Shiv Singh Amar Singh v. Ntpc Ltd

NAVIN CHAWLA, J NOVEMBER 20, 2018 RN

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. (ENF) (COMM) 67/2018 Reserved on: 08.10.2018 Date of decision : 20.11.2018 SHIV SINGH AMAR SINGH ..... Decree Holder Through Ms.Pragya Sharma, Adv. versus NTPC LTD ..... Judgment Debtor Through Mr.R.K. Joshi, Mr.Jyotinder Kumar and Mr.Ojusya Joshi,Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The present petition has been filed under Section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the '1996 Act') as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter referred to as the 'Amending Act'), seeking enforcement of the Arbitral Award dated 25.05.2017 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the Letter of Award dated 26.03.1984 whereby the respondent had awarded the work of Structural Steel Package Part II (3X500 MW Units) Karim Nagar District, Andhra Pradesh to the petitioner. 2. Counsel for the respondent has raised a preliminary objection on the maintainability of the present petition contending that the provisions of the 1996 Act and the Amending Act do not apply to the Arbitral Award and the same is governed by the Arbitration Act, 1940 Page 2 (hereinafter referred to as the '1940 Act'). Counsel for the respondent submits that the arbitration proceedings had commenced with the invocation of the Arbitration Agreement by the petitioner vide its letter dated 02.03.1987. The respondent had also raised its counter claim vide letter dated 28.07.1987 and thereafter, in terms of the Arbitration Agreement between the parties, the Arbitrator was appointed by the Chairman/Managing Director of the respondent vide letter dated 06.08.1987. The arbitration proceedings, having commenced prior to the coming into force of the 1996 Act, were governed by the provisions of the 1940 Act and therefore, the Award is not enforceable till it is made a rule of the Court in accordance with Section 17 of the 1940 Act. He further contends that even after coming into force of the 1996 Act, the parties continued the arbitration proceedings in accordance with the 1940 Act and in this regard, he has placed reliance on the record of proceedings dated 15.10.2008, 28.04.2010, 25.11.2010, 15.04.2013, 14.05.2014, 15.10.2015 and 19.12.2016, wherein the parties had agreed to extend the time for making of the Award in terms of Section 28(2) of the Arbitration Act, 1940. 3. On the other hand, counsel for the petitioner submits that the Arbitration Agreement between the parties as contained in Clause 56 of the General Conditions of Contract (GCC) provides for the provisions of the Arbitration Act, 1940 'or any statutory modification or re-enactment thereof' 'for the time being in force' to apply to the arbitration proceedings. He further submits that the Amending Act would therefore apply in terms of the Arbitration Agreement between the parties. Relying upon the Judgment of the Supreme Court in Board of Control for Cricket Page 3 in India vs. Kochi Cricket Pvt. Ltd. & Ors. MANU/SC/0256/2018, he submits that even otherwise, in view of Section 26 of the Amending Act, as interpreted by the Supreme Court, the Award having been passed after coming into force of the Amending Act and the present proceedings also having been initiated thereafter, the provisions of the 1996 Act as amended by the Amending Act shall apply to the present petition and the Arbitral Award is enforceable under Section 36 of the 1996 Act as amended. 4. I have heard the counsels for the parties. 5. The 1996 Act brought about a major shift from the 1940 Act regarding the enforcement of the Arbitral Award. In the 1940 Act, the Arbitral Award had to be filed in Court upon the request of a party or direction of the Court under Section 14 of the said Act. Section 17 of the 1940 Act further provided for the Court to pronounce the judgment according to the Award and upon the judgment so pronounced, a decree was to follow. It