Summary
The Court upheld refusal to appoint an arbitrator where arbitration had been invoked before the 2015 amendment, although the Section 11 application was filed afterwards. The pre-amendment law governed that appointment application, permitting examination of accord and satisfaction. BCCI v. Kochi Cricket, concerning award-challenge and enforcement proceedings, did not render the directly applicable appointment precedents per incuriam. The appeal was dismissed without costs.
Issues
- Whether the 2015 amendment governed a post-amendment appointment application concerning arbitration invoked before its commencement.
- Whether BCCI v. Kochi Cricket displaced the appointment precedents in Parmar Construction and Pradeep Vinod Construction.
- Whether the High Court could examine accord and satisfaction under the applicable law.
Provisions considered
- Section 26, Arbitration and Conciliation (Amendment) Act, 2015For the appointment application at issue, pre-amendment law applied because the arbitration request preceded commencement of the amendment. Later filing of the section 11 application did not itself attract the amended regime; the statutory exception for parties otherwise agreeing remained recognised. (¶¶ 6, 6.1, 7, 9, 9.1, 10)
- Section 21, Arbitration and Conciliation Act, 1996Unless otherwise agreed, proceedings for a dispute commence upon the respondent receiving the request to refer it to arbitration. This statutory commencement rule informed the temporal application of the amendment in the appointment context. (¶¶ 6, 6.1, 7, 9, 9.1, 10)
- Section 11(6) and (6A), Arbitration and Conciliation Act, 1996The restricted examination introduced by subsection (6A) did not govern this application. Under the pre-amendment law, the High Court could consider the final settlement and no-further-claim certificate and refuse appointment on accord and satisfaction. (¶¶ 2.1, 2.2, 2.4, 6, 6.1, 9, 9.1, 10)
Held
- The contractor invoked arbitration before 23 October 2015 but applied for appointment in April 2016. The later court-filing date did not make section 11(6A) applicable to that appointment application. Following Parmar Construction, Pradeep Vinod Construction and S.P. Singla, the Court applied the pre-amendment regime. (¶¶ 2.2, 4.2, 6, 6.1, 7, 9, 9.1, 10)
- BCCI v. Kochi Cricket dealt with proceedings under sections 34 and 36, rather than the specific question of a later appointment application following earlier invocation. Its observations on court proceedings had to be understood in that context. The directly relevant appointment decisions were neither per incuriam nor in conflict with BCCI on the issue before the Court. (¶¶ 7, 8, 9, 9.1)
- Under the governing pre-amendment law, the High Court was entitled to examine accord and satisfaction. Its refusal to appoint, having regard to payment under the final bill and the contractor’s no-further-claim certificate, was upheld. The Court did not apply the amended restriction to examination of the arbitration agreement alone. (¶¶ 1, 2.1, 2.2, 2.4, 6.1, 10)
- The appeal was dismissed, affirming rejection of the appointment application; no order as to costs was made. (¶¶ 10, 11)
Result
Appeal dismissed without costs. Refusal to appoint an arbitrator on accord and satisfaction under the applicable pre-amendment law upheld.