JUDGMENT D.P. Mohapatra, J. - The State of Orissa, represented through the Secretary, Steel and Mines Department of Government of Orissa, has filed these two cases assailing the order dated 16.4.1994 of the Civil Judge (Senior Division), Bhubaneswar in Misc. Case No. 426 of 1993. The said Misc. Case was registered on that application filed by Defendant No. 1, Klochner and Company, A.G. under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961 ('Foreign Awards Act' for short) for stay of Title Suit No. 152 of 1993 By the impugned order the petitioner has been allowed and the suit has been stayed under Section 3 of the Foreign Awards Act. Initially the cases were filed in the court of the Addl. District Judge, Bhubaneswar; subsequently by order of this court dated 6.9.1994 in M.J.C. Nos. 164 and 200 of 1994 they were transferred to this court for disposal. 2. At the outset Sri B.M. Patnaik, learned counsel appearing for State of Orissa submitted that though as a measure of arbundant caution both appeal and revision have been filed he will concentrate on the revision petition. Therefore in the discussions in the judgment reference will be made to the revision petition. 3. The relevant facts necessary for appreciation of the points raised in the case may be Stated thus : The revision petitioner filed T.S. No. 152 of 1993 in the court of the Civil Judge (Senior Division), Bhubaneswar citing the opposite parties as defendants 1 to 3 respectively. In the said suit the plaintiff has sought for the following reliefs : "(a) Declaration declaring that the plaintiff is not the successor of defendant No. 3 and more particularly is not the successor of defendant No. 3 in the context of the claim of defendant No. 1 against defendant No. 3 before defendant No. 2 and (b) Declaration declaring that plaintiff is not liable to pay jointly with defendant No. 3 or otherwise to defendant No. 1 U.S. $ 2,946,938.42 with ten per cent interest or any part thereof as claimed by defendant No. 1 in its request dated 21.4.1993 for arbitration to defendant No. 2 and in its statement of claim appended thereto which request for arbitration and claim defendant No. 1 has got served on the plaintiff through defendant No. 2. (c) Declaration declaring that plaintiff has got no obligation whatsoever under document dated 20.4.1982, nomenclatured as marketing agreement and no obligation whatsoever towards defendant No. 1 under the said document. (d) Declaration declaring that the aforementioned claim of defendant No. 1 against the plaintiff and defendant No. 3 jointly is not a matter agreed either between the defendant No. 1 and defendant No. 3 or between the plaintiff and defendant No. 1 or amongst plaintiff defendant No. 1 and defendant No. 3 to be referred to arbitration under the said document dated 20.4.1982 nomenclatured as marketing agreement or otherwise. (e) Permanent injunction injuncting defendant No. 1 from prosecuting the arbitration proceeding, (bearing reference No. 7878/HV of defendant No. 2) initiated before defendant No. 2 by defendant No. 1 in its said request for arbitration dated 21.4.1993 and said statement of claim dated 21.4.1993 appended thereto. (f) Such other relief/reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case". The agreement dated 20.4.1982 which is discribed as 'marketing agreement' was executed in Germany between M/s. O.M.C. Ltd., Bhubaneswar, India Government of Orissa undertaking) and M/s. Klockner & Co. (Ores, Alloys Pig Iron Department), Duisbur, Federal Republic of Germany. (f) Such other relief/reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case". The agreement dated 20.4.1982 which is discribed as 'marketing agreement' was executed in Germany between M/s. O.M.C. Ltd., Bhubaneswar, India Government of Orissa undertaking) and M/s. Klockner & Co. (Ores, Alloys Pig Iron Department), Duisbur, Federal Republic of Germany. In the said document it is stipulated inter alia that OMC, will establish a plaint at Bamnipal in the district of Keonjhar, Orissa for production of Charge Chrome, that OMC agrees to market its product exclusively through Klockner upon the terms and conditions contained in this agreement and Klockner accepts this arrangement, that during the currency of this agreement OMC shall not be entitled to market its product by direct contracts with purchasers nor shall OMC be entitled to market its product through any agent or distributor other than Klockner; that during the currency of this agreement Klockner shall not be entitled purchase the product from any source in India other than OMC, but it is understood that Klockner is entitled to sell any special type of product purchased from third parties/other sources, to consumers that are unable to use the product of OMC for technical reasons, after duly inforing OMC; that Klockner will advise OMC on all its activities in relation to their sales of the product; that in the event of OMC's producing chrome alloys other than the said product and wishing to sell such other products through Klockner, Klockner will market those products also on an exclusive commence by April, 1985 and basis; that the delivery of the product shall continue over a period of five years, but the agreement shall be not terminated until a total quantity of 250,000 metric tons is