India: Post Amendment Challenge And Enforcement Of Arbitral Awards – Clarification By The Delhi High Court

Last Updated: 19 January 2017
Article by Alishan Naqvee and Manasi Chatpalliwar

Un-amended (Indian) Arbitration Act would continue to apply to challenge and enforcement proceedings concerning awards delivered in arbitrations commenced prior to the amendment. The party challenging such an arbitral award is therefore entitled to an automatic stay on its enforcement without deposit of any money in the court, in keeping with the position prior to the amendment.

I. Introduction

The Delhi High Court ("DHC"), has on January 6, 2017 delivered a significant judgment Ardee Infrastructure Private Limited vs. Ms. Anuradha Bhatia/Yashpal & Sons ("Judgment") holding that a challenge to the enforcement of an arbitral award in cases where arbitration proceedings commenced prior to October 23, 2015 would be governed by the un-amended Arbitration and Conciliation Act, 1996 ("Un-amended Act").

Resultantly, the parties seeking to challenge arbitral awards in cases where the respective arbitrations commenced prior to October 23, 2015, now:

  1. Are entitled to an automatic stay on the execution of the arbitral award once the challenge to the same is filed/admitted. Such a provision for an automatic stay has been specifically done away within the amended Arbitration and Conciliation Act, 1996 ("Amended Act").
  2. Are not required to deposit the awarded amount in the court, which would have otherwise been required if the Amended Act applied and the party initiating a challenge to an arbitral award for money sought a stay on the operation/enforcement of such arbitral award pending the challenge.

II. Background

The Arbitration and Conciliation Act, 1996 was amended on January 1, 2016 with retrospective effect from October 23, 2015. Section 26 of the Amended Act states that:

"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."

Under the Un-amended Act, the filing and pendency of a challenge to an arbitral award, in effect, operated as an automatic stay on enforcement of the arbitral award.

The Amended Act changed this legal position to in effect specify, that the mere filing and admission of a challenge to an award would not operate as an automatic stay on the enforcement of the arbitral award. To seek a stay on the operation/enforcement of the arbitral award under the Amended Act, the party challenging the arbitral award must now file a separate application seeking stay of the operation/enforcement of the arbitral award which may be granted by the court as it may deem fit subject to the conditions for granting the same being recorded in writing.

The Amended Act further specifies that while considering grant of stay in case of an arbitral award for payment of money, courts shall have due regard to the provisions of the Code of Civil Procedure, 1908 relating to grant of stay of a money decree. The provisions prescribe the deposit of money in the court/creation of security by the party seeking the stay corresponding to the decretal amount.

In the case before the DHC:

  • The arbitral award was delivered on October 13, 2015;
  • The Amended Act came into effect from October 23, 2015 onwards;
  • The challenge to the arbitral award was filed before the DHC on January 4, 2016;
  • On May 31, 2016, the single judge bench of the DHC directed the appellants to deposit INR 27 million (approximately USD 393,000) else the challenge against the arbitral award would stand dismissed;
  • Appeal against the above direction of deposit of money was filed before the division (two judge) bench of the DHC, which resulted in the Judgment, which set aside the single judge order to the extent that it required a deposit from the appellants.

III. The Verdict:

In its 30 page judgment, the DHC considered various provisions of the law, arguments and counter-arguments, and finally concluded that to give a harmonious interpretation to Section 26, and to the respective applicability of the Amended and Un-amended Acts, the challenge to the arbitral award in the present case would be governed by the Un-amended Act (i.e. the appellant would not be required to deposit money for seeking stay of the operation and enforceability of the arbitral award). The DHC recorded that the right to an automatic stay upon filing of a challenge was an accrued/vested right of the parties, and as such cannot be taken away retrospectively unless a different intention to that effect appears in the amending law. The DHC further observed that the intention of the legislature while amending the Un-amended Act was not to take away such accrued/vested rights of the parties.

The effect of the DHC's decision is that in all cases where arbitration proceedings have commenced prior to October 23, 2015, the resulting challenge to the arbitral award's operation and enforcement would be governed by the Un-amended Act, irrespective of the date of the arbitral award in such proceedings or the date of filing a challenge to the enforcement of the same. For those arbitral proceedings which commence on or after October 23, 2015, the Amended Act would apply to the entire arbitration proceedings.

While the Judgment endeavours to give a harmonious interpretation, attempting to anticipate legislative intent, it appears to be in conflict with judgments delivered by other High Courts of India on the similar question of the applicability of the Amended Act, including the Kolkata High Court (in the case of Tufan Chatterjee vs. Rangan Dhar, specifically disagreed to by the DHC in the Judgment) and the Mumbai High Court [BCCI vs. M/s Rendezvous Sports World and BCCI vs. Kochi Cricket Private Ltd. (not discussed in the DHC judgment)].

The judicial disagreements lead to an interesting situation where the challenge to the enforcement of arbitral awards in different states of India would for the time being be governed by the Amended or Un-amended Act, depending on the decisions of their respective High Court (whose decisions have a binding effect within the state) or the inclination of such High Court to follow any of the two interpretations by the other High Courts.

The differences are likely to prevail till such time the Supreme Court of India conclusively clarifies the position. The Supreme Court is, in any case, considering the question in certain appeals emanating from High Court judgments on the issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alishan Naqvee
Manasi Chatpalliwar
Similar Articles
Relevancy Powered by MondaqAI
Singhania & Partners LLP, Solicitors and Advocates
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Singhania & Partners LLP, Solicitors and Advocates
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions