ORDER: The applicants in these applications, are the defendants 1 to 14 in the suit in C.S.No.430 of 2005. Respondents 1 and 2 herein are the plaintiffs and the 3rd respondent herein is 15th defendant in the above said suit. 2. Application No.2490 of 2005 has been filed under Sec.8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) to refer the suit in C.S.No.430 of 2005 for arbitration in terms of the arbitration Clause contained in ‘Escrow Agreement’ signed by the applicants and the second respondent dated 3.7.2000. 3. Application No.2491of 2005 has been filed by the applicants/defendants 1 to 14 for grant of interim stay of all further proceedings in C.S.No.430 of 2005 pending disposal of the application filed by the applicants for referring the suit to arbitration. 4. The brief facts which are required to be stated are that the second respondent/second plaintiff in C.S.No.430 of 2005 entered into an Agreement of Sale with the applicants/defendants 1 to 14 on 3.7.2000 in respect of suit schedule properties. The total sale consideration agreed between the parties was a sum of Rs.2,41,89,462. Simultaneously, the above said Escrow Agreement was also executed on 3.7.2000 between the very same parties which inter alia mentioned that with a view to protect the mutual interest of the owners and Alacrity, it became necessary to appoint an ‘Escrow’ for the purpose of having custody of the original title deeds pertaining to the property, pending payment of second, third and last instalments due to the owners by Alacrity as per the sale agreement dated 3.7.2000. 5. Clause 13 of the said Escrow Agreement contains an arbitration clause, which reads as under: “13. In the event of there being any dispute, the owners and Alacrity may submit any question or issue for consideration by the Escrow, who will decide the same as if it were a dispute referred by way of Arbitration. The Escrow represented by any of its partners will also have all the powers of an arbitrator including passing of awards, interim orders, etc., on the basis of the disputes. The proceedings relating to such disputes shall be conducted by any of them and the venue of arbitration, if any, shall be at Chennai.” 6. A General Power of Attorney was also executed by defendants 1 to 14 in favour of the second plaintiff on 3.1.2001. The proceedings relating to such disputes shall be conducted by any of them and the venue of arbitration, if any, shall be at Chennai.” 6. A General Power of Attorney was also executed by defendants 1 to 14 in favour of the second plaintiff on 3.1.2001. Certain disputes arose as between the second plaintiff and the defendants 1 to 14. On behalf of the defendants 1 to 14, legal notices came to be issued on 6.9.2001, 3.10.2001 and 28.4.2002 to the second plaintiff. Through the above said legal notices, the second plaintiff was informed that the defendants 1 to 14 were no longer bound by the Agreement and that the Agreement stood revoked and cancelled from the date of issue of the notice. 7. On 26.10.2002, second plaintiff came forward with a proposal providing for an addi tional sum of Rs.20,00,000 by way of compensation. One of the Agreement holders, viz., C.B.Ananthakrishnan who is stated to be no more and whose legal representatives are defendants 9, 10, and 11, made an endorsement in the said proposal dated 26.10.2002 to the following effect: “Dear Sir, Thank you for your letter dated 21st November, 2002 with regard to our clarification which has reference to your letter dated 26.10.2002. I hereby accept your offer given in your letter dated 26.10.2002. Thanking You, Yours faithfully, (C.B.Ananthakrishnan)” Sd/-xxxx, In respect of the communication of the second plaintiff dated 26.10.2002, a reply was sent on 2.11.2002 stating that the defendants 1 to 14 were not agreeable to the arrangement mentioned in the letter dated 26.10.2002 and even though the earlier agreement was revoked due to breach committed by the second plaintiff, the parties are not averse to the idea of further negotiations on fresh and different terms. 9. On 23.10.2003, there was an agreement between the first plaintiff and the second plaintiff, wherein, the first plaintiff took over the rights of the second plaintiff agreeing to comply with the payments to be made as per the sale agreement dated 3.7.2000 to the defendants 1 to 14. 9. On 23.10.2003, there was an agreement between the first plaintiff and the second plaintiff, wherein, the first plaintiff took over the rights of the second plaintiff agreeing to comply with the payments to be made as per the sale agreement dated 3.7.2000 to the defendants 1 to 14. Thereafter, on behalf of the first plaintiff, a notice was issued to the defendants 1 to 14 on 9.12.2004 expressing its readiness and willingness to make the balance payments as per the agreement dated 3.7.2000 and called upon them to accept the same and comply with the terms of agreement of sale dated 3.7.2000 in order to proceed further with the project. Failing compliance of the payments, the first plaintiff indicated that necessary legal proceedings would be launched pursuant to the agreement dated 3.7.2000. It is also stated that between 2000 and 2003, a sum of Rs.1,55,76,601 was paid by the second plaintiff to the defendants 1 to 14 as well as the confirming parties in the agreement of sale dated 3.7.2000. 10. Be that as it may, the defendants 1 to 14 entered into a fresh agreement of sale dated 20.4.2005 with the 15th defendant in respect of the very same suit schedule properties which inter alia stipulated that the vendors jointly offered to sell the suit schedule properties for a total sale consideration of Rs.3,41,00,000 out of which Rs.1,45,25,000 to be paid to the second plaintiff in the event of any compromise or to be deposited in Court on orders being passed and after deducting the said amount, the balance sale consideration of Rs.1,95,75,000 or such other sum remaining was agreed to be shared between the vendors proportionately. Clause 02 of the terms of the Agreement of Sale dated 20.4.2005 stipulated as under: “02. Out of the balance sale consideration, a cheque for a sum not exceeding Rs.1,45,25,000 (Rupees one crore forty five lakhs and twenty five thousand only) favouring KESAVARAM, RAM MOHAN, C.J.MOHAN and MAYURNATH and the said cheque shall be kept under the Joint Locker at any nationalized bank for safe custody by way of undated Cheque No.981809, drawn on INDIAN BANK, North Usman Road Branch, Chennai, with an authority to fill up the cheque upto the amount aforesaid either to be paid to M/s. Alacrity Housing Limited. In the event of any compromise arrived at or for the purpose of depositing in Court to the credit of the suit proposed to be filed, to enable the obtaining of the documents from the escrow agents.” (Sic.) 11. Under Clause 09, the vendors covenanted to initiate legal proceedings in the Court of Law to terminate the sale agreement with the second plaintiff at their own costs and to collect all the original title deeds. After collecting the documents, the vendors agreed to hand over the same to the purchasers. In Annexure-I to the said agreement of sale, details of sale advance received by the parties of first part, is mentioned. Similarly, in Annexure-II, details of sale advance received by the parties of second part, is mentioned. In Annexure-III, details of sale advance received by the parties of third part, is mentioned. 12. Pursuant to the said agreement of sale dated 20.4.2005 entered into between the defendants 1 to 14 on the one hand and the 15th defendant on the other, it is stated that the 15th defendant displayed a name board in the property on 24.4.2005 wherein, it appeared that the property is going to be developed by the 15th defendant. It was at that point of time, the plaintiffs came forward with the present suit in C.S.No.430 of 2005 on 27.4.2005 for specific performance as well as for permanent injunction as prayed for therein. Curiously, an application came to be filed in A.No.2400 of 2005 at the instance of the 15th defendant praying for a reference of the suit in C.S.No.430 of 2005 for arbitration under Sec.8 of the Act in terms of arbitration Clause contained in the Escrow agreement signed by the second plaintiff and the defendants 1 to 15. On 24.6.2005, the said application was withdrawn as not pressed and orders were also passed on the same date dismissing the application as withdrawn. In the meanwhile, defendants 1 to 14 filed the present Application No.2490 of 2005 for the very same relief. 13. On 24.6.2005, the said application was withdrawn as not pressed and orders were also passed on the same date dismissing the application as withdrawn. In the meanwhile, defendants 1 to 14 filed the present Application No.2490 of 2005 for the very same relief. 13. Mr.Vijaynarayanan, learned senior counsel appearing for the applicants-defendants 1 to 14, contended that in the light of the fact that the suit is pending in this Court with reference to which, there is an arbitration agreement as between the second plaintiff and the defendants 1 to 14 as all other requirements of Sec.8 having been fulfilled, a reference should be made to the arbitrator as provided under a Clause 13 of Escrow Agreement dated 3.7.2000. The learned counsel relied upon S.Chattanatha Kurayalar v. Central Bank of India Limited and others, A.I.R.1965 S.C.1856: (1966)2 S.C.J.317, Hindustan Petroleum Corporation Limited v. Pinkcity Midway Petroleums, (2003)6 S.C.C.503, Nimet Resources Inc. and another v. Essar Steels Limited, (2000)7 S.C.C.497, P.Anand Gajapathi Raju and others v. P.V.G.Raju (dead)and others, (2000)4 S.C.C.539, Her Highness Maharani Shantidevi P.Gaikwad v. Savjibhai Hari bhai Patel and others, (2001)5 S.C.C.101. 14. As against the above submissions of the learned counsel for the applicants, Shri R.Krishnasamy, learned senior counsel for the respondents 1 and 2 would contend that unlike other cases of reference to be made for arbitration under Sec.8, in the case on hand, in the light of the relief claimed in the suit which not only pertains to defendants 1 to 14, but also as against the 15th defendant whose interest came to be created afresh in regard to the suit schedule properties at the instance of the defendants 1 to 14, the original arbitration agreement will have no force, that the said arbitration agreement did not provide for initiation of arbitration of the breach of agreement of sale dated 3.7.2000 inasmuch as the purport of the arbitration agreement was only to ensure the payment Clause in the sale agreement. Therefore, when the intention of the parties in the surrounding circumstances makes it clear that the arbitration clause is not applicable to the agreement of sale, the present application cannot be maintained. Therefore, when the intention of the parties in the surrounding circumstances makes it clear that the arbitration clause is not applicable to the agreement of sale, the present application cannot be maintained. It was then submitted that in Clause 13 of the arbitration agreement, the expression ‘may’ has been used meaning thereby that it is dependent upon the parties’ discretion to go in for arbitration and the same cannot be held to be a mandatory one. The learned counsel then argued that in the light of the fact that third parties interest viz., the 15th defendant having come into existence, there is no scope to invoke Clause 13 inasmuch as no arbitrator under the said clause can deal with the rights and obligations of the first plaintiff and defendants 1 to 14 vis-à-vis the 15th defendant as the said clause does not provide for such a contingency. The learned counsel also contended that as mala fide is writ large in the action of the defendants 1 to 14, they are not entitled for the relief of a reference to arbitration. Reliance was placed upon the decisions reported in Wellington Associates Limited v. Kirit Mehta, (2000)4 S.C.C.272, Sukanya Holdings Private Limited v. Jayesh H.Pandya and another, (2003)5 S.C.C.531, Abduk Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak and another, A.I.R 1962 S.C.406:(1962)1 S.C.J.620: (1962)1 M.L.J.(S.C.)276: (1962)An.W.R.(S.C.)276, Nimet Resources Inc. and another v. Essar Steels Limited, (2000)7 S.C.C.497, S.Viswa- nathan v. Ashok Leyland Finance Limited and others, (2004)2 C.T.C.266 15. In reply to the above said submissions, Mr. Vijaynarayanan, learned senior counsel for the defendants 1 to 14 attempted to explain certain of the payments made in the year 2002 and 2003 by pointing out that such payments were only made to one of the confirming parties to the agreement dated 3.7.2000 and therefore, that cannot be taken into account for the purpose of deciding the issue. The learned counsel then contended that the acceptance endorsed by Thiru C.B.Ananthakrishnan in the proposal of the second plaintiff dated 26.10.2002 will not alter the terms originally agreed in the agreement dated 3.7.2000. The learned counsel then contended that the acceptance endorsed by Thiru C.B.Ananthakrishnan in the proposal of the second plaintiff dated 26.10.2002 will not alter the terms originally agreed in the agreement dated 3.7.2000. According to the learned counsel though the agreement for taking over of the rights by the first plaintiff with the second plaintiff came to be made on 23.10.2003, the defendants 1 to 14 were left in the lurch till December 2004, when the legal notice on behalf of the first plaintiff came to be issued only on 9.12.2004. It was, therefore, contended that the subsequent agreement of defendants 1 to 14 with the 15th defendant on 20.4.2005 will not in any way affect their rights to seek for arbitration under Sec.8 of the Act. The learned counsel also contended that the Judgment reported in Sukanya Holdings Private Limited v. Jayesh H.Pandya and another,(2003)5 S.C.C.531, relied upon by the learned counsel for the plaintiffs is distinguishable. 