Case Note & Summary
The appellant, M/s. Radhey Shyam Associates, a contractor, filed a Letters Patent Appeal challenging the judgment of a learned Single Judge of the Bombay High Court, Aurangabad Bench, 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 had held that the arbitration award sought to be executed could not be enforced. The appellant had filed Misc. Application No. 98/2004 under the Arbitration and Conciliation Act, 1996, seeking execution of an award. The District Court held that the arbitration was governed by the Arbitration Act, 1940, as the arbitration agreement was entered into before the 1996 Act came into force. The award under the 1940 Act ought to have been filed in court to be made a rule of court before execution. The employer had refused to make the provisions of the new Act applicable. The learned Single Judge upheld this view. In the appeal, the respondent employer argued that the award could not be enforced under the 1996 Act. The Division Bench, comprising Justices T.V. Nalawade and Sunil K. Kotwal, heard both sides and dismissed the appeal, affirming that the award under the 1940 Act cannot be enforced under the 1996 Act without being made a rule of court.
Headnote
A) Arbitration Law - Applicability of Arbitration Acts - Award Enforcement - Arbitration and Conciliation Act, 1996, Section 85; Arbitration Act, 1940 - The dispute pertains to enforcement of an arbitration award for road construction work. The court held that the arbitration agreement was entered into before the 1996 Act came into force and thus governed by the 1940 Act. The award under the 1940 Act must be filed in court to be made a rule of court; it cannot be enforced directly under the 1996 Act. The employer's refusal to apply the new Act was also considered. (Paras 1-4) B) Arbitration Law - Execution of Award - Jurisdiction - Arbitration Act, 1940 - The court held that the award, which was not made a rule of court under the 1940 Act, cannot be executed under the 1996 Act. The Principal District Judge correctly held that the award cannot be enforced. The Letters Patent Appeal was dismissed. (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 without being made a rule of court under the 1940 Act.
Final Decision
The Letters Patent Appeal is dismissed. The order of the learned Single Judge dismissing the writ petition is upheld. The award under the Arbitration Act, 1940 cannot be enforced under the Arbitration and Conciliation Act, 1996.
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 to be made rule of court
- Execution of award under 1940 Act cannot be under 1996 Act
- Section 85 of Arbitration and Conciliation Act
- 1996 repeals 1940 Act but saves pending proceedings