delivered and the agreement can be further extended by mutual consent; that if the agreement is terminated by mutual consent or is cancelled according to Clause 16.1; notwithstanding the termination/cancellation of the agreement, the parties shall remain responsible for the fulfilment of any obligations which are outstanding at the time of termination/cancellation of the agreement. The marketing procedure was also set out in the agreement and it was agreed that OMC will pay to Klockner a commission on the sale of the product effected in the territory in consideration of the services rendered by Klockner in terms of the agreement and the commission shall be 4% of the final F.O.B. value of the product sold and the said commission shall be payable to Klockner by way of deduction from each invoice. In the agreement, under the heading Title and Risk, it is stated that risk with respect to each shipment shall pass from OMC to Klockner when the product has been loaded and trimmed on board the vessel, but the title with respect to each shipment shall pass to Klockner when OMC has negotiated the relative shipping documents and received the payment from the negotiating bank. Klockner/OMC in Clause 9.1 it is stated that OMC hereby indentifies Klockner against all claims arising out of non-compliance of contractual obligations on the part of OMC. In Clause 9.2 it is stated Klockner hereby indemnifies OMC against all claims arising out of non-compliance of contractual obligations on the part of the Klockner. In Clause 14, it is stated that in case of force majeure, such as outbreak of war, strikes, accidents, civil commotion, act of sovereign State or unavoidable circumstances beyond their control preventing OMC or Klockner to fulfil the obligations under this contract, the contract shall be suspended for the time such a force majeure does in fact exist. The party claiming force majeure shall furnish evidence of the existence of force majeure to the other party, if required. Clause 15, relates to the arbitration agreement which is important for the purpose of present case. It is quoted hereunder : "16.1. In the remote and unlikely event of there being any dispute or difference whatsoever arising between the parties out of/or relating to the construction, meaning and operation or effect of this contract or the breach thereof shall be settled in the first place by amicable agreement, failing an agreement and disputes arising between OMC and Klockner within the framework of this contract are to be referred to the International Chamber of Commerce. The place of arbitration shall be London or such other place as is mutually agreed upon. The place of arbitration shall be London or such other place as is mutually agreed upon. The law applicable shall be substantial Swiss Law or any other law mutually agreed upon." Subsequently another agreement was entered on 16th February, 1987 between M/s. Orissa Minging Corporation Limited and Orissa Mining Corporation (Alloys) Ltd. which is a wholly owned subsidiary company of OMC Ltd. to implement and establish 100% Export Oriented Unit at Bamnipal, in the district of Keonjhar for manufacturing inter alia, Charge Chrome in which it is stipulated that OMC has already entered into a marketing arrangement with Klockner and Company of the Federal Republic of Germany under which 'OMC' is to market the products of (Alloys' exclusively through 'Klockner'; that 'Alloys' products would be handled through the agency and instrumentality of 'OMC' on the basis of 'OMC's agreement with 'Klockner' for a period of five years effective from the date of this agreement unless otherwise determined by mutual consent and 'Alloys' agree to abide with all the terms and conditions of the marketing agreement relating between 'OMC' and 'Klockner' dated 20th April, 1982 as if 'Alloys' replaced 'OMC'. The materials available on record show that agreement was acted upon by the parties, in pursuance of it a number of contracts were entered between OMC and different foreign buyers through negotiations made by Klockner, 108,429 metric tons of charge chrome were delivered in pursuance of the contracts leaving the balance of metric tons of charge undelivered. By the notification dated 24th September, 1991 of Law Department of the State Government, Orissa Ordinance No. 8 of 1991 was promulgated. In the said Ordinance it is stated inter alia that the Orissa Mining Corporation (Alloys) Limited, a subsidiary of the Orissa Minlag Corporation Limited, was engaged in the production of charge chrome meant exclusively for export; that the said Orissa Mining Corporation (Alloys) Limited was merged with the Orissa Mining Corporation Limited by order dated 30th August, 1991 issued by the Department of Company Affairs of the Government of India and, thereafter, became the Charge Chrome Division of the Orissa Mining Corporation Limited, a Company within the meaning of the Company Act, 1956. It is provided in the ordinance that on and from the appointed day, the Charge Chrome Division of the Company and the right, title and interest of the Company in relation to the Charge Chrome Division shall, by virtue of this Ordinance, stand transferred to, and vest in, the State Government of Orissa; that if on the appointed day, any suit, appeal or other proceeding of whatever