Judgment M.R. Shah, J.—Present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure 1908 has been preferred by the appellant herein - original plaintiff of Civil Suit No. 11 of 2007 pending in the Court of learned Principal Civil Judge, Jam Khambaliya challenging the impugned order dated 20.06.2007 passed by the learned Principal Senior Civil Judge, Jam Khambaliya passed below Exh. 5 interim injunction application submitted under Order 39 Rule 1 and 2 of CPC passed in Civil Suit No. 11 of 2007 by which the learned Trial Court has rejected the said application Exh. 5 submitted by the appellant - original plaintiff, restraining the original defendant No. 1, its officer, agents etc. from continuing the arbitration proceedings before the International Chamber of Commerce against the plaintiff or from initiating further proceedings before the I.C.C. New York, in respect of all dispute arising out of or in connection with the Alumina contract dated December 12, 2005. 2. Appellant herein - original plaintiff Ashapura Minechem Limited (for short ‘AML’) had instituted Civil Suit No. 11 of 2007 in the Court of learned Principal Senior Civil Judge, Jam Khambaliya for declaration that plaintiff - AML is not bound by the terms of Alumina Contract (for short ‘the contract’) dated 12.12.2005 between defendant No. 1 - Ormat Primary Aluminum Corporation (for short ‘Ormat’) and defendant No. 2 Ashapura Minechem UAEFZE including but not limited to Clause 14 of General terms and conditions of the Alumina contract and also for a declaration that AML is not bound/liable/obliged to perform Alumina contract dated 12.12.2005 in any manner whatsoever. AML - original plaintiff has also prayed for permanent injunction restraining defendant No. 1 - Ormat, its Officers, owners, employees representatives, agents and any person claiming through Ormat, by a perpetual order and injunction from continuing arbitration proceedings against original plaintiff - AML before the International Chamber of Commerce or against any other authority against AML - original plaintiff in respect of any dispute arising out of or in connection with the said Alumina contract. 3. It is the case on behalf of the AML - original plaintiff in the aforesaid suit that one M/s. Ormat Corporation a corporate affiliate of defendant No. 1 - Ormat Alumina Corporation during ordinary course of business was purchasing bauxite from AML from time to time. 3. It is the case on behalf of the AML - original plaintiff in the aforesaid suit that one M/s. Ormat Corporation a corporate affiliate of defendant No. 1 - Ormat Alumina Corporation during ordinary course of business was purchasing bauxite from AML from time to time. By the bauxite Sale Contract dated 25.10.2005 M/s. Ormat Corporation agreed to purchase 450,000 tones of metallurgical grade Indian Bauxite in nine shipments of approximately 50,000 metric tons each between the period from February, 2006 to December, 2006 from AML for consideration and on the terms and conditions more particularly set out in the bauxite contract. 3.1 Said M/s. Ormat Corporation accepted deliveries of bauxite until July 2006 under bauxite contract and also accepted invoices raised by AML from time to time. That substantial amount was outstanding and payable by M/s. Ormat Corporation to AML. That Ormat Corporation has not yet paid to the AML said amount or part thereof. That defendant No. 2 - AMUEAFZE under Alumina contract dated 12.12.2005 agreed to purchase sandy calcined metallurgical grade alumina from original defendant No. 1 - Ormat for consideration and on the terms and conditions more particularly set out in the alumina contract. 3.2. That AMUEAFZE - original defendant No. 2 has its own officers and directors, its offices and bank accounts and it conducts its own business transaction independent of its shareholder, AML - original plaintiff. By the aforesaid alumina contract, AMUAEFZE agreed to purchase and take of 130,000 metric tons quantity of alumina from defendant No. 1 - Ormat for fixed price of US # 521 per metric ton and on the terms and conditions more particularly set out in the alumina contract. That under the said alumina contract delivery terms were FOB burnside and delivery of the alumina was to be mutually agreeable shipload quantities to be shipped between April 2006 and June, 2006. That certain disputes and differences have arisen between Ormat defendant No. 1 and AMUEAFZE-defendant No. 2 with regard to alumina contract. That Ormat defendant No. 1 gave notice of intention to arbitrate dated 14.09.2006. That certain disputes and differences have arisen between Ormat defendant No. 1 and AMUEAFZE-defendant No. 2 with regard to alumina contract. That Ormat defendant No. 1 gave notice of intention to arbitrate dated 14.09.2006. That thereafter, after waiting for four months, by claim dated January 16, 2007, defendant No. 1 has invoked the arbitration clause of alumina contract (Clause 14) and has initiated arbitration in New York, USA by making an application to the International Chamber of Commerce (ICC) inter-alia for recovery of alleged indicative damages of Rs. 110 Crores caused by AMUEAFZE - defendant No. 2 of its obligations under the Alumina contract. 3.3. It is the case on behalf of the plaintiff - AML that notwithstanding fact that AML is not party to the Alumina contract, Ormat defendnat No. 1 has named ALM as party respondent to the said arbitration. That reference to the arbitration has been made by Ormat solely based on Clause 14 of general terms and conditions of Alumina contract to which plaintiff AML is not party. 3.4. It is further averred in the plaint that with a view to avoid making payment of legal dues of AML - plaintiff, defendant No. 1 made AML plaintiff as party respondent in the arbitration proceedings initiated before ICC despite the fact plaintiff is not party to alumina contract, therefore, plaintiff is constrain to file suit for aforesaid declaration and permanent injunction. It is further averred in the plaint that plaintiff has filed reply to the application of Ormat - defendant No. 1 under protest and without prejudice to the rights and contentions including that fact that plaintiff is not a party to any arbitration agreement and that defendant No. 1 as such ought to have dropped the ormat as party to the said arbitration. It is further averred that it is the contention on behalf of Ormat in its application to the ICC that AML should be required to arbitrate and it should be held liable, if AMUEAFZE - defendant No. 2, if found to be liable. It is further averred that it is the contention on behalf of Ormat in its application to the ICC that AML should be required to arbitrate and it should be held liable, if AMUEAFZE - defendant No. 2, if found to be liable. It is the case on behalf of the plaintiff in the aforesaid plaint that AMLUEA - defendant No. 2 is independent legal entity incorporated under the laws of United Arab Emirates with limited liability and that Ormat - defendant no1’s attempt to pierce the corporate veil to obtain relief from a party with which it did not execute the alumina contract are without any justification and based on incorrect description of relevant facts. It is the case on behalf of the plaintiff –AML that AML and defendant No. 2 i.e. AMUAEFZE are separate and independent corporate entities; that AML is corporation incorporated under the laws of India while AMUAEFZE - defendant No. 2 is incorporated under the laws of UAE as a limited liability entity. Therefore, it is submitted that if Ormat defendant No. 1 is allowed to continue proceedings against AML, there shall be no distinction between a limited liability entity and entity with unlimited liability. With respect to cause of action and jurisdiction by way of amendment it is pleaded by AML original plaintiff that as factory premises of AML is situated at Khambaliya and handling of the company affairs of the company is also been done through Khambaliya Office and if award is passed recovery can only be done by execution proceedings at Khambaliya as plaintiff has no substantial property at Mumbai Office. Therefore, Court at Khambaliya has jurisdiction to try the suit with respect to cause of action. It is also pleaded by way of amendment as per Para 16(a) that cause of action has accrued to the AML - plaintiff when plaintiff - AML was served with notice of arbitration on 12.09.2006 and it was transmitted at Khambaliya and Khambaliya office as well as Khambaliya factory is directly affected and likely to be affected and hence, cause of action has also arisen within the jurisdiction of Khambhalia Court. 3.5. That in the said Suit, AML - plaintiff submitted interim injunction application Exh. 3.5. That in the said Suit, AML - plaintiff submitted interim injunction application Exh. 5 under Order 39 Rule 1 and 2 of CPC, 1908 restraining Ormat - original defendant No. 1, its Officers, owners, employees, representatives/agents and any person claiming through it from continuing arbitration proceedings before ICC against plaintiff - AML or initiating further proceedings by AMUAEFZE or against any authority against plaintiff - AML in respect of any dispute or from alumina contract dated 12.12.2005 pending hearing and final disposal of aforesaid Suit. At the time of hearing of application Exh. 5 learned Advocate for the plaintiff AML submitted and reiterated what is stated in the plaint referred to herein above. Learned Advocate for the plaintiff also submitted prima-facie case, balance of convince and irreparable loss and requested to grant injunction as prayed for mainly on the ground that AML is not a signatory to contract dated 12.12.2005 containing arbitration clause. That plaintiff - AML is unnecessarily dragged into arbitration proceedings and arbitration proceedings are to be conducted at New York, USA, therefore, plaintiff has to incur heavy expenditure to contest arbitration proceedings. 4. Application for interim injunction was opposed by Ormat defendant No. 1 firstly by submitting that no cause of action has arisen within the geographical territorial jurisdiction of Court at Khambaliya and that registered Office of plaintiff AML is at Mumbai and notice with respect to initiation of arbitration proceedings has been served upon plaintiff AML at Mumbai and that no cause of action at all has arisen within territorial jurisdiction of Court at Khambaliya. It was submitted that as such plaintiff AML is subsidiary and share holder of defendant No. 2 - AMLUEA and therefore, any award is passed considering relevant clause of USA, plaintiff AML would be liable to satisfy the same. It was further submitted that as such original plaintiff has already submitted application before ICC raising similar objections which are raised in the present suit and as per relevant rules of ICC it is only the ICC who has got jurisdiction to decide objections raised by plaintiff AML. It was further submitted that even plaintiff AML has already appeared before Arbitral Tribunal and prayed for time vide communication dated 23.02.2007. It was further submitted that even plaintiff AML has already appeared before Arbitral Tribunal and prayed for time vide communication dated 23.02.2007. Therefore, it has submitted that once plaintiff has participated in the Arbitral proceedings, all the questions which are raised in the plaint and present suit, are required to be considered and dealt with by ICC and Arbitral Tribunal and therefore, it was requested to vacate ad interim injunction. 5. That the learned Principal Senior Civil Judge, Jam Khambaliya by impugned order dated 20.06.2007 rejected interim injunction application below Exh. 5 submitted by the appellant herein - original plaintiff AML. That being aggrieved and dissatisfied with the impugned order passed by the learned trial Court in rejecting the same, appellant herein - original plaintiff has preferred present Appeal from Order under Order 43 Rule 1 and 2 of CPC with Civil Application for interim relief therein. 6. Mr. Mihir Joshi, learned Senior Advocate with Mr. Satyan Thakkar, learned Advocate has appeared on behalf of the appellant herein - original plaintiff - AML. It is submitted by Mr. Joshi, learned Senior Advocate that as appellant is third party to the arbitration agreement relied upon by Ormat - defendant No. 1 for invoking jurisdiction of arbitral Tribunal and therefore, AML cannot be compelled to submit to arbitration and learned trial Court ought to have granted interim injunction as prayed for. 6.1. It is submitted that arbitrator or arbitral Tribunal is a forum chosen by the consent of all the parties as an alternate to resolve the dispute by the ordinary forum of law courts. Law of arbitration aids in the implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the party. Arbitration is essentially a consensual matter and forcing a non - signatory party to go for arbitration will be an anathema. It is submitted that arbitrator/arbitral Tribunal derives jurisdiction from the agreement and consent. It is submitted that it is accepted position appellant - AML is not signatory to alumina contract containing general terms including arbitration (Clause 14) which has been executed between AMUAEFZE and Ormat which contracts defines parties to mean the said two companies alone. 6.2 It is submitted that correspondence between AML - plaintiff and defendant No. 1 has not resulted and cannot be construed giving rise to a binding contract between the said two parties. 6.2 It is submitted that correspondence between AML - plaintiff and defendant No. 1 has not resulted and cannot be construed giving rise to a binding contract between the said two parties. It is further submitted that moreover said correspondence in the course of negotiations does not contain any reference whatsoever to dispute resolution by arbitration and therefore, there is certainly no agreement in writing as contemplated by law between the said two parties for reference or disputes to arbitration. 6.3. Mr. Joshi, learned Senior Advocate for appellant has relied upon following decision in support of his above submissions. 1. Novartis Vaccines & diagnostics Inc vs. Aventis Pharma Ltd. and Ors. reported in 2007 GLHEL - MH 136003 - Paras 55, 56 2. India Household and Healthcare Ltd. vs. LG Household and Healthcare Ltd. reported in 2007(5) SCC 510 - Paras 11,12,13, 21 3. Dharma Prathishthanam vs. Madhok Construction (P) Ltd. reported 2005(9) SCC 686 - Paras 7, 19 4. First Options of Chicago vs. Manuel Kaplan and Ors. reported in LEXSEE 115 SCT 1920 page 9 7. Mr. Joshi, learned Senior Advocate appearing on behalf of the plaintiff - AML has further submitted that even otherwise appellant is within its right to apply to the Civil Court for challenging the jurisdiction of an arbitral Tribunal which according to it, has been established though such Tribunal has no jurisdiction. 7.1. It is submitted by him that a party who seeks to challenge the jurisdiction of an arbitral Tribunal has four options to it which are also provided for and contemplated under the Arbitration and Conciliation Act, 1996. It is submitted that such a party has following four options: (i) Boycott the arbitration, permit it to proceed ex-parte and seek setting aside of the award or resist enforcement thereof on grounds of lack of jurisdiction after the final award has been passed. (ii) Raise the objection of jurisdiction with the arbitral Tribunal itself as a preliminary issue. (iii) Apply to the national Court for resolution of the issue of jurisdiction seeking an injunction restraining the arbitral Tribunal from proceedings along with a declaration that it has no jurisdiction for example on the basis that there was no valid arbitration agreement. The other alternative is that a party may seek adjudication of the disputes on merits before the national Court. The other alternative is that a party may seek adjudication of the disputes on merits before the national Court. (iv) Participate in the arbitration and then challenge the award in the Courts of the country in which the arbitration took place and/or refuse to implement the award and wait for the successful party to enforce the same. (Sections 34, 48). 