Case Note & Summary
The appellant, M/s. Radhey Shyam Associates, filed a Letters Patent Appeal challenging the judgment of a learned Single Judge of the Bombay High Court dated 11.02.2008, which dismissed their Writ Petition No. 4849 of 2007. The writ petition had challenged an order dated 13.06.2007 passed by the Principal District Judge, Parbhani, in Misc. Application (Regular Darkhast, execution proceeding) No. 98 of 2004. The District Judge held that the arbitration award sought to be executed could not be enforced under the Arbitration and Conciliation Act, 1996, as the arbitration agreement was entered into before the 1996 Act came into force and was thus governed by the Arbitration Act, 1940. The appellant had filed the execution application under the 1996 Act, but the District Judge found that the award ought to have been filed in court under the 1940 Act to be made a rule of court. The learned Single Judge upheld this view. In the appeal, the respondent employer argued that the arbitration agreement was entered into prior to the 1996 Act, and the employer had refused to make the new Act applicable. The court agreed, holding that the arbitration was governed by the 1940 Act and the award could not be enforced under the 1996 Act. The appeal was dismissed.
Headnote
A) Arbitration Law - Applicability of Arbitration Acts - Agreement entered into before 1996 Act - Arbitration agreement was entered into prior to commencement of Arbitration and Conciliation Act, 1996 - Held that the arbitration is governed by the Arbitration Act, 1940 and the award cannot be enforced under the 1996 Act (Paras 1-4).
B) Arbitration Law - Execution of Award - Filing in Court - Award under 1940 Act must be filed in court for making it rule of court - Held that the award cannot be put to execution directly under the 1996 Act without being made rule of court under the 1940 Act (Paras 1-4).
Issue of Consideration
Whether an arbitration award passed under the Arbitration Act, 1940 can be enforced under the provisions of the Arbitration and Conciliation Act, 1996?
Final Decision
The Letters Patent Appeal is dismissed. The order of the learned Single Judge upholding the District Judge's decision that the award cannot be enforced under the Arbitration and Conciliation Act, 1996 is confirmed.
Law Points
- Arbitration Act
- 1940 governs arbitration agreements entered into before 1996 Act came into force
- Award under 1940 Act must be filed in court for making it rule of court
- Execution of award under 1996 Act not permissible if arbitration was under 1940 Act
Case Details
2019 LawText (BOM) (01) 159
LETTERS PATENT APPEAL NO. 35 OF 2008 IN WRIT PETITION NO. 4849 OF 2007
T.V. Nalawade, Sunil K. Kotwal
Mr. J. N. Singh for Appellant, Mr. A.V. Deshpande, A.G.P for Respondents
M/s. Radhey Shyam Associates (Engineers and Contractors) through Radheshyam S/o Ayodhyaprasad Tripathi
The State of Maharashtra, Public Works Department, Through Executive Engineer, Public Works Division, Hingoli; The Chief Engineer, Public Works Department; The Superintending Engineer, Public Works Department
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Nature of Litigation
Appeal against dismissal of writ petition challenging order of District Judge refusing execution of arbitration award under 1996 Act.
Remedy Sought
Appellant sought enforcement of arbitration award under the Arbitration and Conciliation Act, 1996.
Filing Reason
The District Judge held that the award was under the Arbitration Act, 1940 and could not be enforced under the 1996 Act.
Previous Decisions
Writ Petition No. 4849 of 2007 was dismissed by learned Single Judge on 11.02.2008. Misc. Application No. 98 of 2004 was dismissed by Principal District Judge, Parbhani on 13.06.2007.
Issues
Whether the arbitration award passed under the Arbitration Act, 1940 can be enforced under the Arbitration and Conciliation Act, 1996?
Submissions/Arguments
Respondent employer submitted that the arbitration agreement was entered into before the 1996 Act came into force, and the employer refused to make the new Act applicable, so the award cannot be enforced under the 1996 Act.
Ratio Decidendi
An arbitration agreement entered into before the commencement of the Arbitration and Conciliation Act, 1996 is governed by the Arbitration Act, 1940. An award under the 1940 Act must be filed in court to be made a rule of court and cannot be directly executed under the 1996 Act.
Judgment Excerpts
The District Court, the principal Civil Court of the District has held that the arbitration could have been under the provisions of the Arbitration Act, 1940 and it could not have been under the provisions of the Arbitration Act, 1996.
It is held that the award under the Act of 1940 ought to have been filed in the Court for making it rule/executable.
Procedural History
The appellant filed Misc. Application No. 98 of 2004 under the Arbitration Act, 1996 for execution of an award. The Principal District Judge, Parbhani, by order dated 13.06.2007, held that the award was under the Arbitration Act, 1940 and could not be enforced under the 1996 Act. The appellant challenged this order in Writ Petition No. 4849 of 2007, which was dismissed by a learned Single Judge on 11.02.2008. The appellant then filed the present Letters Patent Appeal No. 35 of 2008.
Acts & Sections
- Arbitration Act, 1940:
- Arbitration and Conciliation Act, 1996:
