JUDGMENT : Abdul Rehim, J. 1. The unsuccessful petitioner in an Arbitration Original Petition before the District Court is challenging the order in O.P. (Arb) 01/2013 of the II Additional District Court, Kollam, dated 6th July 2017. The respondent herein is the respondent before the court below. 2. Bare facts required for disposal of the appeal is as follows: The appellant entered into a contract with the respondent, who is a foreign supplier of raw cashew nuts, for purchase of raw cashew nuts. The contract was signed on 21.8.2012. According to the appellant, there was fraudulent inducement from the side of the respondent in arriving at the terms of the contract, because the respondent had suppressed the material fact that the cargo was already on sail and it was intended to another buyer and that the said buyer had declined acceptance of the goods due to its substandard quality. According to the appellant, when the issue was discussed with the respondent, it was agreed upon to draw up a fresh contract and accordingly a fresh contract was drawn up on 22.8.2012, which was signed by the respondent and received back by the petitioner on 24.8.2012. In Ext.A2 contract dated 21.8.2012 there is a provision incorporated for dispute settlement through arbitration at the “Combined Edible Nuts Trade Association” (CENTA for short). It is the case of the appellant that the cargo was almost damaged and the appellant had to incur heavy expenditure including demurrage, detention charges, transportation charges, drying charges and expenses under other heads. It is stated that the parties have come to a settlement and considerable amount was paid by the appellant. But on 20.11.2012 the appellant received a notice intimating about the reference of the dispute for arbitration by CENTA, issued by the respondent, to which he replied through a letter dated 10.12.2012. The appellant took a contention that CENTA has no role as there was no arbitration clause in the fresh contract executed, Ext.A3. But on 1.1.2013 the appellant received copy of the arbitration award passed by CENTA, dated 20.12.2012. The said arbitration award was challenged before the District Court under Section 34 of the Arbitration and Conciliation Act, 1966 (hereinafter 'the Act' for short) contending that the same is opposed to public policy of India. But on 1.1.2013 the appellant received copy of the arbitration award passed by CENTA, dated 20.12.2012. The said arbitration award was challenged before the District Court under Section 34 of the Arbitration and Conciliation Act, 1966 (hereinafter 'the Act' for short) contending that the same is opposed to public policy of India. Inter alia, it was contended that there exists no arbitration agreement between the parties and CENTA had no jurisdiction to entertain the dispute and to pass the impugned award. 3. The original petition before the District Court was resisted by the respondent, inter alia contending that the seat of arbitration was at London and the conditions of the Trade Association Centre, U.K., including its Rules of arbitration and Rules of appeal is applicable, which provides for an in-house appeal within CENTA itself. Therefore, without exhausting the said remedy the appellant cannot approach the court. It was further contended that the goods were supplied pursuant to Ext.A2 contract and the said contract includes a clause for arbitration and the parties have agreed to be governed by the terms and conditions of CENTA. It was pointed out that the contention of the appellant that Ext.A2 contract is not in existence, is only a futile attempt to get out of the liabilities arising out of the original contract. It is pointed out that the award in question was passed by CENTA with due notice to the petitioner, with respect to nomination of the arbitrator, which was intimated to the petitioner through e-mail on 29.11.2012. But the petitioner had failed to participate in the proceedings. Therefore the petitioner is estopped from challenging the award, was the contention raised. 4. Before the court below the appellant was examined as PW1. The court below had dismissed the application holding that the impugned award being a foreign award passed by CENTA, where the seat of arbitration is at London, Part I of the Act is excluded and the application filed under Section 34 is not maintainable. It is challenging the said finding that the present appeal is filed. 5. For a better appreciation it will be beneficial to have a brief narration about the chequered history of the case. It is challenging the said finding that the present appeal is filed. 5. For a better appreciation it will be beneficial to have a brief narration about the chequered history of the case. When the application under Section 34 was filed before the District Court the respondent had raised a question of maintainability contending that, by virtue of the agreement between the parties there is a specific exclusion of the operation of Part I of the Act, except Section 9 therein. A request was made to consider the question of maintainability as a preliminary issue. Through an interim order passed by the District Court dated 10.1.2014 it was found that the petition under Section 34 is prima facie maintainable, because there exists a dispute as to whether there was due notice to the appellant in the arbitral proceedings. The above said interim order of the District Court was taken up before this court at the instance of the respondent in an original petition filed under Article 227 of the Constitution of India, O.P.(C)No.229/2014. This court dismissed the said original petition through a judgment dated 16.7.2014 by observing that, the contention of the appellant that the contract got novated and the new contract does not contain any clause providing resolution of the dispute as per CENTA terms and conditions, needs consideration. It was observed that, the question as to whether there was a novation of the contract or not, need to be decided after affording the parties to let in oral evidence. Therefore this court directed the court below to advert to the above said question while dealing with the arbitration O.P. on merits. It was found that a piecemeal adjudication on the maintainability cannot be appreciated when the parties are yet to adduce evidence. It was also observed that, merely because the appellant herein can raise similar contentions in a proceedings under Section 48 of the Act, is of no avail. Question as to whether the petitioner herein can raise a plea of fraud or violation of public policy against Ext.A2 contract need to be decided on merits, was the findings. Though the respondent herein had taken up the above said judgment of this court before the hon'ble supreme court, in a Special Leave Petition filed, leave was not granted. 6. Question as to whether the petitioner herein can raise a plea of fraud or violation of public policy against Ext.A2 contract need to be decided on merits, was the findings. Though the respondent herein had taken up the above said judgment of this court before the hon'ble supreme court, in a Special Leave Petition filed, leave was not granted. 6. When the matter was considered by the District Court pursuant to the remand in OP (C) No.229/2014, the respondent made a further request to decide the question of maintainability at the threshold itself, based on decisions of the hon'ble Supreme Court in Videocon Industries Ltd. V. Union of India ( (2011) 6 SCC 161 ) and that of this court in M/s. Abbas Cashew Company V. Bond Commodities and another (2010 (3) KHC 325) and Chi Commodities Handlers Inc V. Ranjith Lal ( 2015 (4) KLT 582 ). But the court below held that a piecemeal adjudication is not possible and dismissed the objections raised by the respondent in this regard. The said order was again challenged by the respondent in an original petition filed before this court under Article 227 as OP No.2983/2016. Referring to the decision in Chi Commodities case (supra), this court had disposed the case through its order dated 05-04-2017 by observing that, there cannot be any dispute with respect to the settled proposition of law that the seat of the arbitral tribunal is governing the issue and the court has to consider whether the arbitration agreement is covered by the Indian law or that of a foreign country. Hence it was observed that, there cannot be much difficulty in deciding the question of maintainability by the court below by giving opportunity to the parties to adduce evidence. Finding that this court had already relegated the matter to the court below through its earlier judgment, it was observed that, the said direction will be binding on the parties. Holding that the old judgment will operate as res-judicata, this court found that the District Court was justified in dismissing the request raised by the respondent herein. However, this court directed the court below to have a disposal of the matter within a time limit stipulated. Thereafter the order impugned in the present appeal was passed by the District Court. 7. However, this court directed the court below to have a disposal of the matter within a time limit stipulated. Thereafter the order impugned in the present appeal was passed by the District Court. 7. First question to be decided in this appeal is as to whether the findings in the impugned order with respect to non-maintainability of the petition under Section 34 of the Act, is legally correct or not. On the facts, it was found by the court below that Ext.A2 agreement contains a clause to the effect that any dispute arising out of the contract, including its validity, shall be resolved by binding arbitration as per CENTA Terms and Conditions; and only Section 9 in Part-I of the Act was made applicable. Hence, it is found that the specific clause in Ext.A2 would reveal that the parties to the contract had agreed to exclude Part-I of the Act, except Section 9. Contention of the appellant before the court below was that Ext.A2 agreement has become extinct in view of Ext.A3 contract executed subsequently. It is the contention of the appellant that he had intentionally avoided the arbitration clause in Ext.A3. According to the appellant Ext.A2 contract was superseded by Ext.A3 and since there is no arbitration clause in Ext.A3, the CENTA had no jurisdiction to pass the impugned award. It was further contended that the impugned award was passed in violation of the principles of natural justice, because there was no notice to the appellant in the proceedings. For deciding the question as to whether Ext.A2 had been superseded by Ext.A3, the court below found that, the