JUDGMENT
K. Ramamoorthy, J.
(1) The First Security Bank of Utah and others filed the suit under Section 20 of the Arbitration Act, 1940. The Respondent is the East West Travel and Trade Links Limited contending, inter alia, that the arbitration proceedings should be under the Arbitration and Conciliation Ordinance and later on the Arbitration Conciliation Act, 1996 (No. 26/96). This court delivered the judgment on 27.03.1996 appointing Hon’ble Mr. Justice R.S. Pathak, former Chief Justice of India as an Arbitrator. The matter was taken up to the Supreme Court and the Supreme Court has confirmed the order. The Hon’ble Arbitrator had entered upon the reference. The petitioner has filed this Ia No. 11967/96 in the disposed of matter praying for the following reliefs: a) Aircraft Number be ordered to be read as Msn 22576 (and not 22567); b) It be clarified that the order in question be treated as not giving the Findings/ directions that the Arbitration/Arbitral proceeding are to be governed by the Arbitration Act, 1940;
(2) So far as prayer (a) is concerned, it is allowed.
(3) Regarding prayer (b) about the applicability of the Arbitration Act, 1940 or the new Arbitration and Conciliation Act, 1996 (No 26/1996). Arguments were advanced by the learned counsel for the parties. The learned counsel for the petitioner submits that the proceedings before the Hon’ble Arbitrator arc governed by the Arbitration and Conciliation Act, 1996, even though the petition under Section 20 was filed earlier. In para 4 of the petition the Petitioner had stated thus: That although Arbitration and Conciliation Ordinance 1996 (which has later been replaced by the Act) had been enforced, with effect from 19.01.1996, this Hon’ble Court observing that the original Petition is under Section 20 of the Arbitration Act, 1940, (following the General Clause Apt) ordered pending application is to be disposed off in terms of the Arbitration Act, 1940 and disposed of accordingly. Petitioner apprehends that this may be interpreted as meaning that the Arbitration proceedings are governed by the old Act and not the new Act (Arbitration and Conciliation Act, 1996.)
(4) In reply to this the Respondent had stated in the following manner: It is submitted that the petitioner has invoked the arbitrarily proceedings by filing Section 20 petition before this Hon’ble court. No notice was given prior to the filing of Section 20 petition as contemplated under Section 37(3) of the Indian Arbitration Act, 1940. Therefore, it should be deemed that the arbitrarily proceedings have commenced from the date the Section 20 petition was filed and as such the arbitration should proceed and be governed in accordance with the Indian Arbitration Act, 1940. The present dispute as to the applicability of the said Act has been raised without any just cause and in bad faith. Therefore, it is humbly prayed that the petitioners are not entitled to the relief as made in the application under reply.
(5) While disposing of the main petition this court dealt with the arguments advanced on behalf of the Respondent on the applicability of the new Ordinance to the arbitration proceedings in the following manner: All the matters came up for hearing on 13.03.1996. Mr. Harish Salve, learned senior counsel for the respondent in answer to the petition and also the application Ia 2129/95 submitted that the petition under Section 20 of the Arbitration Act, 1940, is not maintainable in view of the Arbitration and Conciliation Ordinance, 1996 (8/1996), in the light of Foreign Award Reconciliation and Enforcement Act, 1961 (45 of 1961). He also submitted that petitioners had already approached the Company court in Bombay and a consent order was passed by the Bombay High Court permitting the respondent to pay the amounts payable by it to the Petitioners staggering the schedule of payment and the respondent had cleared all the dues and the petitioners can approach only the Bombay Court. He also submitted that a reading of the provisions of the agreements would clearly show that the petitioners can institute action only in the United States.
(6) In para 17 of the judgment dated 27.03.1996 this court held: 17. On the plea based on Section 17 of the Ordinance, I do not find any merit in the argument because the matter is governed by the provisions of the Arbitration Act, 1940 and the Ordinance does not apply to the pending proceedings under Section 20. The argument by the learned senior counsel was that by virtue of Section 85 of the Ordinance, 1940 Act stands repealed. Section 85 of the Ordinance reads as under:- “85.Repeal and Saving – (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the ‘Arbitration Act, 1940 (10 of 1940) and the Foreign Awards Recognition and Enforcement) Act, 1961 (45 of 1961) arc hereby repealed. (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Ordinance came into force unless otherwise agreed by the parties but the Ordinance shall apply in relation to arbitral proceedings which commenced on or after this Ordinance comes into force: (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Ordinance.” No provision is made for the pending proceedings and, therefore, General Clauses Act, 1897 will apply and it cannot be contended that the petition pending on the date of the Ordinance automatically comes to an end. Further, when the parties had agreed for the appointment of an arbitrator under Section 20 of the Arbitration Act, 1940, it is not open to the respondent to contend that the applicants shall approach the arbitrator under Section 17 of the Ordinance. It is axiomatic that a party cannot abrogate and reprobate. The respondent obviously is trying to protract the proceedings.”
(7) Now it is not open to the petitioner to say that the proceedings before the Hon’ble Arbitrator shall be under the Arbitration and Conciliation Act, 1996. Accordingly, Ia No. 11967/96 is dismissed. There shall be no order as to costs.