LexM/S. N.S. NAYAK AND SONS versus STATE OF GOA
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MIS. N.S. NAYAK AND SONS A v. STATE OF GOA MAY 8, 2003 [M.B. SHAH AND ARUN KUMAR, JJ.] B Arbitration Act, 1940/Arbitration and conciliation Act, 1996-Section ) 37/Section 85(2)(a)-Appeals under 1940 Act-Subsequent enactment of 1996 Act-Applicability of 1996 Act to the pending appeals-Plea that 1996 Act C applicable in view of arbitration agreement-Held, not applicable-Once the . arbitral proceedings have commenced under 1940 Act, the same Act would apply for the award becoming decree and also for appeal arising thereunder- Right to file an appeal is accrued right and the same would be governed as per statutory provisionr-Parties to arbitration agreement have no right to change the same. D Present appeals raised question of applicability of Arbitration and Conciliation Act, 1996 to the appeals filed under Section 37 of Arbitration Act, 1940. Appellant contended that appeals filed by the respondents under E Section 37 of 1940 Act were required to be decided on the basis of the Arbitration and Conciliation Act, 1996 because the Arbitration agreement provided that the provisions of the 1940 Act 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 proceedings; and that in F Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., (19991 9 SCC 334 the phrase "in relation to arbitral proceedings" is given wider meaning so as to include arbitral proceedings before the arbitrator as well as the proceedings before the Court and hence once 1996 Act came into force, further proceedings including appeals were required to be dealt with and decided in accordance with 1996 Act as per the agreement. G Dismissing the appeals, the Court HELD: 1. On the basis of Section 85(2)(a) of Arbitration and Conciliation Act, 1996 the provisions of the Arbitration Act, 1940 would 69 H 70 SUPREME COURT REPORTS [2003] SUPP. I S.C.R. A apply to the arbitral proceedings which commenced on or before 1996 Act came into force. Part of the arbitration clause also provides that the provisions of 1940 Act, which were for time being in force were to apply to the arbitral proceedings between the parties. It nowhere provides that once the arbitral proceedings have commenced under 1940 Act, they should be conducted under 1996 Act as soon as 1996 Act comes into B operation. Hence, in the proceedings where the award is passed under 1940 Act, the remedy of filing appeal or petition for setting aside the said award would be as per the provisions of 1940 Act. In cases where the arbitral proceedings commenced under 1940 Act, it is an accrued right to proceed in accordance with that law and it would be 1940 Act which would apply C even for enforcing the award. (72-C, E, F; 74-Al 2. Thyssen 's case nowhere lays down that after 1996 Act came into force, even appeals filed under the provisions of 1940 Act are to be decided on the basis of the provisions contained in 1996 Act. It rather reiterates that once the arbitral proceedings have started under the 1940 Act, it D would apply for the award becoming decree and also for appeal arising thereunder; and that the phrase 'unless otherwise agreed by the parties' used in various Sections namely, 17, 21, 23(3), 24(1), 25, 26, 29, 31, 85(2)(a) etc. of 1996 Act indicates that it is open to the parties to agree otherwise. So if there is an agreement between the parties with regard to the E procedure to be followed by the arbitrator, arbitrator is required to follow the said procedure. However, this would not mean that in appeal parties can contend that appellate procedure should be as per their agreement. Appellate procedure would be governed as per the statutory provisions and parties have no right to change the same. The right to file an appeal is accrued right that cannot be taken away unless there is specific provision F to the contrary. There is no such provision in 1996 Act. In the present cases, the appeals were pending before the ~igh Court under the provisious of 1940 Act and, therefore, appeals are required to be decided on the basis of the statutory provisions under the said Act. (74-E, F; 76-D, E, F, G, HJ G Thyssen Stah/union GMBH v. Steel Authority of India ltd, (1999) 9 sec 334, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 97 of 2002. From the Judgment and Order dated 27.4.2000 of the Mumbai High H Court in A.A. No. I of 1993. ! N
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