contract number mentioned in Ext.A3 is the very same number noted in Ext.A2. Further it was found that, eventhough the appellant contended that Ext.A3 was prepared on 22-08-2012, no such date was noted therein. It was noticed that, all the further communications between the parties, which were marked as Ext.A5 to A17, the same contract number was shown. Based on evidence it was found that, Ext.A3 is only a single page agreement which is made in addition to Ext.A2, prescribing to raise the invoice after deducting the amount of dummerage and ground rent. It was noticed that, all the further communications between the parties, which were marked as Ext.A5 to A17, the same contract number was shown. Based on evidence it was found that, Ext.A3 is only a single page agreement which is made in addition to Ext.A2, prescribing to raise the invoice after deducting the amount of dummerage and ground rent. The District Court had also taken note of the contentions raised by the respondent that, the specific clause in Ext.A2 provides that any amendment, addition or deletion to the contract is valid only if it is made in writing and signed by both parties. Considering the evidence on record, the court below found that there is no convincing evidence to show that Ext.A2 contract was novated by execution of Ext.A3 and there is nothing to indicate that the parties have intended Ext.A2 to be superseded by Ext.A3. It was concluded by the District Court that Ext.A3 is in addition to the terms and conditions of Ext.A2 contract. Hence it was found that the provisions enabling dispute resolution by CENTA is valid and the Rules and Regulations of CENTA will govern with respect to challenge to be made against the arbitral award. 8. While considering the question as to whether the original petition under Section 34 was maintainable or not, we have to consider the legal precedents on the subject. In Bhatia International V. Bulk Trading ( (2002) 4 SCC 105 ), the hon'ble apex court found that, if the parties had agreed to exclude the operation of Part-I of the Act, Section 34 cannot be invoked with respect to a foreign award. But the decision in Bhatia's case (supra) was reconsidered and overruled by the Hon’ble Supreme Court in Bharat Aluminium Company (BALCO) V. Kaiser Aluminum Technical Service ( (2012) 9 SCC 552 ). It was found therein that, with respect to an arbitration by a foreign seated arbitral tribunal, there is a total exclusion of Part-I of the Act. In other words, it was clarified that Part-I of Act 1996 is applicable only with respect to the arbitrations which takes place within the territory of India. It was found therein that, with respect to an arbitration by a foreign seated arbitral tribunal, there is a total exclusion of Part-I of the Act. In other words, it was clarified that Part-I of Act 1996 is applicable only with respect to the arbitrations which takes place within the territory of India. However, the Hon’ble Supreme Court observed that in Bhatia's case (supra) was followed by all the High Courts and other courts in the country and it was followed by the Supreme Court in Venture Global Engineering Company V. Satyam Computer Services Ltd. ( (2008) 4 SCC 190 ). Therefore in order to do complete justice, the apex court in BALCO's case (supra) ordered that, the law declared by the Supreme Court in that case shall apply only prospectively, with respect to all the arbitration agreements executed thereafter. In the case at hand, Ext.A2 agreement admittedly was executed prior to the decision in BALCO's case. Therefore the question with respect to applicability of Part-I of the Act will be governed by the principles settled in Bhatia's case. But as observed by the court below, there is specific exclusion of Part-I of the Act, except Section 9, by virtue of the clause contained in Ext.A2 contract. Therefore the court below was right in observing that the parties have excluded the operation of other provisions in Part-I of the Act. Hence the finding that the provisions of Section 34 is not applicable with respect to the foreign award, which was under challenge, is perfectly sustainable. 9. The court below had considered a further question as to whether the arbitral award is one passed against public policy of India in order to attract provisions under Section 34 of the Act. In this regard the contentions of the appellant based on the decision of this court in Shastha Enterprises and another V. Olam International Ltd. ( 2011 (4) KLJ 208 ) was considered. In the said decision it was held that, if the arbitral award is violative of the public policy of India, it can be challenged under Section 34, despite any specific exclusion with respect to applicability of Part-I of the Act. Per contra, the respondent herein contended before the court below that, the decision in Shastha's case (supra) is no more applicable in the light of the principles settled in BALCO's case (supra). Per contra, the respondent herein contended before the court below that, the decision in Shastha's case (supra) is no more applicable in the light of the principles settled in BALCO's case (supra). In this regard the respondent had placed reliance on a subsequent decision of the apex court in Union of India V. Reliance Industries Ltd. ( (2014) 7 SCC 603 ). The hon'ble apex court held that, even