1. The petition is filed under section 48 of the Arbitration & Conciliation Act, 1996, to enforce a foreign arbitration award dated 26th May, 2009.

2. By this Notice of Motion, the respondent has raised a preliminary objection as to the jurisdiction of this Court to entertain this petition. The objection is that the Respondent having filed Civil Miscellaneous Application No.101 of 2009 before the District Court of Jam Khambaliya, Gujarat under section 34 of the said Act for setting aside the said award prior to the filing of this petition, this Court has no jurisdiction to entertain this petition in view of section 42 of the said Act.

3. Section 42 of the Act is as follows:

“42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.”

I have held that an application under section 34 of the Act to set aside an award falls within the ambit of the phrase “with respect to an arbitration agreement”. Thus if section 42 is applicable, that Court alone in which an application under section 34 is filed before any other relevant application shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court. I have however come to the conclusion that in this case section 42 does not apply as the parties had impliedly if not expressly agreed to the exclusion of Part I of the Act which includes section 42. I have, accordingly, dismissed the Notice of Motion and ordered the petition to be heard on merits.

4. As the Notice of Motion is based only on a question of law, it is necessary to state the facts only briefly.

5. The parties had entered into a contract of affreightment dated 18th January, 2008 for various shipments of bauxite from India to China spread over the period 2008-2010. Clause 28 thereof reads as under:-

“Clause 28. Any dispute arising under this C.O.A. is to be settled and referred to Arbitration in London. One Arbitrator to be employed by the Charterers and one by the Owners and in case they shall not agree then shall appoint an Umpire whose decision shall be final and binding, the Arbitrators and Umpire to be Commercial Shipping Men. English Law to apply. Notwithstanding anything to the contrary agreed in the C.O.A., all disputes where the amount involved is less that USD 50,000/- (fifty thousand) the Arbitration shall be conducted in accordance with the Small Claims Procedure of L.M.A.A.”

6. The respondent terminated the contract raising the ground of force majeure.

7. The petitioner denied the contention, accepted the termination as a repudiatory breach and reserved its right to claim damages. The petitioner lodged a claim for US$ 36 million, invoked the arbitration agreement and appointed an arbitrator. The respondent confirmed that it would appoint an arbitrator shortly, but failed to do so. Instead the respondent raised a new plea to the effect that the contract was illegal and void.

The respondent was afforded another opportunity of appointing an arbitrator, but it chose not to do so. Accordingly, on the petitioner’s application, the English High Court appointed the arbitrator nominated by the petitioner as the sole arbitrator.

8. The respondent filed Special Civil Suit No.55 of 2008 in the Court of Principal Judge at Jam Khambaliya, Gujarat, on 11th November, 2008. An ex parte injunction was passed on the same day restraining the petitioner from taking steps pursuant to the arbitration clause. On the same day, similar suits were filed in respect of three similar contracts against three other parties. Sim