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In view of this settled legal position, I do not think that I can permit the learned Counsel for the foreign purchasers to reiterate this question afresh. The first contention, therefore, should clearly be rejected.

7. The learned Counsel for the foreign purchasers therefore, made an attempt to persuade me that the discretion exercised by the learned, District Judge in refusing to stay the suit under Section 34 of the Indian Arbitration Act was not according to the correct legal principles and was wholly for extraneous considerations and unwarranted conjectures and presumptions. It was urged in support of this contention that in view of the finding of the Trial Court which is not disturbed by the first Appellate Court that the contract in question contained an arbitral clause which made the award a condition precedent to any right of action or a suit, which clause is commonly known as Scott v. Averry clause, the absence of obtaining such an award bars any action or suit if commenced for the determination of disputes within the terms of the arbitration clause. In this connection, a great reliance was placed on the decision of the Supreme Court in The Vulcan Insurance Co. Ltd. v. Maharaj Singh and Anr. which ruled that if Scott v. Averry clauses in a commercial contract are couched in a comprehensive language taking within its ambit any kind of dispute arising under the contract then obtaining of an award by arbitration is a condition precedent to the starting of any other legal proceeding, and the clause bars any action or suit if commenced for determination of disputes covered by the said clause. It was, therefore, urged that in view of this finding that there is a Scott v. Averry clause in the commercial contract in question, the suit by the suppliers was not competent as Section 32 of the Arbitration Act, 1940 provides that no suit would li; on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or an award nor shall such an agreement or award be set aside, amended, modified or in any way affected otherwise then as provided by the Act. It was urged that the only course open to the suppliers was to proceed under the Arbitration Act by making appropriate application under Sections 12, 16, 19 or 30 praying the Court to declare that the arbitration agreement had ceased to have any effect. If, contrary to the provision contained in Section 32, a party to the arbitration agreement, which is in the nature of Scott v. Averry clause, commences a legal action in a Court by filing a suit, it would be without the complete cause of action and would be for all intents and purposes premature. It was, therefore, contended by the learned Counsel for the foreign purchasers that in case of such a suit, contrary to the arbitration agreement in nature of Scott v. Averry clause, the defendant is always entitled to pray for the stay of the suit under Section 34 of the Indian Arbitration Act. It was further contended by the learned Counsel for the foreign purchasers that under Section 36 of the Arbitration Act, the Court has always the power to declare that arbitration agreement, which provides for obtaining of an award as a condition precedent to the bringing of an action with respect to any of the matters mentioned in the said agreement, as ceased to have any effect as regards any particular difference. Since no such order has been made by any Court in respect of the suit contract providing arbitration as a condition precedent to any legal action, the suit by the suppliers was incompetent. A number of authorities was relied upon in support of both the above contentions. I do not, however, think it necessary to deal with these contentions as Section 47 of the Arbitration Act, 1940 provides that subject to the provision of Section 46 and save in so far as is provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder. Section 46 provides for application of the Act to statutory arbitrations. In other words, Section 47 makes it clear that subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder. By the use of words "save in so far as is otherwise provided by any law for the time being in force" the Parliament has made it clear that the provisions of the relevant law governing a particular arbitration agreement would apply even though the said provisions may be inconsistent with the provisions contained in Sections. 3 to 38 of the Arbitration Act, 1940.

19. That however is not a decisive of the question which falls to be determined between us; Section 47 of the Arbitration Act, 1940, is as much a part of the Indian Arbitration Act as any other provision and that section makes the provisions of the Arbitration Act applicable to all arbitrations and to all proceedings thereunder but subject to the provisions of Section 46 and save in so far as is otherwise provided by any law for the time being in force. We are not concerned in the present case with a statutory arbitration. But by the use of the words "save in so far as is otherwise provided by any law for the time being in force, "the Legislature has clearly made the provisions of the Arbitration (Protocol and Convention) Act, 1937, applicable to consensual arbitrations prescribed for the application of that Act are attracted, even if the scheme of arbitration recognised thereby is inconsistent with Sections 3 to 38 of the Arbitration Act, 1940. The Arbitration (Protocol and Convention) Act 6 of 1937 was enacted for giving effect to the protocol on arbitration clauses set forth in the First Schedule and of the conventions on the execution of foreign arbitral awards set forth in the Second Schedule and for enabling the conventions to become operative in India.

