Delivering a final answer to a series of appeals questioning the construction of Section 26 of the Amendment Act of 2015, the Supreme Court pronounced its judgment affirming that the amended Section 36 of the Arbitration Act is applicable to all Section 34 applications filed before the enactment of the 2015 amendment. Justices Rohinton Fali Nariman and Navin Sinha delivered the judgment while giving a detailed interpretation of Section 26 of the Amendment Act which reads as follows:
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 but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.
While delivering the interpretation of Section 26 of the Amended Act, the Supreme Court pointed out that when a Section 34 petition is filed after the commencement of Amendment Act and an application for stay has been made under Section 36, the amended provisions will apply. The Apex Court further elaborated that:
“From a reading of Section 26 as interpreted by us, it thus becomes clear that in all cases where the Section 34 petition is filed after the commencement of the Amendment Act, and an application for stay having been made under Section 36 therein, will be governed by Section 34 as amended and Section 36 as substituted.”
The Apex Court held that Section 36 refers to the execution of an award as if it were a decree, attracting the provisions of Order XXI and Order LXI, Rule 5 of the Code of Civil Procedure and would, therefore, be a provision dealing with the execution of arbitral awards. The court also clarified that since execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of the commencement of the Amendment Act.
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