16. Mr.R.Sudhakar learned counsel appearing for the 15th defendant would contend that even after the execution of the subsequent agreement dated 20.4.2005, since the terms of the agreement dated 3.7.2000 continue to operate, the subsequent agreement dated 20.4.2005 can be acted upon only after the rights between the second plaintiff and defendants 1 to 14 are once and for all terminated and therefore, the arbitration clause available in the Escrow Agreement can still be worked out. 17. Having heard the learned counsel for the respective parties, and on an analysis of the various facts as well as the documents placed before the Court, I wish to deal with the point raised by Mr.R.Krishnasamy, learned senior counsel for the respondents 1 and 2 based on the decision reported in Sukanya Holdings Private Limited v. Jayesh H.Pandya and another, (2003)5 S.C.C.531 in the first instance. According to the learned senior counsel for the respondents 1 and 2, in view of the coming into existence of the subsequent agreement of sale dated 20.4.2005 between defendants 1 to 14 and the 15th defendant, it is no longer open to the applicants to seek for a reference of the suit in CS 430 of 2005 for arbitration under Sec.8 of the Act. I find considerable force in the said submission of the learned senior counsel. 18. I find considerable force in the said submission of the learned senior counsel. 18. In the decision of the Hon’ble Supreme Court reported in Sukanya Holdings Private Limited v. Jayesh H.Pandya and another, (2003)5 S.C.C.531, the Hon’ble Supreme Court has stated the legal position as under in paras.12 to 15. "12. For interpretation of Sec.8, Sec.5 would have no bearing because it only contemplates that in the matters governed by Part 1 of the Act, the judicial authority shall not intervene except where so provided in the Act. Except Sec.8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the Arbitral Tribunal, if; (1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that the Arbitration Act does not oust the jurisdiction of the Civil Court to decide the dispute in a case where parties to the arbitration agreement do not take appropriate steps as contemplated under Sub-secs.(1) and (2) of Sec.8 of the Act. 13. Secondly, there is no provision in the Act that when the subject matter of the suit includes subject-matter of the arbitration agreement as well as other disputes, the matter is required to be referred to arbitration. There is also no provision for splitting the cause or parties and referring the subject-matter of the suit to the arbitrators. 14. Thirdly, there is no provision as to what is required to be done in a case where some parties to the suit are not parties to the arbitration agreement. As against this, under Sec.24 of the Arbitration Act, 1940, some of the parties to a suit could apply that the matters in difference between them be referred to arbitration and the Court may refer the same to arbitration provided that the same can be separated from the rest of the subject-matter of the suit. The section also provided that the suit would continue so far as it related to parties who have not joined in such application. 15. The section also provided that the suit would continue so far as it related to parties who have not joined in such application. 15. The relevant language used in Sec.8 is: "in a matter which is the subject of an arbitration agreement." The Court is required to refer the parties to arbitration. Therefore, the suit should be in respect of "a matter" which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced - "as to a matter" which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Sec.8. The words ‘a matter’ indicate that the entire subject-matter of the suit should be subject to arbitration agreement." 