- (1.) Present revision petition has been filed under Section 115 of the Code of Civil Procedure for setting aside order dated 25.08.2003 passed by learned Addl. Civil Judge (Senior Division), Patiala whereby execution application filed by the petitioner-decree holder has been dismissed. Brief facts of the case are that the petitioner is a company incorporated under the provisions of the Companies Act, 1956. The petitioner is engaged, inter-alia, in the business of manufacturing and dealing in transformer oil. The petitioner also supplies transformer oil to various electricity boards throughout India. On 21.04.1992 vide Purchase Order-cum-Contract Agreement, the respondent - Punjab State Electricity Board placed an order upon the petitioner for sale, supply and delivery of 250 Kls of transformer oil for Rs. 47,75000/-. Subsequently, the quantity of transformer oil to be sold, supplied and delivered to the respondent by the petitioner was increased to 750 Kls. In pursuance of the purchase order, the petitioner started selling, supplying and delivering transformer oil to the respondent. However, in 1993, the respondent cancelled the purchase order pertaining to the balance quantity of 375 kls. of transformer oil. The dispute arose between the petitioner and the respondent. As per clause 22 of the Contract Agreement, the case was referred to the Arbitrator. On 15.11.1995, arbitrator was appointed under the Indian Arbitration Act, 1940 (hereinafter referred to as the "Old Act"). During the pendency of the proceedings before the Arbitrator, the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "New Act") came into force w.e.f. 16.08.1996. Prior to this an Ordinance was promulgated w.e.f. 25.01.1996. In the month of March, 1996, claim and counter-claim were filed by the respective parties. Ultimately, on 11.03.1908, the arbitrator announced the award and claim of the petitioner to the extent of Rs. 11,88,414/- was accepted while the counter-claim of the respondent to the extent of Rs. 4,04,916.83 was also accepted. As a result, the respondent was directed to pay Rs. 9,26,747.17 to the petitioner within two months. The respondent did not pay the aforesaid amount to the petitioner. Thereafter, the petitioner filed execution application under the New Act to which the respondent filed objections. The Executing Court vide impugned order dated 25.08.2003, accepted the objections filed by the respondent and dismissed the execution application. Hence, this revision petition. The operative part of the impugned order reads as under: 4.... I have given my careful consideration to the submission of both the sides and gone through the authority relied upon by the counsel for the applicant. As per the applicant himself, the matter was referred to the Arbitrator and the Arbitrator was appointed on 15.11.1995 and the Arbitrator announced the award on 11.03.1998. The Arbitration and Conciliation Act, 1996 came into force w.e.f. 25.01.1996. As per Section 85 of the new Act, the provisions of old Act shall apply in relation to arbitral proceedings which commenced before this Act came into force. Although it is further mentioned that the provision of old Act are not applicable if the parties have agreed otherwise. As per clause 22 of the agreement, under which the matter was referred to Arbitrator, it is specifically mentioned that the award shall be final and binding on the parties under the provisions of Indian Arbitration Act, 1940 and the rules thereunder. It is also mentioned that any statutory amendment, modification or re-enactment for the time being in force, shall be deemed to apply. Therefore, although there is agreement that the re-enactment for the time being in force is to apply but it is admitted case that the matter was referred to Arbitrator before the new Act came into force. In the case of M/s. R.K. Goel and Associates the facts were almost similar and it was observed that the provisions of new Act would apply only in the event the application for reference under Section 21 was made after the said Act had come into force. Therefore, this observation also makes it clear that the provisions of new Act are to apply when the reference rest made after the new Act had come into force. As already discussed, in the case in hand reference was made before commencement of new Act. Therefore, in the case in hand the provisions of Arbitration Act, 1940 are applicable. 5. As per Section 17 of the Arbitration Act, 1940 judgment is to be passed in terms of the award and a, decree is also to be passed in terms of the judgment. Admittedly, in the case in hand decree holder had not approached the Court for passing of the judgement and decree as provided under Section 17 of the Act. Therefore, the award is not executable.
(2.) Learned counsel for the petitioner raised following arguments at bar.
(3.) Learned counsel for the petitioner vehemently contended that the approach adopted by the learned Executing Court is not sustainable in the eyes of law. Learned counsel for the petitioner referred to clause 22 of the Contract Agreement which reads as under:-- 22. Arbitration: (a) If at any time any question, dispute or difference, whatsoever shall arise between the purchaser/Board and the Contractor/Supplier, upon or in relation or in connection with the Purchase Order/Contract, either party may forth with give to the other notice in writing of the existence of such question, dispute or difference and the same shall be referred for Sole Arbitration of a nominee of the Purchaser/Board, who shall give a reasoned/speaking awards. The award of the Sole Arbitrator shall be final and binding on the parties under the provisions of the Indian Arbitration Act, 1940 and of the rules thereunder. Any statutory amendment, modification or re-enactment thereof for the time being in force, shall be deemed to apply to and be incorporated in the Contract/Purchase Order. It will not be objectionable if the Sole Arbitrator is an officer of the Board and he has expressed his views on all or any of the matters in question of dispute or difference. (b) Upon every or any such reference, the cost of and incidental to the reference and award respectively shall be in the discretion of Sole Arbitrator so appointed who may determine the amount thereof or direct the same to be taxed as between Solicitor and Client or as between party and party and shall direct by whom and to whom and in what manner the same is to be borne and paid. (c) The work under the contract shall, if reasonably possible, continued during the arbitration proceedings and no payment due or payable by the Purchaser/Board shall be withheld on account of such proceedings.;