M/S. SHREE VISHNU CONSTRUCTIONS versus THE ENGINEER IN CHIEF MILITARY ENGINEERING SERVICE & ORS.

Citation: [2023] 5 S.C.R. 327 · Decided: 09-05-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Dismissed

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Judgment (excerpt)

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[2023] 5 S.C.R. 327
327
M/S. SHREE VISHNU CONSTRUCTIONS
v.
THE ENGINEER IN CHIEF MILITARY ENGINEERING
SERVICE & ORS.
(Civil Appeal No. 3461 of 2023)
MAY 09, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Arbitration and Conciliation (Amendment) Act, 2015 – s.26 –
Applicability of Amendment Act, 2015– Whether the provisions of
the old Act (pre-Amendment Act, 2015) or the new Act (Amendment
Act, 2015) shall be applicable when the notice invoking arbitration
is issued prior to the Amendment Act, 2015 but application to appoint
arbitrator u/s.11(6), 1996 Act is filed post Amendment Act, 2015 –
Held: In a case where the notice invoking arbitration is issued prior
to the Amendment Act, 2015 and the application u/s.11(6)is filed
post Amendment Act, 2015, the Amended Act, 2015 shall not be
applicable and the parties shall be governed by the pre-amendment
Act, 2015– Arbitration and Conciliation Act, 1996 – ss.11(6), 21.
Arbitration and Conciliation (Amendment) Act, 2015 –Whether
the decision in the cases of Union of India v. Parmar Constructions
Company reported as [2019] 5 SCR 1009 and Union of India v. Pradeep
Vinod Construction Company reported as [2012] 17 SCR 64 are per
incuriam as the decision in the case of Board of Control for Cricket in
India (BCCI) v. Kochi Cricket Private Limited and Ors. reported as
[2018] 2 SCR 829 was not considered in the said decisions – Held:
No – Arbitration and Conciliation Act, 1996.
Dismissing the appeal, the Court
HELD: 1.1 Section 11(6A) has been inserted by Amendment
Act, 2015, by which the powers of the Court dealing with an
application under Section 11(6) of the Act are restricted and as
per section 11(6A), the powers of the Court while deciding
application under Section 11(6) of the Act are confined to the
examination of the existence of an arbitration agreement, which
powers were not restricted in the pre-amendment Act, 2015.
However, Section 26 of the Amendment Act, 2015 provides that
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
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. At this stage, it is
required to be noted that as per Section 21 of the principal Act,
unless otherwise agreed by the parties, the arbitral proceedings
in respect of a particular dispute commence on the date on which
a request for that dispute to be referred to the arbitration is
received by the respondent. Therefore, as per section 21 of the
principal Act, the arbitral proceedings can be said to have
commenced on the date on which a request for the dispute to be
referred to the arbitration is received by the respondent.
Therefore, as per section 21 of the principal Act the arbitral
proceedings can be said to have commenced on the date on which
a request for the dispute to be referred to the arbitration is
received by the respondent. At this stage, it is required to be
noted that by Amendment Act, 2015, Sections 34 and 36 of the
Arbitration Act also came to be amended and the interference of
the Court in challenge to the award has been restricted and/or
narrowed down. [Para 6.1][343-A-E]
1.2 This Court is required to consider whether the decision
in the cases of Parmar Constructions Company and Pardeep Vinod
Construction Company can be said to be per incuriam as the
decision of this Court in the case of BCCI has not been considered
by this Court in the said decisions. However, on a fair reading of
the decisions in the case of BCCI and the observations made in
paragraphs 37 to 39 and on a fair reading of decisions in the cases
of Parmar Constructions Company and Pardeep Vinod Construction
Company, this Court in the case of BCCI has held that the
Arbitration Amendment Act, 2015 is prospective in nature insofar
as the proceedings under sections 34 & 36 are concerned. It is
required to be noted that in the case of BCCI, application under
section 11(6) was not the subject matter and there was no issue
before the Court that even in a case where the notice invoking
the arbitration is issued prior to the Amendment Act, 2015, but
the application under section 11(6) is filed post Amendment Act,
2015, what will be the position and whether the old Act will be
applicable or the amended Act. On the other hand, the decisions
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in the case of Parmar Constructions Company is directly on the
point, namely, th

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