7.2. It is submitted that in the event a party applies to the Civil Court for a declaration that the arbitrator or the arbitral Tribunal does not have jurisdiction and seeks injunction restraining it from proceedings the Civil Court would proceed to adjudicate the issue since the jurisdiction of the Civil Court is not ousted even by the existence of an arbitration agreement and will pronounce on the issue unless defendant seeks reference to arbitration under Section 8 or Section 45 of the Act. At this stage, Mr. Joshi has relied upon decision of the Hon’ble Supreme Court in the case of Bhatia International vs. Bulk Trading S.A. and Anr. reported in 2002 (4) SCC 105 (Para 20) and in the case of Sukanya Holdings (P). Ltd. vs. Jayesh H. Pandya and Anr. reported in 2003 (5) SCC 531 (Para 12). 8. It is further submitted by Mr. Joshi, learned Senior Advocate appearing on behalf of the appellant - plaintiff that contention on behalf of the Ormat - defendant No. 1 that an aggrieved party cannot apply to the Civil Court for such declaration and injunction after the arbitration proceedings have commenced, that is, after submission to arbitration, is incorrect and cannot be accepted. 8.1. It is submitted that aforesaid would imply that jurisdiction of the Civil Court is ousted to that extent. It is submitted that there is no such bar under the Act and such exclusion cannot be read in by implication, since ouster of jurisdiction has to be express and cannot be implied. He has relied upon the decision of the Hon’ble Supreme Court in the case of Bhatia International vs. Bulk Trading S.A. And Anr. reported in 2002 (4) SCC 105 . 8.2. It is submitted that Section 5 of the Act does not support this contention, it does not oust the jurisdiction of the Civil Court. It is submitted that what is provided is that in mattes governed by Part I of the Act no judicial authority should intervene except where so provided. reported in 2002 (4) SCC 105 . 8.2. It is submitted that Section 5 of the Act does not support this contention, it does not oust the jurisdiction of the Civil Court. It is submitted that what is provided is that in mattes governed by Part I of the Act no judicial authority should intervene except where so provided. According to Mr. Joshi, learned Senior Advocate filing of a suit at any stage, even in a matter which is the subject of an arbitration agreement is not barred. It is submitted that such suit may relate to the existence or validity of the arbitration agreement, may relate to the scope of the arbitration agreement or may even seek adjudication of the disputes on merits. It is submitted that Section 8 and Section 45 of the Arbitration Act by necessary implication contemplate that unless a party applies for reference of the disputes brought by way of the suit to arbitration, the Civil Courts will continue to have the jurisdiction to adjudicate the aforesaid issues including issues regarding merits of the disputes between the parties and grant necessary reliefs either interim or final as may be warranted in the facts of the case. It is submitted that once such an application is moved and the conditions of Section 8 and Section 45 are fulfilled, the disputes shall be referred to arbitration and the Civil Court would cease to have jurisdiction over the subject matter. 8.3. It is submitted that Section 16 grants competence to the arbitral Tribunal to rule on its own jurisdiction. It does not oust the jurisdiction of the Civil Court to adjudicate this issue in a suit brought before it, unless a party to the suit seeks reference of the dispute brought by way of such suit to arbitration and complies with the conditions of Section 8. 8.4. It is submitted that a dispute by way of a suit, brought by a non-signatory to an arbitration agreement is by its very nature, a matter which is not the subject of an arbitration agreement and would not be governed by Part I or Part II at all and therefore, the bar under Section 5 would not operate or apply. It is submitted that a dispute by way of a suit, brought by a non-signatory to an arbitration agreement is by its very nature, a matter which is not the subject of an arbitration agreement and would not be governed by Part I or Part II at all and therefore, the bar under Section 5 would not operate or apply. It is submitted that Section 8 and Section 45 accept by necessary implication that the Civil Court would continue to have jurisdiction in an action brought before it in a matter which is not the subject of an arbitration agreement. It is submitted that aforesaid position is further strengthened in cases relatable to foreign awards since Section 45 in Part II of the Act relating to enforcement of foreign awards providing for referring a dispute before the Court to arbitration, contains a non-obstante clause which makes Section 16 inapplicable. It is submitted that Section 45 confers wider jurisdiction on the Civil Court at the stage of considering a request for reference to arbitration than under Section 8, so as also to cover issue whether the arbitration agreement on the basis of which reference is sought, is null and void, inoperative or incapable of being performed, unlike the inquiry contemplated under Section 8 which is limited only to the extent of adjudicating whether the matter in the suit is also the subject of an arbitration agreement between the parties. At this stage, Mr. Joshi, learned Senior advocate has relied upon decision of Delhi High Court (Bharti Televentures Ltd. vs. DSS Enterprises Private Ltd. reported in (2005) 123 DLT 532 - Para 12). 8.5. Mr. Joshi, learned Senior Advocate has further submitted that even legislative history of Section 45 also does not support the contention of defendant No. 1 - Ormat and Courts have interpreted similar provisions in the earlier statute as disclosing a scheme that the determination of questions of existence, validity and effect of arbitration agreement by decision of the Civil Court in cases relatable to foreign awards, can be had either before the arbitration proceedings, commenced or even during their pendency. It is submitted that earlier Section 3 of the Foreign Awards (Recongnition and Enforcement) Act, 1961 contemplated stay of proceedings brought before the Civil Court and Section 45 contemplates reference of the dispute to arbitration. It is submitted that earlier Section 3 of the Foreign Awards (Recongnition and Enforcement) Act, 1961 contemplated stay of proceedings brought before the Civil Court and Section 45 contemplates reference of the dispute to arbitration. It is submitted that prerequisites for exercise of such power by the Civil Court are identical though the result is different. Moreover, a stay of suit granted under Section 3 would have the effect of disposing off the suit for all practical purposes, which is the consequence of an order under Section 45. Section 3 of the Foreign Awards Act, 1961 as it was originally enacted contemplated commencement of legal proceedings against any other party to the submission made in pursuance of an agreement, which was interpreted by the Supreme Court in the case of Tractors Export Moscow vs. Tarapore and Company ( AIR 1970 SC 891 ) to be applicable only where there had been an actual reference to arbitration, meaning thereby that the proceedings were pending. It is submitted that to give full effect to the convention and in order to bring out the intention clearly that the Section would be applicable in all cases covered by an arbitration agreement, it was substituted by Section 47 of 1973 to read that where any person commences any legal proceedings in any Court against any other party to the