19. A reading of the above paragraphs, makes it abundantly clear that in order for this Court to refer the case for arbitration in exercise of powers under Sec.8, the issue involved in the suit should be mutatis mutandis subject matter of the arbitration agreement and the Hon’ble Supreme Court made it very clear that if a matter prescribed in Sec.8 of the Act lies outside the arbitration agreement and is also between some of the parties, who are not parties to the arbitration agreement, then application of Sec.8 cannot be invoked. The statement of law in the above said judgment of the Hon’ble Supreme Court to the effect - the words "a matter" would indicate ‘the entire subject-matter of the suit should be subject to arbitration agreement. ‘ 20. In the light of the above ratio laid down by the Hon’ble Supreme Court when the case on hand is analyzed, it is beyond any scope of controversy that defendants 1 to 14 entered into a fresh agreement on 20.4.2005 with the 15th defendant providing for fresh agreement for sale in regard to the suit schedule properties with reference to which, the very same defendants 1 to 14 seek for a reference based on the Escrow Agreement dated 3.7.2000. 21. By virtue of O.1, Rules 1 and 3, C.P.C., it is enjoined upon the plaintiffs to lay the present suit as against defendants 1 to 15 seeking for three different reliefs. 21. By virtue of O.1, Rules 1 and 3, C.P.C., it is enjoined upon the plaintiffs to lay the present suit as against defendants 1 to 15 seeking for three different reliefs. While the relief claimed in para.11(a) of the plaint, is for a specific performance as against defendants 1 to 14, the relief claimed in 11(b) and (c) for permanent injunction, are in the light of averments and allegations contained in the plaint as well as the cause of action pleaded therein. Certainly neither the defendants 1 to 14 nor the 15th defendant can have any say as to in the manner in which the plaintiffs should claim the relief in the suit. It cannot also be said that the impleading of 15th defendant or for that matter, the various averments and allegations in regard to the 15th defendant as well as the relief claimed in para.11(b) and (c) of the plaint were purportedly made in anticipation to non-suit the applicant in an application to be made under Sec.8 of the Act. The sequence of events that took place between 3.7.2000 and 20.4.2005, where apart from the second plaintiff and defendants 1 to 14, the interest of the 15th defendant also came to be created and that too solely at the instance of the defendants 1 to 14. Therefore, the above referred to factors certainly lead to the conclusion that the suit claim is not ‘a matter’, the entirety of which would be subject to the arbitration agreement dated 3.7.2000. On the other hand, it also involves certain other subject matter concerning the 15th defendant which is substantial in nature which is outside the scope of the agreement of sale agreement dated 3.7.2000 as well as the Escrow Agreement dated 3.7.2000 and therefore, there is no scope to ignore such a ‘subject matter’ from consideration and allow the application filed under Sec.8 of the Act for making a reference of the suit for arbitration. If the suit in C.S.No.430 of 2005 is referred for arbitration based on Clause 13 of the Escrow Agreement, then that subject matter would also involve the rights and obligations of not only the second plaintiff and defendants 1 to 14, but also that of the 15th defendant vis-a-vis the other parties. 22. If the suit in C.S.No.430 of 2005 is referred for arbitration based on Clause 13 of the Escrow Agreement, then that subject matter would also involve the rights and obligations of not only the second plaintiff and defendants 1 to 14, but also that of the 15th defendant vis-a-vis the other parties. 22. Though Mr.Vijaynarayanan, learned counsel appearing for the applicants would contend that the ratio of the decision reported in Sukanya Holdings Private Limited v. Jayesh H.Pandya and another, (2003)5 S.C.C.531, is applicable strictly in relation to the facts involved in that case, I am not able to accept the said contention inasmuch as in para.15 extracted above, the Hon’ble Supreme Court has interpreted Sec.8 and has laid down the ‘ratio decidendi’ to be followed as a matter of principle and the said ratio so propounded in the said paragraph, cannot be confined to the facts of that case alone. Equally, the reliance placed upon by the learned counsel on Secs.9 and 17 of the Act cannot also be accepted inasmuch as, I am of the confirmed view that the interest created in favour of the 15th defendant in the suit schedule properties by the defendants 1 to 14 by the Agreement dated 20.4.2005 would not fall within any of the special clauses contained in Sec.9 or for that matter, the interim measures that could be ordered by the arbitral tribunal under Sec.17 of the Act. I am of the view that though the scope for granting relief either under Sec.9 or 17 of the Act, may be of extraneous in nature, where the rights of the 15th defendant having been intertwined with that of the second plaintiff vis-à-vis defendants 1 to 14, I am convinced that the case on hand is squarely governed by the ratio laid down by the Hon’ble Supreme Court in para.15 of its decision reported in Sukanya Holdings Private Limited v. Jayesh H.Pandya and another, (2003)5 S.C.C.531, and consequently, the application filed under Sec.8 of the Act seeking for reference of the suit for arbitration cannot be maintained. 