PINAKI CHANDRA GHOSE, J.

This appeal is directed against an order dated 13th May 2010, whereby His Lordship was pleased to hold that Section 42 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the said ‘Act’) would not apply to either Section 11 or Section 8 contained in Part 1 of the said Act.

The facts of the case briefly are as follows:-

The appellant entered into a contract with the respondent whereby the respondent sold to the Claimant 500 MT of Cold Rolled Galvanized Plain Sheets @ USD 1085.00 per MT on the terms and conditions contained in the said agreement. The material was to be shifted latest of 28th February 2007. The claimant was required to open a confirmed irrevocable Letter of Credit towards price of 250 MT and the balance 250 MT was to supply by the respondent against 10% advance and 90% against documents. The appellant/plaintiff opened the Letter of Credit and paid the advance to the respondent on 23rd February 2007. The respondent in spite of repeated requests failed, neglected and avoided to shift the material as per the contractual terms as prices of the material had gone up considerably. During this period the import licence obtained by the appellant got expired.

The dispute was cropped up between the parties and the dispute was referred to Indian Council of Arbitration (ICA), New Delhi in terms of the Arbitration clause contained in the said agreement. It further appears that the appointment was made by the Honble High Court at Delhi when the Delhi High Court was pleased to appoint Mr. Justice Aloke Chakravorty (Retd.) as Sole Arbitrator in the matter to adjudicate upon the disputes between the parties. The learned Arbitrator duly published his award on 19th January, 2010. The award was served upon the appellant on the same date and thereafter an Execution Petition has been filed before the High Court at Delhi by the appellant and an interim order was also passed by the Honble Delhi High Court on 30th April 2010.

In these circumstances, the respondent filed a petition under Section 34 of the said Act challenging the Award dated 19th January 2010 before this High Court. The Honble Single Judge rejected the objection as to the maintainability of the petition taken by the appellant and directed the appellant to file affidavit in- opposition on merits within four weeks from 13th May 2010.

The question arose before the Honble First Court with regard to the maintainability of the petition filed by the respondent under Section 34 of the Arbitration and Conciliation Act. 1996.

It appears from the fact that the Honble Delhi High Court in exercise of its power conferred under Section 11(6) of the Act while assuming the jurisdiction appointed Mr. Justice Aloke Chakravorty (Retd.) as Sole Arbitrator vide Order dated 11th December, 2007. The respondent herein has filed a petition under Section 34 of the said Act challenging the said award before this Honble Court. It is contended on behalf of the appellant that by virtue of Section 42 of the said Act, it is only the Honble High Court at Delhi has the jurisdiction to entertain and decide all subsequent applications arising out of the Arbitral proceedings. It is further contended that in view of the non-obstante clause contained in Section 42 of the said Act, this Court lacks jurisdiction.

Such contention of the appellant was negatived by the Learned Trial Court. Being aggrieved, this appeal has been filed.

Mr. Narendra Sharma, learned Counsel appearing on behalf of the appellant relied upon a decision reported in 2008(3) CHN 1013 (Visva Bharati Vs. Sarkar and Sarkar) and contended on behalf of the appellant that any order passed under Section 11(6) would be treated as judicial order and that would automatically debar any other Court other than the said High Court to entertain any further application under the said Act of 1996 including the application under Section 34 in view of the non-obstante Clause stipulated in Section 42. Th