nature in relation to any property which has vested in the State Government under Section 3 or instituted or preferred by or against the Charge Chrome Division is pending, the same shall not abate, be discontinued or be, in any way prejudicially affected by reason of the vesting and transfer of the Charge Chrome Division of the Company but the suit, appeal or other proceeding may be continued or enforced by or against the State Government of, where the Charge Chrome Division of the Company is vested under Section 6 in any other company, by or against the other company. In Clause 5, it is laid down that every liability of the Charge Chrome Division of the Company including dues to foreign and Indian Banks shall be the liability of the State Government on which the properties of the Charge Chrome Division has vested and shall be enforceable against the State Government or, where the Charge Chrome Division of the Company is directed to vest in any other company, against the other company. In clause 6, power is given to the State Government to direct by notification that the Charge Chrome Division of the Company and the right, title and interest of the Charge Chrome Division of the Company which have vested with the State Government under Section 3 shall, instead of continuing to vest in the State Government, from the date of publication of the notification of such vesting, vest in the other company. In clause 12, it is laid down that every contract entered into by the Company concerning its Charge Chrome Division or by the Charge Chrome Division itself which has vested in the State Government under Section 3 for any service, sale or supply and in force immediately before the appointed day, shall on and from the appointed day, ceased to have any effect, unless such contract is ratified in writing by the State Government or the other company to which it has been vested under sub-section (2) of Section 6 and in ratifying any such contract, the State Government or the other company may take such alteration or modification therein as it may think fit : Provided however, that the State Government or the other company shall not refuse to ratify a contract or make any alteration or modification therein without affording a reasonable opportunity to the other party to the contract of being heard and unless such contract is unduly onerous or is detrimental to the interest of the State Government or the other company. Shortly after the charge chrome division was taken over by the State Government under the Ordinance, it was transferred to Tata Iron & Steel Co. In the agreement between the State Government and the Company dated 27.9.1991, it was specifically stipulated that Tata Steel shall not be bound or governed by any agreement whatsoever entered into or executed by OMC Alloys Ltd., OMC Ltd. or Government including marketing agreement which is not agreed to be ratified by Tata Steel and any claim, action, liability in respect of such agreement shall be discharged by the Government. After the take over of the Charge Chrome Division and its transfer neither the OMC nor the OMC Alloys nor TISCO took any step for delivery of charge chrome to foreign buyer through Klockner. Attempts by Klockner to have negotiation with OMC or State Government regarding the matter also proved futile. Thereafter, Klockner took steps to refer the dispute for arbitration to the International Chamber of Commerce according to the terms of the agreement. 4. Attempts by Klockner to have negotiation with OMC or State Government regarding the matter also proved futile. Thereafter, Klockner took steps to refer the dispute for arbitration to the International Chamber of Commerce according to the terms of the agreement. 4. On receipt of the notice of the arbitration proceeding on 3.5.1993 at Bhubaneswar, the petitioner filed the suit seeking the reliefs noted earlier As noted earlier in the said suit Klockner and Company filed an application under Section 3 of the Foreign Award Act for stay of the suit which has been allowed by the impugned order. 5. The thrust of submission of Sri B.M. Patnaik, learned counsel appearing for the petitioner was that Section 3 of the Foreign Award Act has no application in the case since the suit has been filed questioning the existence/validity of the contract including the arbitration clause. It is the further submission of Sri Patnaik that the marketing agreement entered between the parties on 20.4.1982 is no an agreement contract, it is merely an arrangement or understanding between the parties; in the alternative, if it is accepted as agreement/contract between the parties it has, been frustrated and rendered unforceable on the passing of Orissa Ordinance No. 8 of 1991. Further under the stipulation in the marketing agreement there was no obligation on he part of the OMC or State Government to dilver any charge chrome to Klockner and Co. and therefore the question of indemnifying the Company for the undelivered quantity of charge chrome does not arise. Sri Patnaik also contended that learned trial judge has not considered all the points urged and all questions raised before him and has not recorded a specific finding on the question whether the conditions necessary for applicability of Section 3 of the Foreign Awards Act are fulfiled