agreement, the Section would apply. It is submitted that aforesaid amended Section has been interpreted by the Hon’ble Supreme Court in the case of Renusagar Power Corporation vs. General Electric Company and Ors. reported in ( AIR 1985 SC 1156 - Para 52) holding that Section 3 and Section 7 of the Foreign Awards Act which is similar to Section 45 and Section 48 of the Act, disclosed a scheme that so far as question of existence, validity and scope of the arbitration agreement are concerned, the determination thereof by the arbitrators was subject to the decision of the Court and the decision of the Court could be had either before the arbitration proceedings commenced or during their pendency if the matter is decided under Section 3, or could be had under Section 7 after the award was made and sought to be enforced. It is submitted that in the case of Venture Global Engineering vs. Satyam Computer Service Ltd. reported in (2008) 4 SCC 190 (Paras 7, 33, 37 and 41) the Hon’ble Supreme Court has upheld the jurisdiction of the Civil Court in respect of a suit seeking declaration of invalidity, even after a foreign award was passed. It is submitted that somewhat similar view has been taken by the Bombay High Court in the case of Global Marketing Direct Ltd. vs. GTL Limited reported in 2004 (0) GLHEL- MH 128872. 8.6. It is submitted that even otherwise it would be unconscionable and against public policy to deprive an objecting party of a right to challenge the jurisdiction of a Tribunal before the Civil Court only because the other party has invoked its jurisdiction first. It is submitted that it would amount to compelling a party to follow the procedure relating to arbitration though, as in this case, it is not even a party thereto. 8.7. It is submitted that observations of the Hon’ble Supreme Court in the case of Shin-Etsu Chemical Co. Ltd. vs. Aksh Optifibre Ltd. and Anr. reported in 2005 (7) SCC 234 to the effect that Section 45 of the Act envisages pre-reference judicial interference with the arbitral process are neither ratio decidendi or obiter dictum. It is submitted that the issue did not arise for consideration in the said case and such observation is not the principle of law that decided cannot be relied upon in support of a proposition that it did not decide. It is submitted that similarly the observations in Bhatia International (Supra) to the effect that challenges to existence or validity of the arbitration agreement or the jurisdiction of the arbitral Tribunal would have to be made before the Tribunal cannot constitute any principle of law since the Court was not called upon to decide the issue at all and the ratio of the said case was only regarding the jurisdiction of an Indian Court to grant an injunction even if the venue of arbitration was not in India. 8.8. It is submitted that even aforesaid contention would only truncate the rights of an objecting defendant in the Civil Court. It is submitted that Section 45 provides for a request by a party for reference of a pending suit or action to arbitration. 8.8. It is submitted that even aforesaid contention would only truncate the rights of an objecting defendant in the Civil Court. It is submitted that Section 45 provides for a request by a party for reference of a pending suit or action to arbitration. It is submitted that it does not deal with the filing of such suit or action by the plaintiff thereof. It is submitted that therefore, Section 45 cannot bar the filing of the suit before or during the arbitration proceedings or even thereafter. If the request for reference under Section 45 is restricted only to pre-reference cases, the suit would proceed in all other cases, without any provision for reference to arbitration in such cases. 8.9. It is submitted that Section 8 providing for reference to arbitration in case where the place of arbitration is in India, also contemplates pendency of arbitration proceedings simultaneously with the action in the Civil Court and an application for reference made by an objecting party vide Sub-section (3) of Section 8 of the Arbitration Act. It is further submitted that in any case, it is necessary to emphasize that the interpretation of Section 45 is neither determinative nor relevant since the suit filed by the appellant is not an action in a matter in respect of which the parties have made an agreement referred to in Section 44 of the Arbitration Act and such suit is wholly outside the purview of the Arbitration and Conciliation Act, 1996 and clearly maintainable in the Civil Court. 8.10. Mr. Joshi, learned Senior Advocate appearing on behalf of the appellant - AML has further submitted that even otherwise whatever provided under Section 8 and Section 16 of the Arbitration Act, 1996 would not be applicable in case of foreign awards I.e. provided under Section 45 of the Arbitration Act. It is submitted that Section 8 and Section 16 are in Part I of the Arbitration Act and Section 45 and other relevant provisions are in Part II. 9. Mr. Joshi, learned Advocate appearing on behalf of the appellant - original plaintiff has submitted that even otherwise the Civil Court ought to have granted injunction in favour of the AML. It is submitted that learned trial Court ought to have noted that defendant No. 1 - Ormat had not filed application under Section 45 for reference to arbitration. 9. Mr. Joshi, learned Advocate appearing on behalf of the appellant - original plaintiff has submitted that even otherwise the Civil Court ought to have granted injunction in favour of the AML. It is submitted that learned trial Court ought to have noted that defendant No. 1 - Ormat had not filed application under Section 45 for reference to arbitration. Therefore, defendant No. 1 had no objection to the jurisdiction of Civil Court for considering the matter on merits and therefore the Court which undoubtedly had the jurisdiction to grant the injunction in a matter brought before it, ought to have applied the principles of prima facie case, balance of convenience and prejudice applicable to the grant of temporary injunction and there was no question of refusal of injunction on the purported ground of an alternative remedy being available under the arbitration proceedings initiated by defendant No. 1 - Ormat. He has relied upon decision of the Delhi High Court [Bharti Televentures Ltd. 123 (2005) DLT 532 Para - 14] (Supra). 9.1. It is submitted by Mr. Joshi, learned Senior Advocate appearing on behalf of the appellant - original plaintiff that original plaintiff has strong prima facie case. It is submitted that appellant is not a signatory to any arbitration agreement with defendant No. 1 and the arbitration proceedings initiated by the defendant No. 1 are clearly without jurisdiction. It is submitted that findings of the Court that appellant is a shareholder of defendant No. 2 - AMUAEFZE which has executed the alumina contract and is therefore, bound by the terms thereof is contrary to law since a company has under law a corporate personality, which is distinct from its shareholders. It is submitted that doctrine of lifting the corporate veil has no application to the facts since the corporate entity has not been used as an instrument of fraud and in any case such a contention has neither been taken by defendant No. 1 nor considered by the Court. 9.2. It is submitted that by not granting injunction, the appellant would be compelled to arbitrate and therefore, it was necessary for the Civil Court to have applied the principles of Section 45 for considering whether or not to grant the injunction. 9.2. It is submitted that by not granting injunction, the appellant would be compelled to arbitrate and therefore, it was necessary for the Civil Court to have applied the principles of Section 45 for considering whether or not to grant the injunction. It is further submitted that agreement is clearly null and inoperative insofar as the appellant is concerned, which issues have to be determined under Indian law as contemplated by Section 45 and therefore, injunction ought to have been granted against continuation of arbitration on the basis of such agreement. 