23. 23. The reliance placed upon the decision reported in S.Chattanatha Kurayalar v. Central Bank of India Limited,A.I.R.1965 S.C.1856: (1966)2 S.C.J.317, which has been subsequently followed by the Hon’ble Supreme Court reported in Her Highness Maharani Shantidevi P.Gaikwad v. Savjibhai Haibhai Patel, (2001)5 S.C.C.101, for the proposition that if the transaction is contained in more than one documents between the same parties, they must be read and interpreted together and will have the same legal effect for all purposes as if they are one document. In the case on hand, while the agreement of sale dated 3.7.2000 between the defendants 1 to 14 and the second plaintiff and the Escrow Agreement dated 3.7.2000 between the second plaintiff and the defendants 1 to 14 were contained in two different documents, the learned counsel contended that Clause 13 which provides for arbitration in the Escrow Agreement could still be invoked for the purpose of seeking a reference under Sec.8 of the Act. Though according to learned counsel appearing for the plaintiffs, the arbitration clause found in the Escrow Agreement dated 3.7.2000 was exclusively for a definite purpose contained in that agreement alone which cannot be extended to any dispute relating to the terms contained in the Agreement of Sale dated 3.7.2005 inasmuch as, it is well settled that those issues in the event of the arbitral Tribunal being constituted can be raised only before such tribunal, prima facie, I am not in a position to accept the stand of the learned counsel for the plaintiffs. However, since I have held that in the case on hand, the very application under Sec.8 of the Act cannot be maintained, the said question has become purely an academic one and therefore, I do not find any necessity to answer the said question. 24. The decision reported in Hindustan Petroleum Corporation Limited v. Pinkcity Midway Petroleums, (2003)6 S.C.C.503, was relied upon by the learned counsel for the proposition that the language of Sec.8 is ‘peremptory in nature’ and therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the Court to refer the parties to arbitration and nothing would remain to be decided in the original action if such an application is made except to refer the dispute to the arbitrator. In the said decision, it has been laid down that even if the question is raised that an arbitration clause does not apply to the facts of the case, by virtue of Sec.16 of the Act, it is for the arbitral Tribunal to rule on any such objection with respect to the existence or validity of the arbitration agreement. Here again, in view of my conclusion on the maintainability of application under Sec.8 of the Act based on the decision of the Hon’ble Supreme Court reported in Sukanya Holdings Private Limited v. Jayesh H.Pandya and another, (2003)5 S.C.C. 531 , I do not find any scope to apply this decision also to the facts of this case. 25. The other decision relied upon, viz., Nimet Resources Inc v. Essar Steels Limited, (2000)7 S.C.C.497, relates to the scope of application of Secs.11 and 16 of the Act with which, we are not concerned at present, and therefore, the same cannot also be applied to the facts of this case. 26. As far as the decision reported in P.Anand Gajapathi Raju v. P.V.G.Raju (Dead), (2000)4 S.C.C.539, in para.5, the Hon’ble Supreme Court has laid the conditions which are required to be satisfied under Sub-secs.(1) and (2) of Sec.8 before the Court can exercise its powers, which reads as under: "5. The conditions which are required to be satisfied under Sub-secs.