in the case. 6. Shri C.S. Vaidyanathan, learned counsel appearing for opposite party No. 1, Klockner and Company on the other hand contended that on the facts and circumstances of the case the learned trial judge rightly came to the conclusion that the defendant No. 1 has made out a case for stay of the suit under Section 3 of the Foreign Awards Act. Shri C.S. Vaidyanathan, learned counsel appearing for opposite party No. 1, Klockner and Company on the other hand contended that on the facts and circumstances of the case the learned trial judge rightly came to the conclusion that the defendant No. 1 has made out a case for stay of the suit under Section 3 of the Foreign Awards Act. He also contended that the suit is not maintainable since the agreement dated 20.4.1982 between the parties was entered in Germany, and the parties have agreed that the place of arbitration will be London and the substantive law applicable to the agreement including the arbitration agreement will be Swiss Law. It is the further submission of Sri Vaidyanathan that the dispute arising between the parties comes within the purview of arbitration agreement which is fairly wide and comprehensive. 7. Since the most question which arises for determination in the case turns on the construction of interpretation of relevant provision of the Foreign Award Act, it will be convenient to quote the said provisions. "Section 2. In this Act, unless the context otherwise requires, 'foreign award' means an award on differences between persons arising out of legal relationships, whether contractual or not considered as commercial under the law in force in India, made on or after the 11th day of October, 1960. (a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the Schedule applies, and (b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be territories to which the said Convention applies. Section 3. (a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the Schedule applies, and (b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be territories to which the said Convention applies. Section 3. Notwithstanding anything contained in the Arbitration Act, 1940, or in the Code of Civil Procedure, 1908, if any party to an agreement to which Article II of the Convention set forth in the Schedule applies, or any person claiming through or under him commences any legal proceedings in any court against any other party to the arbitration agreement or any person claiming though or under him in respect of any matter agreed to be referred to arbitration in such agreement, any party to such legal proceedings may, at any time after appearance and before filing a written statement or taking any other step in the proceedings, apply to the court to stay the proceedings and the court, unless satisfied and the agreement is null and void, inoperative or incapable of being performed or that there is not in fact, any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings. Section 7(1). A foreign award may not be enforced under this Act; (a) if the party against whom it is sought to enforce the award proves to the court dealing with the case that : (i) the parties to the agreement were, under the law applicable to them under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, under the law of the country where the award was made; or (ii) that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (iii) the award deals with questions not referred or contains decisions on matters beyond the scope of the agreement. Provided that if the decisions on matters submitted to arbitration can be separated from those not submitted, that part of the award which contains decisions on matters submitted to may be enforced; or (iv) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (v) the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made; or (b) if the court dealing with the case is satisfied that : (i) the subject-matter of the difference is not capable of settlement by arbitration under the law of India, or (ii) the enforcement of the award will be contrary to public policy. (2) If the court before which award is sought to be relied upon is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority referred to in sub-clause (v) of clause (a) of sub-section (1), the court may, if it deems proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to furnish suitable security. S. 9. Nothing in this Act shall - (a) prejudice any rights which any person would have had of enforcing in India any award or availing himself in India of any award if this Act had not been passed, or (b) apply to any award made on an arbitration agreement governed by the law of India." 