9.3. It is further submitted that even balance of convenience/prejudice is also in favor of the appellant. It is submitted that as stated above, the appellant - original plaintiff a non-signatory to the arbitration agreement, would be compelled to undertake an enormous amount of expenditure for participating in the international commercial arbitration initiated by defendant No. 1 merely to establish an obvious fact that it is a non-signatory to the agreement and not bound thereby. It is submitted that in any case even if such contention is not accepted by the Tribunal, which then proceeds to pass an award against the appellant, it would still be open to the appellant to challenge the award on the same ground under Section 34 of the Act or object to the enforcement of the award at the time of its execution. Therefore, the law gives primacy to the adjudication of this issue by the Civil Court and it would be just and convenient to consider it at the threshold rather than after running the entire gamut of arbitration. 9.4. It is submitted that on the other hand, defendant No. 1 is not prejudiced in any manner since the arbitration proceedings can continue against defendant No. 2 which is a party to the alumina contract containing the arbitration clause. It is submitted that as per defendant No. 1 it was defendant No. 2 which had to undertake and discharge the obligations under the said contract, which it purportedly failed to do. It is submitted that disputes raised by defendant No. 1 can be completely and fully adjudicated upon even in the absence of the appellant and it is not as if the defendant No. 1 would be left without any remedy. It is submitted that disputes raised by defendant No. 1 can be completely and fully adjudicated upon even in the absence of the appellant and it is not as if the defendant No. 1 would be left without any remedy. It is submitted that the contention that the defendant No. 2 does not have the financial capacity to satisfy the award that may be passed against it is incorrect to the knowledge of defendant No. 1 and in any case does not justify joining the appellant in the proceedings. 10. Mr. Joshi, learned Senior Advocate appearing on behalf of the appellant has submitted that even considering following facts defendant No. 1 and ICC and arbitral Tribunal is required to restrain from proceedings initiated by defendant No. 1 10.1 That defendant No. 1 has shown scant respect for the Indian Courts by referring to them in disparaging and derogatory terms and has willfully defied the orders of the High Court restraining it from proceeding further with the arbitration pending the appeal, in respect of which serious note was taken by this Court in its order dated 18.09.2007. 10.2. The ICC has also shown needless haste and an enthusiasm to accept its own jurisdiction in the matter by proceeding ahead with the arbitration and by the ICC Court prima facie determining that an arbitration agreement exists between the parties and directing that the arbitration should proceed even pending the suit. 10.3. That participation of the appellant in the arbitration proceedings is specifically without prejudice to its right to challenge the jurisdiction of the Tribunal and cannot be construed as participation in the proceedings so as to disentitle it from seeking reliefs in the Civil Court, which fact has been completely overlooked by the Civil Court and principles of acquiescence would not apply to such cases. 10.4. That appointment of an arbitrator by the appellant was under compulsion for obtaining extension of time to file a reply objecting to the reference made by defendant No. 1 as provided under Article 5(2) of ICC rules, and only with a view to avoid the matter going by default and therefore, cannot be construed as waiver of the objections at all. It is submitted that in any case appointment of an arbitrator does not preclude the appellant from challenging the jurisdiction of the Tribunal. 10.5. It is submitted that in any case appointment of an arbitrator does not preclude the appellant from challenging the jurisdiction of the Tribunal. 10.5. That defendant No. 1 had moved application under Order VII Rule 11 of CPC seeking dismissal of the suit on the ground of want of territorial jurisdiction, contending that the suit ought to have been filed in Mumbai where the registered office of the appellant was situated. However, said application was dismissed ofcourse without specifically dealing with the contention but it is well settled that in such it must be treated to have been rejected. Defendant No. 1 has not filed any application for review or any appeal/petition against the said order and therefore, the issue of territorial jurisdiction is concluded as between the parties and there are no new facts warranting a re-look of the issue at this stage. It is submitted that even otherwise suit has been filed where the property of the appellant is located and consequently any award which may be passed pursuant to the subject arbitration proceedings, would be enforced and the Civil Court before which the present suit is filed, is the Court which would have the jurisdiction to decide on the objection to the enforcement of such award at that stage. It is submitted that even the consequences of the apprehended action, being the continuation of the arbitration proceedings by defendant No. 1 and obtaining of the award thereon would fall on the appellant within the jurisdiction of the Court. Therefore, Civil Court at Khambhalia would have jurisdiction. 11. By making above submissions and relying upon aforesaid decisions, it is requested to allow present Appeal from Order and grant injunction restraining defendant No. 1 and arbitral Tribunal to proceed with arbitration proceedings till final disposal of the suit. 12. Appeal from Order is opposed by Mr. Hiroo Advani, learned Senior Advocate appearing on behalf of Respondent No. 1 herein - original defendant No. 1 - Ormet Primary Aluminum. It is submitted that as such Court at Jam Khambhalia has no territorial and/or geographical jurisdiction to entertain and try the suit. It is submitted that as such no cause of action has arisen within the territorial jurisdiction of Court at Jam Khambhalia. It is submitted by Mr. It is submitted that as such Court at Jam Khambhalia has no territorial and/or geographical jurisdiction to entertain and try the suit. It is submitted that as such no cause of action has arisen within the territorial jurisdiction of Court at Jam Khambhalia. It is submitted by Mr. Advani, learned Senior Advocate appearing on behalf of defendant No. 1 that learned Advocate appearing on behalf of AML has contended that as the factory premises of AML are situated at Khambalia; execution of an award will be carried out in Khambalia; although the notice of arbitration was served on AML at its registered office in Mumbai, same was transmitted to Khambalia; Court at Jam Khambalia has jurisdiction cannot be accepted. 12.1. It is submitted that none of the above factors can vest Court at Jam Khambalia with jurisdiction to try and entertain the suit filed before it by the AML. It is submitted that at the best it would be the High Court of Mumbai that has jurisdiction, as AML is having its registered office at Mumbai and admittedly all correspondence has taken place through the AML’s Mumbai office. It is submitted by Mr. Advani, learned Senior Advocate that objection as to jurisdiction when raised, same must be decided at the outset and at the earliest. In support of his above submission, he has relied upon decision of the Hon’ble Supreme Court in the case of Arun Kumar Tiwari vs. Smt. Deepa Sharma reported in 2006 (3) AWC 2142 . 