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Supreme Court To Examine Conflicting Decisions On Retrospective Impact Of 2015 Amendment To Section 11(6) Arbitration Act
Sohini Chowdhury
26 April 2022 8:50 AM GMT
The Supreme Court has decided to examine whether Section 11(6) as amended by the Arbitration & Conciliation (Amendment Act), 2015 ("2015 Amendment Act") would be applicable to arbitral proceedings commenced before the Court prior to the 2015 Amendment came into force on 23.10.2015, or the cases wherein notice was issued prior to 23.10.2015 or cases where notice invoking arbitration...
The Supreme Court has decided to examine whether Section 11(6) as amended by the Arbitration & Conciliation (Amendment Act), 2015 ("2015 Amendment Act") would be applicable to arbitral proceedings commenced before the Court prior to the 2015 Amendment came into force on 23.10.2015, or the cases wherein notice was issued prior to 23.10.2015 or cases where notice invoking arbitration was issued prior to the amendments.
A Division Bench comprising Justices M.R. Shah and B.V. Nagarathna noted the divergent view on this issue. In Board of Control for Cricket in India v. Kochi Cricket Private Limited And Ors. (2018) 6 SCC 287, a Division Bench of the Apex Court had held that the 2015 Amendment Act would apply to court proceedings filed after it came into effect on 23.10.2015, irrespective of when the arbitration had commenced. It would also apply to the proceedings filed prior to the 2015 Amendment Act, but pending when it came into force. However, in Union of India v. Parmar Construction Company (2019) 15 SCC 682, a Division Bench of the Apex Court had noted that the 2015 Amendment Act would not apply to arbitral proceedings which had commended before 23.10.2015, unless the parties had agreed otherwise. This decision of prospective application was followed in Union of India v. Pradeep Vinod Construction Company (2020) 2 SCC 464.
The Bench noted that in Parmar Construction Company (supra), the decision of BCCI (supra) was neither noticed by the Court nor brought to its the notice by the parties and in Pradeep Vinod Construction Company (supra), the Court followed the ratio in Parmar's case (supra) and did not notice the contrary decision in BCCI (supra).
The Counsel appearing for the petitioner submitted that the cases subsequent to BCCI which had taken a contrary view can be said to be per incuriam. The Court noted that though Pradeep Vinod (supra) was decided by a three judge Bench, reliance was placed on the Division Bench judgment in Parmar (supra). Considering the contrary decision of the Apex Court, the Bench thought it fit to issue notice.
The Bench was hearing a plea assailing the order dated 30.06.20202 passed by the Telangana High Court, wherein it had dismissed an application filed under Section 11(6) of the Arbitration Act for appointment of Arbitrator.
Case Title: M/s Shree Vishnu Constructions v. The Engineer in Chief Military Engineering Service Service And Ors. SLP (C) No. 5306 of 2022