8. Construing the provisions of Sections 3 and 7 of the Act, the Apex Court in the case of Renusagar Power Co. Ltd. v. General Electric Company and another ( AIR 1985 SC 1156 ), held : "Section 3 opens with a non obstante clause giving overriding effect to the provisions contained therein and making it prevail over anything to the contrary contained in the Arbitration Act, 940 or the Code of Civil Procedure, 1908. Ltd. v. General Electric Company and another ( AIR 1985 SC 1156 ), held : "Section 3 opens with a non obstante clause giving overriding effect to the provisions contained therein and making it prevail over anything to the contrary contained in the Arbitration Act, 940 or the Code of Civil Procedure, 1908. Secondly, unlike Section 34 of the Arbitration Act which confers a discretian upon the court, the section uses the mandatory expression 'shall' and makes it obligatory upon the court to pass the order staying the legal proceedings commenced by a party to the agreement if the conditions specified therein are fulfilled. The conditions required to be fulfilled for invoking Section 3 are : (i) there must be an agreement to which Article II of the Convention set forth in the Schedule applies; (ii) a party to that agreement must commence legal proceedings against another party thereto; (iii) the legal proceeding must be 'in respect of any matter agreed to be referred to arbitration' in such agreement; (iv) the application for stay must be made before filing the written statement or taking any other step in the legal proceedings; (v) the court has to be satisfied that the agreement is valid, operative and capable of being performed; this relates to the satisfaction about the 'existence and validity' of the arbitration agreement; (vi) the court has to be satisfied that there are disputes between the parties with regard to the matters agreed to be referred; this relates to effect (scope) of the arbitration agreement touching the issue of arbitrability of the claims. x x x x x The phrase 'in respect of any matter agreed to be referred to the arbitration' occurring in Section 3 cannot be construed as covering only the disputes or claims on merits which have been referred to the arbitrators. There is nothing in the section which warrants the placing of such narrow construction on the relevant phrase. What matters are agreed to be referred to arbitration will depend upon what language is employed by the parties to the arbitration agreement and there is nothing in law or equity which prevents the parties from referring even the question of existence, validity or effect (scope) of the arbitration agreement itself to the arbitrators. What matters are agreed to be referred to arbitration will depend upon what language is employed by the parties to the arbitration agreement and there is nothing in law or equity which prevents the parties from referring even the question of existence, validity or effect (scope) of the arbitration agreement itself to the arbitrators. Secondly the scheme of Sections 3 and 7 of the Foreign Awards Act clearly suggests that the relevant phrase would include even questions of existence, validity and effect (scope) of the arbitration agreement. The scheme that emerges on combined reading of Section 3 and 7 of the Foreign Awards Act clearly contemplates that questions of existence, validity or effect (scope) of the arbitration agreement itself, in case where such agreement is wide enough to include within its ambit such questions may be decided by the arbitrators initially but their determination is subject to the decision of the court and such decision of the court can be had either before the arbitration proceedings commenced or during their pendency, if the matter is decided in a Section 3 petition or can be had under Section 7 after the award is made and filed in the court and is sought to be enforced by a party thereto. In the face of such scheme envisaged by the Foreign Awards Act is cannot be said that the arbitrators will have no jurisdiction to decide questions regarding the existence, validity or effect (scope) of the arbitration agreement. In fact the scheme makes for avoidance of dilatory tactics on the part of any party to such agreement by merely raising a plea of lack of arbitrator's competence and frivolous plea at that and enables the arbitrator to determine the plea one way or the other and if negatived to proceed to make his award with the further safeguard that the court would be in a position to entertain and decide the same plea finally when the award is sought to be enforced. As regards the American decision in Becker Auto Radio case it may be stated, as pointed out by Counsel for G.E.C. that the point was not decided but the statement or observation was made on concession of the parties; and as regards statement of law at pages 91-92 in Russel on Arbitration it must be pointed out that the passage pressed into service by Counsel is merely a half portion of the statement of law but the fuller statement of law, gives a different picture. There is nothing in the general law of arbitration either English or Indian which prevents the arbitrators or an umpire from deciding questions of their own jurisdiction provisionally or tentatively and to proceed to make their awards on that basis, though it is clear that their provisional or tentative decision on question of their own jurisdiction would be subject to the final determination by the court and if the court takes a contrary view their award will not be given effect to and this is exactly the scheme of the Foreign Awards Act." Dealing with the question of difference between the scheme of Foreign Awards Act and that of the Arbitration Act, the court made the following observations : "The scheme of the Foreign Awards (Recognition and Enforcement) Act (1961) and the Arbitration Act, (1940) materially differ on several aspects. An examination of Sections 3, 4 and 7 of the Foreign Awards