12.2. Mr. Advani, learned Senior Advocate appearing on behalf of defendant No. 1 has requested to consider following chronology of ICC proceedings while considering whether Court at Jam Khambalia would have jurisdiction and/or whether such injunction could have been granted by the learned Trial Court and or not and whether provisions of Section 45 of the Arbitration Act would be applicable or not ? Date Particulars 14th September 2006 Notice of intention to arbitrate. 23rd February 2007 Letter from Baker Mckenzie, Counsels on behalf of the appellant and Respondent No. 2 nominating Shldon Elson as arbitrator. 16th January 2007 Request for arbitration 29th March 2007 Answer of the Ashapura Minechem Ltd. 29th March 2007 Answer of Ashapura UAEFZE. Date Particulars 14th September 2006 Notice of intention to arbitrate. 23rd February 2007 Letter from Baker Mckenzie, Counsels on behalf of the appellant and Respondent No. 2 nominating Shldon Elson as arbitrator. 16th January 2007 Request for arbitration 29th March 2007 Answer of the Ashapura Minechem Ltd. 29th March 2007 Answer of Ashapura UAEFZE. 27th April 2007 Baker & Mckenzie’s letter on behalf of the Ashapura Minechem Ltd. and Ashapura UAE FZE addressed to ICC asking it not to proceed with the arbitration in view of the pending proceeding in Khambalia. 4th May 2007 Ormat’s reply to Ashrapura FZE’s counter claim. 4th May 2007 Ormat’s jurisdictional statement. 07th May 2007 Duane Morris letter to the ICC requesting it to reject the request of Ashapura as contained in its Counsels, Baker Mckenzie’s letter of 27th April, 2007. 13th April 2007 Special Civil Suit No. 11 filed in the Court of Principal Civil Judge at Jam Khambalia. 16th May 2007 Application under Order VII Rule 11 filed by Ormat. 12.3. It is submitted by learned Senior Advocate appearing on behalf of defendant No. 1 that as arbitration proceedings were already initiated much prior to filing of the Suit before the Khambalia Court and even appellant - AML nominated its Arbitrator in the arbitration proceedings vide communication/letter dated 23.02.2007, therefore, provisions of Section 45 of the Arbitration Act would not be applicable as in that case there is no contemplation under Section 45 of the Arbitration Act as contended on behalf of the appellant - AML. It is submitted that arbitral Tribunal was seized of the matter and all pleadings had been completed prior to filing of the suit I.e. 30.04.2007. It is submitted that only thereafter, AML instituted present Suit before the Court at Khambalia praying to declare that appellant is not bound by the terms of alumina contract dated 12.12.2005 between defendant No. 1 and defendant No. 2 including but not limited to Clause 14 of the General terms and conditions of alumina contract and also for declaration that AML is not bound/liable/oblige to perform the alumina contract dated 12.12.2005 in any manner whatsoever and also praying for injunction restraining Ormat, its officers, owners, employees, representatives, agents etc. from continuing arbitration proceedings against the AML before the International Chamber of Commerce pursuant to the alumina contract or from initiating further proceedings before the ICC or against any others authority against the appellant in respect of any dispute arising out of or in connection with the alumina contract. It is submitted that all the aforesaid issues raised in the suit instituted by AML have already been referred to arbitral Tribunal and pending before the arbitral Tribunal for its decision. It is submitted that AML in its answer/reply dated 29.03.2007 before the arbitral Tribunal has already raised the identical issue before the Tribunal and its heading of such application is that ‘Ashapura Minechem Limited is not a Proper Party to this Arbitration and has no Obligation with respect to the Contractual Claims in Disputes’. Therefore, it is submitted that considering scheme of arbitration act all these issues which are raised by AML and/or respective parties are to be decided by arbitral Tribunal and therefore, learned trial Court has rightly not granted the injunction as prayed for. It is submitted that Section 45 of the Arbitration and Conciliation Act, 1996 gives the power to any judicial authority to refer the parties to arbitration unless the arbitration agreement is itself null and void, inoperative or incapable of being performed. It is submitted that aforesaid issue is already before the arbitral Tribunal and Section 45 does not contemplate referring the same issue to arbitration a second time. It is submitted that as both the parties have already raised this issue before the Tribunal, defendant No. 1 - Ormat cannot be called upon now to make an application to the Court at Jam Khambhalia to refer the identical issue to the arbitral Tribunal a second time. It is submitted that as such Section 45 of the arbitration act would be applicable only prior to commencement of the arbitration. It is submitted that as such Section 45 of the arbitration act would be applicable only prior to commencement of the arbitration. It is submitted that only in a case where suit is filed by one party and dispute is raised as contemplated under Section 45 of the Arbitration Act, 1996 and defendant submits application under Section 45 of the Act submitting that there is arbitration agreement and dispute is raised by the plaintiff to the effect that arbitration agreement is null and void, inoperative and incapable of being performed, in that case, the Court is required to prima facie give findings with respect to the same i.e. arbitration agreement and refer the parties to the arbitration. It is further submitted that even in application under Section 45 of the Arbitration Act, 1996, the Court is required to take prima facie view and is not required to have detailed inquiry and come to final findings. It is submitted that in the case of Shin-Etsu Chemical Company Ltd. (Supra), the Hon’ble Supreme Court has occasion to consider aforesaid issue and also issue at what stage application under Section 45 is required to be filed. It is submitted that in the aforesaid decision in Para 68, the Court in terms sets out the provisions of Section 45 of the Act which envisage pre-reference judicial interference with the arbitral process. It is submitted that therefore, only if a suit is filed challenging the validity of the agreement prior to the reference to arbitration then an application under Section 45 is contemplated. Otherwise, as the issue of validity of the agreement is already before the Tribunal, no application under Section 45 is contemplated to refer the issue to the arbitral Tribunal a second time. He has relied upon Para 106 of the decision of the Hon’ble Supreme Court in the case Shin-Etsu Chemical Company Ltd. (Supra). It is submitted that main idea is to see that arbitration proceeding should not be delayed. It is submitted that subsequent to the commencement of arbitration, the arbitrators are seized of the matter and undoubtedly under Section 16 of the Act and under Article 6 (2) of the ICC rules, the arbitral Tribunal has jurisdiction and will be required to consider all these issues. 12.4. Mr. It is submitted that subsequent to the commencement of arbitration, the arbitrators are seized of the matter and undoubtedly under Section 16 of the Act and under Article 6 (2) of the ICC rules, the arbitral Tribunal has jurisdiction and will be required to consider all these issues. 