paragraphs 24, 28, 32, 38, 40 and 44 in support of her submission that though the notice invoking arbitration agreement was given prior to 23rd October, 2015 and the award was rendered after that date, all the arbitration petitions challenging such award would be governed by section 34(5) and 34(6) to be read with section 34(1) and those provisions thus will have to be complied with. She submits that there are two sets of arbitral proceedings contemplated under section 26 of the Arbitration & Conciliation Act, 1996 i.e. one before the arbitral tribunal and another in Court post award.

71. This Court in case of The Board of Trustees of the Port of Mumbai vs. Afcons Infrastructure Limited (supra) has considered a situation where notice invoking arbitration agreement was issued much prior to 23rd October, 2015. The arbitral award was rendered prior to 23rd October, 2015. The arbitration petition was filed in the year 2012 and was pending till 23 rd December, 2016. There was no provision in the arbitration agreement that the parties would be governed by not only the provisions of the Arbitration and Conciliation Act, 1996 but also by the statutory amendment or repealed thereto. This Court accordingly held that since the notice invoking arbitration agreement was issued prior to 23rd October, 2015, the provisions of amended section 34 brought into effect on 23rd October, 2015 would not be applicable to the facts of this case.

85. In my view, a plain and simple interpretation of section 26 of the Amendment Act on conjoint reading with other provisions of the Arbitration Act referred to aforesaid wherein the term 'arbitral proceedings' are referred would clearly indicate that the provisions in the Arbitration and Conciliation Act prior to the provisions of Amendment Act having been brought into effect would apply to all the arbitral proceedings wherein a notice invoking arbitration agreement under section 21 was received by the other party prior to 23 rd October, 2015 and the provisions of the Arbitration Act duly amended by the Amendment Act would apply to all the arbitral proceedings which have commenced after 23rd October, 2015 by virtue of a receipt of notice invoking arbitration agreement by other party in view of section 21 of the Arbitration and Conciliation Act, 1996. The phrase "the date of commencement of the arbitral proceedings" is a legal fiction and has to be read in conjunction with the words "commenced in accordance with section 21".