SANJAY KISHAN KAUL, J.

( 1 ) 1. The present petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 ('the said Act' for short) seeking to challenge an order passed by Mr. Wilfred Lakra, Sole Arbitrator on 09. 01. 2007. The dispute between the parties has a past history. An agreement was stated to be entered into between the parties on 15. 03. 1995 which contained an arbitration clause. This agreement was subsequently stated to be replaced by an agreement dated 16. 12. 1995 which also contained an arbitration clause but provided that only the Managing Director of the respondent could act as a sole arbitrator.

( 2 ) AN arbitrator was earlier appointed being Mr. N. L. Kakkar to adjudicate upon the disputes between the parties who made and published an award dated 18-01. 1999. This award was challenged by the petitioner by filing a petition under Section 34 of the said Act in OMP No. 367/99 which was decided on 26. 09. 2001. It was held that the petitioner did not have notice of the arbitration proceedings or the award and thus the award was liable to be set aside. It was also held that since the subsequent agreement provided only for the Managing Director to be the arbitrator and not a nominee of the Managing Director, as was permissible under the earlier agreement, the appointment of Mr. N. L. Kakkar was bad in law.

( 3 ) THE respondent aggrieved by the same filed an appeal being F. A. O (OS) 123/2001 before a Division Bench of this Court which was dismissed by the Order dated 23. 09. 2002. A Special Leave Petition thereafter filed being SLP (Civil) No. 1811/2003 was also dismissed on 10. 02. 2003. It is thereafter that a fresh letter of invocation was sent and the Managing director proceeded to act as the sole arbitrator.

( 4 ) ON the second round of arbitration commencing, the petitioner took an objection that there was no remission or remand by the Court, the arbitrator was functus officio and the proceedings are barred by law of limitation. The arbitrator came to the conclusion that since the merits of the claim of the parties were never examined and the award was set aside inter alia on the ground that the earlier arbitrator was not duly appointed in terms' of the arbitration clause, nothing prevented an arbitration in accordance with the arbitration clause from commencing afresh. It is this order which is now sought to be challenged by the petitioner.

( 5 ) LEARNED counsel for the respondent has raised a preliminary objection to the maintainability of the present petition under Section 34 of the said act. This plea is based on the provision of Section 16 of the said Act which reads as under:

"16. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the arbitral tribunal that the contract is null and void shall riot entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub section (2) or sub section (3), admit a later plea if its considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub section (2) or sub Section (3) and, where the a