12.4. Mr. Advani, learned Senior Advocate appearing on behalf of defendant No. 1 - Ormat has submitted that decision relied upon by the learned Advocate appearing on behalf of AML in the case of Ranusagar Power Co. (Supra) would not be applicable to the facts of the present case. It is submitted that as such in Para 69 of the decision of the Hon’ble Supreme Court in the case of Shin-Etsu Chemical Company Ltd. (Supra), the Hon’ble Supreme Court has considered decision of Renusgar (Supra) and finally concluded that the issue in the Renusagar case did not arise as the issue of validity of the agreement did not arise in the Renusgar (Supra). It is submitted that observations of the Hon’ble Supreme Court in the case of Renusagar (Supra) regarding validity of the agreement are purely obiter dictum as it did not arise in that case. It is submitted that even otherwise observations in Renusgar (Supra) are clearly distinguishable. It is submitted that in Para 51 of the said judgments, the learned Judges set forth six propositions as the conditions required to be fulfilled for invoking Section 3 of the Foreign Awards Act, which incidentally has been repealed by the Act. It is submitted that even decision of the Bombay High Court in the case of Global Marketing Direct vs. GLT Limited and Ors. (Supra) is prior to the decision of Shin-Etsu Chemical Company Ltd. (Supra) and therefore, said decision is not required to be considered as final authority taking a view that application under Section 45 of the Arbitration Act would be applicable at any time. 12.5. With respect to contention on behalf of AML that as AML is not party to the alumina contract dated 12.12.2005 and therefore, AML is not bound by the said contract much less arbitration clause/agreement, Mr. Advani, learned Advocate for defendant No. 1 has pointed out correspondences between the parties on page No. 142 to 148 of the paper book. 12.5. With respect to contention on behalf of AML that as AML is not party to the alumina contract dated 12.12.2005 and therefore, AML is not bound by the said contract much less arbitration clause/agreement, Mr. Advani, learned Advocate for defendant No. 1 has pointed out correspondences between the parties on page No. 142 to 148 of the paper book. It is submitted that from aforesaid correspondences it can clearly be seen that the entire correspondence took place between the appellant - AML and defendant No. 1 - Ormat and defendant No. 2 - AMUAEFZE did not feature in the correspondence in any manner. It is submitted that AML and Ormat negotiated the entire contract including price, delivery schedule and all other details regarding contract. Mr. Advani, learned Senior Advocate for defendant No. 1 has relied and pointed out definition of an international arbitration under Section 2(f) of the Arbitration Act, 1996. It is submitted that in Section 2(f) of the Act, 1996 ‘International commercial arbitration’ means a arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the laws in force in India. It is submitted that aforesaid clearly indicates a very wide wording as to what constitutes an international arbitration and in particular words ‘whether contractual or not’. It is submitted that considering aforesaid facts and correspondences AML cannot be said to be outsider or stranger to the transaction and therefore, AML is rightly made party to the arbitration proceedings. 12.6. It is submitted that aforesaid issue has already been raised by AML first before ICC and thereafter before Tribunal. It is submitted that Article 6(2) of the ICC rules provide that if respondent does not file an answer as provided by Article 5, or if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, the Court may decide, without prejudice to the admissibility or merits of the plea or pleas that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the rules may exist. In such a case, any decision as to the jurisdiction of the arbitral Tribunal shall be taken by the arbitral Tribunal itself. In such a case, any decision as to the jurisdiction of the arbitral Tribunal shall be taken by the arbitral Tribunal itself. It is submitted that in the present case ICC Court has already taken a prima facie view regarding the existence of agreement and thereafter referred the matter to the Tribunal in accordance with Rule 6(2) and therefore, this issue is squarely before the Tribunal. 12.7. It is submitted that even lifting of corporate veil is permissible in India. Mr. Advani, learned Senior Advocate has relied upon decision of the Hon’ble Supreme Court in the case of State of Uttar Pradesh vs. Renusgar Power Co. reported in AIR 1988 SC 1737 , in support of his submission that Indian Courts also recognize the principle that lifting of corporate veil is an accepted doctrine in Indian law and that in appropriate circumstances would be done so. It is submitted that in the present case there is also issue of Emirate Law and under Emiri Decree No. 6 of 1995, Article 19 provides under what circumstances, the parent company will be liable for all of the liabilities of subsidiary. It is submitted that as such all the aforesaid issues are required to be considered by the Tribunal after taking of evidence and considering what is the appropriate applicable law. It is also submitted that learned trial Court has materially erred in not taking any decision with respect to jurisdiction of the Court at Jam Khambalia. 12.8. It is submitted that decision of the Hon’ble Supreme Court in the case of Suknaya Holdings Pvt. Ltd. (Supra) relied upon by the learned Counsel appearing on behalf of the appellant - AML in support of their submission that if there are parties that are not signatories to the arbitration agreement, same cannot be referred to the arbitration, it is submitted that on facts said decision would not be applicable to the facts of the present case. It is submitted that in the case before the Hon’ble Supreme Court there was partnership dispute and subsequently, the flats that had been constructed sold to a range of different purchasers and suit was filed which included 23 subsequent purchasers of the flats and one of the arguments that prevailed was that the 23 purchasers could not be joined in the arbitration proceedings. It is submitted that all the aforesaid 23 purchasers were even complete strangers to any dispute between the partners and therefore, decision of the Hon’ble Supreme Court in the case of Suknaya Holdings (Supra) could not be compared and/or applicable to the facts of the present case. It is further submitted that even otherwise in the plaint there are no averments and pleadings on behalf of the AML that arbitration agreement is null and void, inoperative and incapable of being performed. It is submitted that only contention on behalf of the AML is that as AML is not signatory to alumina contract dated 12.12.2005, AML is not bound by alumina contract and more particularly arbitration agreement/clause I.e. Clause 14 of the alumina contract. It is submitted that as stated above, as such all the aforesaid questions/issues are raised before the arbitral Tribunal and it is now the arbitral Tribunal who has to take decision on appreciation of evidence more particularly considering documentary evidence on record page - No. 140 to 148 of the paper book. It is further submitted that even otherwise learned trial Court has rightly passed an order refusing to granting an injunction restraining defendant - Ormat from proceeding with arbitration proceedings and staying further proceedings by arbitral Tribunal. Mr. Advani, learned Senior Advocate has heavily relied upon decision of the Hon’ble Supreme Court in the case of Bhatia International (Supra) and decision of the Bombay High Court in the case of GTC Limited vs. Royal Consulting RV and Global Marketing Direct Limited [Appeal From Order No. 799 of 2002 with Civil Application No. 1027 of 2002]. Relying upon aforesaid decisions, it is submitted that there cannot be any challenges to the existence or validity of the arbitration agreements once the arbitral Tribunal is seized of the matter and hearing the issue. It is submitted that once arbitration proceedings have already commenced there shall be no unnecessary interference by the Court in arbitration proceedings more particularly considering scheme of arbitration act. It is further submitted that even appellant - AML is being guilty of laches and learned trial Court ought not to have granted injunction staying further arbitration proceedings by the arbitral Tribunal. It is submitted that arbitration proceedings commenced on 14.09.2006 and AML went on to appoint its arbitrator on 23.02.2007. Therefore, formation of the Tribunal was concluded on 23.02.2007. It is further submitted that even appellant - AML is being guilty of laches and learned trial Court ought not to have granted injunction staying further arbitration proceedings by the arbitral Tribunal. It is submitted that arbitration proceedings commenced on 14.09.2006 and AML went on to appoint its arbitrator on 23.02.2007. Therefore, formation of the Tribunal was concluded on 23.02.2007. Answers and counter claims were filed on 29.03.2007 and the suit was filed on 13.04.2007. 