DHARMADHIKARI S.C., J.: - This petition is filed under section 34 of the Arbitration and Conciliation Act, 1996 (for short 1996 Act) to challenge an award dated 21st October, 2003 passed by International Court of Arbitration in Case No. 1107/03/D.K. There are certain alternative prayers but for the purpose of deciding the issue before me it is not necessary to advert to the same.

2. In paras 9 and 10 of petition this is what is stated :-

"9. The petitioner submits that the present petition under section 34 of the Act is maintainable against the impugned award because the agreements between the parties are clearly governed by the law of India. The award in question, therefore, is a domestic award and/or an award under Part I of the Act, although made in Geneva under the I.C.C. Rules. The law declared by this Hon'ble Court in N.T.P.C. and Singer clearly supports the present petition. Recently, the Hon'ble Supreme Court in Bhatia International case has clearly held that Part I of the Act applies to all arbitrations including those made in International Commercial Arbitrations taking place outside India. Part I includes section 34 and, therefore, the present petition is clearly maintainable. It is submitted that courts in India can examine the challenge against the impugned award that is governed by the India laws.

10. That this Hon'ble Court has the necessary territorial jurisdiction to entertain the present petition because inter alia, the agreements in question were entered in Bombay. It is submitted that the Arbitration Agreements were also entered in Bombay. Further, the principal officer of the respondent/claimant is also situated in Bombay. It is, therefore, submitted that the jurisdiction is with this Hon'ble Court."

3. This Court admitted this petition on 1st March, 2004. However, while admitting the petition this Court made it clear that though petition is admitted, the issue of maintainability is expressly kept open.

4. This matter comes before me by virtue of two Notices of Motion taken out in the petition. In substance, the Notice of Motion prays that implementation and execution of the award be suspended pending hearing and final disposal of petition. When the Notice of Motion was placed before me, it was agreed by learned Counsel appearing for both sides that petition itself be listed for hearing and final disposal peremptorily. Hereafter, petition was placed for final disposal on 15th April, 2004. On 16th April, 2004, 22nd April, 2004 and 24th April, 2004, I heard learned Counsel for parties. Since respondent No. 1 persisted with its objection of maintainability, detailed arguments were canvassed by learned Senior Counsel on this issue after research with precision. I am thankful for the assistance rendered by them.

5. The award is challenged in so far as it grants the claim of respondents original respondent No. 1 along with costs and interest. The Arbitral Tribunal directed that a sum of EURO 1,82,786/- be paid by way of compensation and damages for alleged breach of contract together with interest at 9% p.a. from 1st August, 2001 till 21st October, 2003 i.e. the date of the award and thereafter at the rate of 6% p.a.

6. The present award arises out of an agreement dated 12th August, 1996, 7th October, 1996 and agreement for supply of technology and know-how, basic and detailed engineering (technology agreement) dated 6th November, 1996. It is not disputed that the aforesaid agreements were executed by respondent No. 1 - claimants and petitioner for recycling and upgrading plant to convert PET waste to POY and polyester chips in India. The Arbitration clauses are to be found in the supply agreement and the technology agreement in Chapters 12 and 10 respectively. Clauses 12.2 and 10.2 are reproduced herein below :-

"12.2 All disputes arising in connection with this agreement shall be settled through mutual negotiations. In case no settlement can be reached the case may be submitted to an Arbitration Institute