Act in juxtaposition with Sections 32, 33 and 34 of the Arbitration Act brings out these differences. Under Section 32 of the Arbitration Act suits to challenge the existence or validity of an arbitration agreement or award as also suits to have the effect (scope) of an arbitration agreement determined are barred and such questions can be raised only by an application under Section 33 of the Act whereas under the Foreign Awards Act there is no provision similar or akin to Sections 32 and 33 but by virtue of Sections 3 and 7 the same purpose is served though by different procedure. Sections 3 and 7 read together disclose a scheme that so far as questions of existence, validity and effect (scope) of the arbitration agreement are concerned, the determination thereof by the arbitrators is also subject to the decision the court and this decision of the court can be had either before the arbitration proceedings commence or during their pendency, if the matter is decided by the court in Section 3 petition or can be had under Section 7 after the award is filed in the court and is sought to be enforced under Section 6. True, Section 4(2) declares that a foreign award shall be treated as binding 'for all purposes' on persons as between whom it is made but that is subject to Section 7 whereunder enforcibility thereof is made dependent upon satisfaction of certain conditions specified therein. In effect, Section 3 of the Foreign Awards Act so to say combines in its own ambit both Sections 33 and 34 of the Arbitration Act. Further the Foreign Awards Act has also taken cognizance of the possibility that there may not be a Section 3 petition at all the matter being directly proceeded before the arbitrators and the possibility of the arbitrators giving a decision on an issue not within their competence or jurisdiction and in such case section 7 contains a safeguard which prevents and such award from being made enforceable. Such being the scheme under the Foreign Awards Act decisions of courts on similar or analogous provisions contained in the Arbitration Act would not be of any help to decide questions arising under the Foreign Awards Act. Such being the scheme under the Foreign Awards Act decisions of courts on similar or analogous provisions contained in the Arbitration Act would not be of any help to decide questions arising under the Foreign Awards Act. The broad principle that an arbitrator has no power to determine questions of his own jurisdiction (which include questions regarding the existence, validity and effect s.e. scope of the arbitration agreement) and that neither English law nor Indian law allows these questions to rest with the arbitrator would be hardly applicable to any foreign award made under the Act emerging from a combined reading of Sections 3 and 7 clearly shows that so far as the questions of existence, validity and effect (scope) of the arbitration agreement are concerned, the determination thereof by the arbitrators is subject to the decision of the court and that this decision of the court can be had under Section 7 even after the award is made and filed in the court but before it is made enforceable; Sections 7(1)(a)(i) and (iii) shows that the award can be challenged on these grounds which imply that the arbitrators have decided those questions while making their award." In another case between the same parties (General Electric Co. v. Renusagar Power Co. (Rep. in (1987) 4 SCC 137 ), the Apex Court reiterated the position noted above and held : "While Section 34 of the Indian Arbitration Act vests in the court the discretion to stay or not to stay the proceedings, Section 3 of the Foreign Awards (Recognition and Enforcement Act vests no such discretion in the court. Under the Foreign Awards (Recognition and Enforcement) Act it is mandatory that the proceedings should be stayed if the conditions prescribed are fulfilled. But the application of the defendant to the court, be it under Section 34 of the Indian Arbitration Act or Section 3 of the Foreign Awards (Recognition and Enforcement) Act, may be filed 'before filing a written statement or taking any other step in the proceedings'. It is competent then only and not thereafter." In the said case the court further observed that the broad and general right of a person to seek redressal of his grievances in a court of law is subject to the right of the parties to have the disputes settled by a forum of mutual choice. It is competent then only and not thereafter." In the said case the court further observed that the broad and general right of a person to seek redressal of his grievances in a court of law is subject to the right of the parties to have the disputes settled by a forum of mutual choice. Neither right is insubstantial and neither right can be allowed to be defeated by any manner of technicality. The right to have the dispute adjudicated by a civil court cannot be allowed to be defeated by vague or amorphous mis-called agreements to refer to 'arbitration'. On the other hand, if the agreement to refer to arbitration is established, the right to have the dispute settled by arbitration cannot be allowed to be defeated on technical grounds. The Apex Court in the case of M/s. V/o. Tractoroexport, Moscow v. M/s. Tarapore & Co. Madras another ( AIR 1971 SC 1 ), construing Section 3 of the Foreign Awards Act made the following observations : "Ordinarily, a party which has entered into a contract of which as arbitral clause forms an integral part should not receive the assistance of the court that it seek to ? But in the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow of the institution of the suit. The only proper course to follow is to restrain the Russian Firm which has gone to the Moscow Tribunal for adjudication of the disputes from getting the matter decided by the tribunal so long as the suit here in pending and has not been disputed of." In that connection the court further observed : "Although it is a moot point whether Section 35 of the Arbitration Act, 1940, will be applicable to present case (Shiva Jute Baling Ltd. v. Hindley & Co. Ltd. ( 1960 (1) SCR 569 = AIR 1959 SC 1357 ), it was assumed that Section 35 applied to protocol arbitration), the principle embodied in that section cannot be completely ignored while considering the question of injunction. Ltd. ( 1960 (1) SCR 569 = AIR 1959 SC 1357 ), it was assumed that Section 35 applied to protocol arbitration), the principle embodied in that section cannot be completely ignored while considering the question of injunction. According to that section no reference nor award can be rendered invalid by reason only of the commencement of legal proceedings upon the subject of the reference but when legal proceedings upon the whole of the subject matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire, at further proceedings in a pending reference shall, unless a stay of proceedings is granted under Section 34, be invalid. If the venue of the arbitration proceedings has been in India and it the provisions of the Arbitration Act of 1940, had been applicable the suit and the arbitration proceedings could not have been allowed to go on simultaneously, and either the suit would have been stayed under Section 34 or it. it was not stayed, and the arbitrators were notified about the pendency of the suit, they would have had to stay the arbitration proceedings because under Section 35 such proceedings would become invalid if there was identify between the subject matter of the reference and the suit. In the present case when the suit is not being stayed under Section 3 of the Act it would be contract to the principle underlying Section 35 not to grant an injunction restraining the Russian Firm from proceeding with the arbitration at Moscow. The principle essentially is that the arbitrators should not proceed with the arbitrators side by side in rivalry or in competition as if it were a Civil Court". The Apex Court in the case of National Thermal Power Corporation v. Singer Company and others ((1992) 3 SCC 351 = 1992 (2) Arb. LR 154), constructing Section 2 of the Arbitration Act, 1940 in the light of the facts of the case that the contract was entered between Indian Company with a Foreign Company containing the arbitrator clause held : "The proper law of the arbitration agreement is normally the same as the proper law of the contract. It is only in exceptional cases that it is not so even where the proper law of the contract is expressly chosen by the parties. It is only in exceptional cases that it is not so even where the proper law of the contract is expressly chosen by the parties. Where, however, there is no express choice of the law governing the contract as a whole, of the arbitration agreement as such, a presumption may arise that the law of the country where the arbitration is agreed to be held is the proper law of the arbitration agreement. By that is only a rebuttable presumption - The validity, effect and interpretation of the arbitration agreement are governed by its proper law. Such law will decide whether the arbitration clause is wide enough to cover the dispute between the parties. Such law will also ordinarily decide whether the arbitration clause binds the parties even when one of them alleges that the contract is void, or voidable or illegal or that such contract has been discharged by breach of frustration .... The proper law of arbitration will also decide whether the arbitration clause would equally apply to a different contract between the same parties or between one of those parties and a third party. The parties have the freedom to choose the law governing an international commercial arbitration, agreement. They may choose the substantive law governing the arbitration agreement as well as the procedural law governing the conduct of the arbitration. Such choice is exercised either expressly or by implication. Where there is no express choice of the law governing the contract as a whole, or the arbitration agreement in particular there is, in the absence of any contrary indication, a presumption that the parties have intended that the proper law of the contract as well as the law governing the arbitration agreement are the same as the law of the country in which the arbitration is agreed to be held. On the other hand, where the proper law of the contract is expressly chosen by the parties; as in the present case, such law must, in the absence of an unmistakable intention to the contrary, govern the arbitration agreement which, though colateral or ancillary to the main contract is nevertheless a part of such