BOARD OF CONTROL FOR CRICKET IN INDIA versus KOCHI CRICKET PVT. LTD. AND ETC.

Citation: [2018] 2 S.C.R. 829 · Decided: 15-03-2018 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Dismissed

Cited by 16 judgment(s) · cites 17 · see the full citation network in Lexace

Judgment (excerpt)

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[2018] 2  S.C.R. 829
829
BOARD OF CONTROL FOR CRICKET IN INDIA
v.
KOCHI CRICKET PVT. LTD. AND ETC.
(Civil Appeal Nos.2879-2880 of 2018)
MARCH 15, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Arbitration and Conciliation (Amendment) Act, 2015: s. 26 –
Construction of  – Application of  s. 36 (substituted by the Amendment
Act), in its amended form or its original form to s.34 applications
for setting aside the arbitral award, filed prior to commencement of
the Amendment Act – On facts, passing of arbitral award –
Application u/s.34 challenging the arbitral award, filed prior to
coming into force of the Amendment Act and few after the Amendment
Act came into force – Execution applications by the award creditor
– Dismissal of execution applications sought by award debtor stating
that old s.36 would be applicable, thus, there would be automatic
stay to the execution of the awards until s.34 proceedings had been
decided – However, the Single Judge of the High Court held that
the amended s.36 would be applicable and execution of an award
would be as if it were a decree, there would be no automatic stay
and ordered execution – On appeal, held: Scheme of s.26 is clear
that the Amendment Act is to be applied only prospectively with
effect from the date of its commencement, and only to arbitral
proceedings and to court proceedings in relation thereto, which
have commenced on or after the commencement of the Amendment
Act – Further, s. 36 being a procedural provision, the context of the
Section is that the expression “has been” would refer to s.34 petitions
filed before the commencement of the Amendment Act and indicates
that the said Section would apply, in its substituted form, even to
such petitions – Thus, s.36 as amended should apply to s.34
applications filed before the commencement of the Amendment Act
– Arbitration and Conciliation Act, 1996 – ss. 36 and 34.
Dismissing the appeals, the Court
HELD: 1.1 The scheme of Section 26 of the Arbitration
and Conciliation (Amendment) Act, 2015 is clear: that the
Amendment Act is prospective in nature, and will apply to those
arbitral proceedings that are commenced, as understood by
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SUPREME COURT REPORTS
[2018]  2 S.C.R.
Section 21 of the principal Act, on or after the Amendment Act,
and to Court proceedings which have commenced on or after the
Amendment Act came into force. [Para 25] [859-C-D]
1.2 On a reading of Section 26, it is found that the provision
is in two parts. The first part refers to the Amendment Act not
applying to certain proceedings, whereas the second part
affirmatively applies the Amendment Act to certain proceedings.
The two parts are separated by the word ‘but’, which also shows
that the two parts are separate and distinct. It cannot be said that
the expression “but” means only that there is an emphatic
repetition of the first part of Section 26 in the second part of the
said Section. The context of the word “but” in Section 26 cannot
bear the aforesaid meaning, but serves only to separate the two
distinct parts of Section 26. What will be noticed from the first
part, which states, “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…”
is that: (1) “the arbitral proceedings” and their commencement
is 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 of Section 26 is
concerned, namely, the part which reads, “…but this Act shall
apply in relation to arbitral proceedings commenced on or after
the date of commencement of this Act” makes it clear that the
expression “in relation to” is used; and the expression “the”
arbitral proceedings and “in accordance with the provisions of
Section 21 of the principal Act” is conspicuous by its absence.
The expression “the arbitral proceedings” refers to proceedings
before an arbitral tribunal. These proceedings alone are referred
to, the expression “to” as contrasted with the expression “in
relation to” making this clear. Also, the reference to Section 21
of the 1996 Act, which appears in Chapter V, and which speaks of
the arbitral proceedings commencing on the date on which a
request for a dispute to be referred to arbitration is received by
the respondent, would also make it clear that it is t

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