in cases governed by the Bhatia principle, it is only in those cases in which the agreement stipulates that the seat of arbitration is in India or in cases where a judgment cannot be reached with respect to the seat of the arbitration as being outside India, would continue to be governed by those principles. The court below also found that, the respondent herein had filed an application under Section 9 of the Act, simultaneously with the reference made for arbitration to CENTA, seeking attachment, in order to secure the claim. Along with the said application the respondent had produced a copy of the claim petition submitted before the arbitral tribunal at CENTA. It was observed that, the appellant cannot dispute the above fact and there is no basis for the contention that he was not having intimation regarding the arbitral proceedings. The court below further found that the application under Section 34 was instituted without exhausting the in-house remedies as provided under the relevant Rules of CENTA. Referring to a decision of this court in Abbas Cashew's case (supra) it was observed that Section 34 cannot be invoked in challenge of an award of CENTA, without exhausting the in-house remedies. 10. Based on the above discussions, the question mooted herein is, whether the proceedings instituted under Section 34 was maintainable or not. As discussed in the foregoing paragraphs, the issue will be governed by principles settled by the Hon’ble Supreme Court in Bhatia's case (supra). But the specific exclusion of Part-I, except Section 9 of the Act, would render the matter clear and indisputable that the impugned award is of an arbitral tribunal having its seat in a foreign country and that the arbitral proceedings was initiated based on a clause in the contract agreed to between the parties which also contains a specific exclusion of Part-I, except Section 9. Therefore we are of the considered opinion that the District Court was not having jurisdiction to entertain a proceeding under Section 34. 11. In this regard our attention is drawn by the respondent to a very recent decision of the Hon’ble Supreme Court in Imax Corporation V. M/s. E-City Entertainment (I) Pvt. Ltd. ( AIR 2017 SC 1372 ). The apex court observed that, the the place of arbitration determines the law that will apply to the arbitration and related matters like challenges to award etc. If in pursuance of an arbitration agreement, the arbitration took place outside India, there is clear exclusion to Part-I of the Arbitration Act. Under such circumstances, we are of the opinion that the findings of the District Court impugned in the present appeal does not warrant interference. The court below was right in holding that a proceedings under Section 34 would not be maintainable. 12. Learned counsel for the appellant had raised a further contention that, the court below ought not have arrived at any findings with respect to the questions of novation of the contract as well as on the contention regarding violation of the principles of natural justice for want of notice in the arbitral proceedings. It is pointed out that those findings of the court below were unwarranted for arriving at a conclusion with respect to maintainability of the proceedings under Section 34. Further it is pointed out that, those findings contained in the impugned order may in effect take away the rights which are available to the appellant to resist the enforcement of the award on the specific grounds contemplated under Section 48 of the Act. 13. We find that the court below had considered the question regarding the alleged novation of the contract only for the limited purpose of deciding the point as to whether the parties had agreed for arbitration at CENTA and whether there was an agreement for specific exclusion of Part-I of the Act. So also the question whether there was notice in the arbitral proceedings was considered only for the limited purpose to find as to whether the impugned award is in conflict with the public policy of India. But, as rightly pointed out by the learned counsel for the appellant, those findings cannot be taken as an adjudicated verdict on the said issues. But, as rightly pointed out by the learned counsel for the appellant, those findings cannot be taken as an adjudicated verdict on the said issues. We are of the opinion that a conclusive finding on those issues, which was without full adjudication, were not warranted to take a decision on the question of maintainability of proceedings under Section 34 of the Act. Of course, the court below had considered those issues based on the directions contained in the earlier judgments/orders of this court. We are of the opinion that those conclusions cannot be left to remain in any manner causing prejudice to the appellant in any proceedings for enforcement of the arbitration award and the contentions which may be available to the appellant under Section 48 of the Act. 14. Therefore, while dismissing the above Arbitration Appeal, we are inclined to clarify that the findings contained in the impugned order of the District Court on any issues other than the issues on the maintainability of the proceedings under Section 34, cannot be considered as conclusive findings and those issues are left open for agitation in appropriate proceedings.