(1) and (2) of Sec.8 before the Court can exercise its powers are: (1) there is an arbitration agreement; (2) a party to the agreement brings an action in the Court against the other party; (3) subject-matter of the action is the same as the subject-matter of the arbitration agreement; (4) the other party moves the Court for referring the parties to arbitration before it submits his first statement on the substance of the dispute." This last provision creates a right in the person bringing the action to have the dispute adjudicated by the Court, once the other party has submitted his first statement of defence. But if the party, who wants the matter to be referred to arbitration applies to the Court after submission of his statement and the party who has brought the action does not object, as is the case before us, there is no bar on the Court referring the parties to arbitration". 27. But if the party, who wants the matter to be referred to arbitration applies to the Court after submission of his statement and the party who has brought the action does not object, as is the case before us, there is no bar on the Court referring the parties to arbitration". 27. In the case on hand, conditions 2 and 3 not being satisfied by the applicant, the application filed under Sec.8 of the Act cannot be ordered. 28. The learned counsel for the plaintiffs relied upon Wellington Associates Limited v. Kirit Mehta, (2000)4 S.C.C.272, which Judgment was rendered by His Lordship Mr.Justice M.Jagannadha Rao in exercise of jurisdiction under Sec.11 of the Act, on being nominated by the Chief Justice of India. It was in that context, the learned Judge, while interpreting the arbitration clause in the matter that came up before the Hon’ble Judge, was pleased to state that where the clause uses the expression ‘may’, then, it cannot be held that such a clause was mandatory in nature in order for the parties to submit to arbitration. In para.18 of the Judgment, the position has been stated as under: “18. Thus, unless the document filed by the party before the Chief Justice of India or his designate is an” arbitration agreement “ as defined in Sec.7 as explained above, requiring a reference in a mandatory sense, no reference, in my view, can be made to the Arbitral Tribunal. It is, already stated, indeed implicit-if an objection is raised by the respondent before the Chief Justice of India or his designate that the so-called arbitration clause is not an arbitration clause at all falling within Sec.7 - that such a question will have to be decided in the proceedings under Sec.11 of the Act. Therefore the contention raised by the learned counsel for the petitioner that the question-whether Clause 5 of the agreement amounts to an arbitration clause - is to be decided only by the Arbitral Tribunal is liable to be rejected.” 29. In the light of my conclusion based on applicability of Sec.8 of the Act and having held that the present application is not maintainable, in the facts and circumstances of the case, I do not find any scope to apply the said decision in the present juncture and the said question is left open to be decided if and when needed. 30. 30. The learned counsel for the plaintiffs relied upon Abdur Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak, A.I.R.1962 S.C.406:(1962)1 S.C.J.620: (1962)1 M.L.J.(S.C.)276: (1962)1 An.W.R.(S.C.)276, for the proposition that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open Court, that would be a sufficient cause for the Court not to order an arbitration agreement to be filed and not to make the reference. In the very same Judgment, the Hon’ble Supreme Court also stated that merely because some allegations have been made that accounts are not correct or that certain items are exaggerated and so on, that is not enough to induce the Court to refuse to make a reference to arbitration and that is only in the cases of allegations of fraud of a serious nature that the Court will refuse to order the arbitration agreement to be filed and will not make a reference. In the case on hand, I do not find any serious allegations of fraud in order to hold that on that ground, the claim for reference for arbitration can be rejected. 31. In the result, in view of my conclusion that the subject matter of the present suit in its entirety does not fall within the ambit of arbitration clause as provided under Clause 13 of the Escrow Agreement dated 3.7.2000, I hold that the present application of defendants 1 to 14 under Sec.8 of the Act is not maintainable and therefore, Application No.2490 of 2005 is dismissed. 32. In the light of the orders passed in A.No.2490 of 2005 dismissing the same, Application No.2491 of 2005 filed for interim stay of further proceedings in C.S.No.439 of 2005, also stands dismissed.