20. It is not disputed that the proposed arbitration between Traction and Kamani under the Rules of the International Chamber of Commerce is governed by the Protocol on Arbitration Clauses agreed to at Geneva on September 24, 1923, and the protocol in the First Schedule applies. The Arbitration (Protocol and Convention) Act 6 of 1937 being a law otherwise providing for arbitration, the provisions thereof would by virtue of Section 47 be applicable to arbitrations under Section 389 of the Indian Companies Act, 1956, if the conditions regarding their applicability are fulfilled. That Act applies to arbitrations whether parties to the submission are individuals or companies. By virtue of Section 389, Sub-sections (1) and (3) of the Indian Companies Act I of 1956, (before that section was repealed in 1960) an Indian Company may agree to refer differences, between itself and any other company or person by written agreement in accordance with the Arbitration Act, 1940 and the provisions of the Arbitration Act, 1940 apply to all arbitrations in pursuance of the Companies Act to which a company is a party. Arbitration according to the provisions of the Arbitration (Protocol and Convention) Act 6 of 1937 being recognised by the Arbitration Act an agreement to refer disputes in accordance with the rules of the International Chamber of Commerce is not inconsistent with Section 389 of the Companies Act, 1956. In Society Italians per Lavori Maritimes case, Appeal No. 63 of 1959 D/-22-9-1960 (Bom.) the attention of the Court was, it appears, not invited to the provisions of Section 47 of the Arbitration Act, 1940, in its relation to the Arbitration (Protocol and Convention) Act 6 of 1937 and the Court refused to stay the action commenced in contravention of the arbitration agreement on the footing that an arbitration agreement which contemplated reference otherwise than in the manner provided by the Arbitration Act, 1940, Section 1 to 38 was ineffective not being permissible under the provisions of Section 152 of the Companies Act 1913 and "therefore impossible and completely prohibited". This view in our judgment cannot be sustained. In the present case, Kantawalla, J. and the High Court proceeded upon the view (as they were bound to do) that the decision in Societe Italian per Lavori Mariltimi's case, Appeal No. 63 of 1959 D/-22-9-1960 (Bom.) was sufficient to justify the contention of Kamani that the suit could not be stayed, the arbitration agreement being ineffective and invalid. For reasons already set out by us, that assumption cannot be supported. Whether having regard to the terms of Section 3 of the Arbitration (Protocol and Convention) Act 6 of 1937 stay may be granted of, the suit commenced by Katnani is a question on which no decision has been recorded by the Trial Judge nor the High Court and we will not be justified in this appear in entering upon questions of fact for the first time without having the benefit of the view of the High Court on those questions.

In view of the provision contained in Section 46, therefore, I do hot think that it can be successfully urged that the entire scheme contained in Sections 3 to 38 of the Arbitration Act, 1940 would apply in its entirety and that unless the course open to the parties to arbitration agreement under Sections 12, 16, 19 or 30 of the Arbitration Act, 1940 is pursued and a declaration obtained, that arbitration agreement had ceased to have effect, no suit would lie on any ground whatsoever for a decision upon the existence,, effect or validity of the arbitration agreement as enjoined under Section 32 of the said Act. My attention was invited to a decision of the Supreme-Court in Michael Golodotz and Ors. v. Serajuddin and Co. where a Division Bench of the Calcutta High Court in Letters Patent Appeal reversed the order of a learned Single Judge of that Court rejecting the motion of an American exporter company for stay of the suit under Section 34 of the Arbitration Act, 1940 by an Indian Importer for a declaration that the contract between him (Indian Importer) and the American Exporter Company for supply of 25000 tons of manganese ore was void and ineffective and that it stood discharged and for a perpetual injunction restraining the American Exporter Company from taking steps in the purported enforcement of the said contract by referring the dispute to the arbitration of American Arbitration Association in New York pursuant to the arbitration clause. The Division Bench reversed the order having regard partly to the concession made by the Advocate General appearing on behalf of the American Exporter Company that the entire matter was governed by the Indian Laws, the Indian Arbitration Act and the Indian Contract Act. This decision was sought to be relied upon in support of the contention that the provisions contained in the Arbitration Act are applicable to such consensual arbitration and Apriority Section 34 of the Arbitration Act is applicable. I do not think that this submission is well-founded solely on the basis of the decision of the Supreme Court in Michael Golodotz's case (supra), because, the Supreme Court, as observed in paragraph 2 thereof, assumed for the purposes of that appeal, that Section 34 of the Arbitration Act, 1940 invested a Court in India with authority to stay a legal proceeding commenced by a party to an arbitration agreement against any other party thereto in respect of any matter agreed to be referred, even when the agreement is to submit it to a foreign arbitration tribunal. It cannot be said, therefore, that this decision supports the broad proposition sought to be canvassed by the learned Counsel for the foreign purchasers. On the contrary, the decision of the Division Bench of five Judges of the Supreme Court in Societe De Traction et D"Electricite Societe's case (supra) is more applicable in the facts of the present case. In any view of the matter, the decision of the Supreme Court in V/O Tractoroexpon's case (supra) stands in the way of the foreign purchasers before me and inasmuch as that ruling holds the field so far as the Arbitration (Protocol and Convention) Act, 1937 is concerned, I do not think that it will be open for me to take any other view of the matter and interfere with the orders of the Courts below that in absence of a specific submission of the disputes to arbitration. Section 3 of the Arbitration (Protocol and Convention) Act, 1937, cannot be invoked and the suit cannot be stayed. The first and second contentions of the learned Counsel are, therefore, rejected.