contract." On the facts of the case, the court held : "The law expressly chosen by the parties in respect of all matters arising under their contract, which must necessarily include the agreement contained in the arbitration clause, being Indian law and the exclusive jurisdiction of the courts in Delhi having been expressly recognized by the parties to the contract in all matters arising under it, and the contract being most intimately associated with India, the proper law of arbitration and the competent courts are both exclusively India, while matters of procedure connected with the conduct of arbitration are left to be regulated by the contractually chosen rules of the ICC. The ICC Rules provide for settlement by arbitration of business disputes of an international character. They furnish an institutionalized procedure of arbitration. These rules being a self contained or a self regulating code, they operate more or less independently of judicial interference in the conduct of arbitration, except insofar as they conflict with the public policy or the mandatory requirements of the governing system of the proper law or the procedural law of the place of arbitration. Party autonomy in international business is thus the guiding principle of the self-regulating mechanism envisaged by the ICC Rules, and interference by any court with the actual conduct of arbitration is to a large extent avoided. The Foreign Awards Act, 1961 has no application to the award in question which has been made on an arbitration agreement governed by the law of India." Construing the definition of foreign award in the Foreign Awards Act the Apex Court observed : "...... To qualify as a foreign award under the Act, the award should have been made in pursuance of an agreement in writing for arbitration to be governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 and not to be governed by the law of India. To qualify as a foreign award under the Act, the award should have been made in pursuance of an agreement in writing for arbitration to be governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 and not to be governed by the law of India. Furthermore, such an award should have been made outside India in the territory of a foreign State notified by the Government of India as having made reciprocal provisions for enforcement of the Convention. These are the conditions which must be satisfied to qualify an award as a 'foreign award'. An award is 'foreign' not merely because it is made in the territory of a foreign State, but because it is made in such a territory on a arbitration agreement not government by the law of India. An award made on an arbitration agreement governed by the law of India, thought rendered outside India, is attracted by the saving clause in Section 9 of the Foreign Awards Act and is therefore, not treated in India as a foreign award." 9. Testing the case at hand on the touch stone of the principle enunciated in the decided cases discussed above, the position is manifest that the parties to the arbitration agreement have decided that the place of arbitration shall be London and the law applicable shall be substantive Swiss Law. My attention has not been drawn to any stipulation in the agreement nor any other material which directly or impliedly shows that the intention of the parties was that Indian Law will be applicable to the Arbitration Agreement. As noted earlier, Klockner & Co. is a company registered in the Federal Republic of Germany and the agreement of 20-4-1982 was entered in Germany. It is not the case of the petitioner that the award which may be passed in this case is not a foreign award as defined in Section 2 of the Foreign Awards Act, but is a domestic award. In that view of the matter there is little scope for doubt that the provisions of the Foreign Awards Act, particularly Section 3 are applicable to the case. As held by the Apex Court in the case of Renusagar Power Co. (supra) stay of the suit is mandatory if the conditions specified in Section 3 are fulfilled. In that view of the matter there is little scope for doubt that the provisions of the Foreign Awards Act, particularly Section 3 are applicable to the case. As held by the Apex Court in the case of Renusagar Power Co. (supra) stay of the suit is mandatory if the conditions specified in Section 3 are fulfilled. The averments in the plaint and the objections filed to Section 3 petition do not make out the case that the agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred. The trial court has specifically held that the circumstances to prove exception under the statutory provision have not been established. At the cost of repetition I may state that it is clear from the materials on record that the agreement was acted upon by the parties, in pursuance of it contracts were entered between OMC Ltd. and OMC Alloys Ltd. with foreign buyers and Klockner & Co. was paid its dues relating to the transactions. In the circumstances, the learned Trial Judge was right in holding that a case for stay of the suit under Section 3 of the Foreign Awards Act has been made out by the opposite party No. 1-Defendant. The order is therefore unassailable. Thus the cases being devoid of merit are dismissed. There will however be no order for costs. Appeal dismissed. *-*-*-*-*