13. By making above submissions and relying upon aforesaid decisions, it is requested to dismiss present Appeal from Order by confirming the order passed by the learned trial Court in refusing to grant injunction as prayed for which was to stay further proceedings by arbitral Tribunal. It is also requested ton consider the question with respect to jurisdiction by this Court while considering present Appeal from Order. 14. Heard the learned Advocates appearing on behalf of the respective parties at length. 15. Following question of law arise for consideration of this Court : (1) Whether the learned Trial Court was justified in refusing to grant injunction restraining defendant No. 1 - Ormat, its agent and servants from continuing arbitration proceedings before the ICC at New York, USA against the plaintiff in absence of application under Section 45 of the Arbitration Act, 1996? (2) Whether the learned Trial Court has committed any error in refusing to grant injunction as stated above when original plaintiff AML is not signatory to arbitration agreement? (3) Whether Civil Court at Jam Khambalia has territorial jurisdiction to entertain the suit and grant relief as prayed for in the said suit? (4) Whether application under Section 45 of the Arbitration Act would be maintainable after arbitration proceeding is commenced before the Arbitral Tribunal? (5) Jurisdiction of Civil Court under Section 45 of Arbitration Act, 1996 I.e. Civil Court is required to consider legality and validity of contract executed between parties or Civil Court is required to consider only legality and validity of arbitration agreement while considering question whether arbitration agreement is null and void, inoperative and incapable of being performed, prima facie decision is to be taken by the Civil Court or decision of Civil Court on the aforesaid aspect would be conclusive? 16. Before considering case on merits further, case pleaded on behalf of the respective parties is required to be considered. 16.1. 16. Before considering case on merits further, case pleaded on behalf of the respective parties is required to be considered. 16.1. That admittedly alumina contract dated 12.12.2005 was between original defendant No. 1 - Ormat and original defendant No. 2 AMUAEFZE by which defendant No. 2 agreed to purchase sandy calcined metallurgical grade alumina from defendant No. 1 - Ormat. It is not in dispute that earlier there were transaction between plaintiff and original defendant No. 1 - Ormat. It is not in dispute that alumina contract provides for arbitration agreement in case of any dispute which is provided under Clause 14. Clause 14 of the alumina contract is as under : 14. Arbitration. Any dispute arising out of relating to this Agreement, including its validity, interpretation, application, scope, enforceability, performance, breach and termination, shall be resolved exclusively and finally by arbitration, to the exclusion of the courts. If the parties fail to agree in writing on the place where the arbitration is to be conducted, such arbitration shall be held in New York, NY U.S.A. Arbitration shall be conducted in English, pursuant to International Chamber of Commerce (“ICC”) Arbitration Rules in force at the time of arbitration, by a panel of three arbitrators who are fluent in the English language and who are skilled in the legal and business aspects of the subject matter of this agreement. The arbitrators shall be appointed in accordance with ICC Rules. Any monetary award made pursuant to such arbitration shall be calculated and paid exclusively in U.S. Dollars. Judgment upon the award rendered may be entered in any Court having jurisdiction or any application may be made to any Court for a judicial acceptance of the award and an order of enforcement, as the case may be. As dispute arose with respect to alumina contract defendant No. 1 invoked arbitration clause i.e. Clause 14 of alumina contract by approaching ICC joining defendant No. 2 as well as plaintiff as party to the said arbitration proceedings. Defendant No. 1 - Ormat send notice of intention to arbitrate as far as back on 14.09.2006. That plaintiff submitted application before ICC on 23.02.2007 pursuant to Article 5(2) of the rules of Arbitration of ICC requesting for extension of time to file their answer. Not only that but original plaintiff as well as defendant No. 2 nominated their arbitrator to be member of arbitral Tribunal. That plaintiff submitted application before ICC on 23.02.2007 pursuant to Article 5(2) of the rules of Arbitration of ICC requesting for extension of time to file their answer. Not only that but original plaintiff as well as defendant No. 2 nominated their arbitrator to be member of arbitral Tribunal. Aforesaid communication dated 23.02.2007 shall be dealt with hereinafter. That thereafter, original defendant No. 1 - AMUAEFZE submitted counter claim before ICC on 29.03.2007. Simultaneously, on the very day plaintiff also filed its answer before the ICC. It appears that thereafter plaintiff has raised number of objections before the ICC contenting inter-alia that AML is not signatory to the alumina contract and therefore, not bound by arbitration agreement. That thereafter, plaintiff had instituted Special Civil Suit No. 11 of 2007 for following reliefs : “23. In the facts and circumstances set out above, the Plaintiffs, therefore, prays: a. that this Hon’ble Court be pleased to declare that the plaintiff is not bound by the terms of the Alumina Contract dated December 12, 2005 between Defendant No. 1 and Defendant No. 2 including but not limited to Clause 14 of the General Terms and Conditions of the Alumina Contract; b. that this Hon’ble Court be pleased to declare that the Plaintiff is not bound/ liable/obliged to perform the Alumina Contract dated December 12, 2005 in any manner whatsoever; c. that Defendant No. 1 its officers, owners, employees, representatives, agents and any person claiming through Defendant No. 1 be restrained by a perpetual order and injunction of this Hon’ble Court from continuing arbitration proceedings against the Plaintiff before the International Chamber of Commerce pursuant to the Alumina Contract or from initiating further proceedings before the International Chamber of Commerce or against any other authority against the Plaintiff in respect of any dispute arising out of or in connection with the Alumina Contract. d. that this Hon’ble Court be pleased to order and direct Defendant No. 1 to pay to the Plaintiff an amount of Rs. d. that this Hon’ble Court be pleased to order and direct Defendant No. 1 to pay to the Plaintiff an amount of Rs. 5 lacs (as damages) or such other amount as this Hon’ble Court may deem fit and proper; e. that pending the hearing and final disposal of the suit, Defendant No. 1 its officers, owners, employees, representatives, agents, and any person claiming through Defendant No. 1 be restrained by an order and injunction of this Hon’ble Court from continuing the arbitration proceedings before the International Chamber of Commerce against the Plaintiff or from initiating further proceedings before the International Chamber of Commerce or against any other authority against the Plaintiff in respect of any dispute arising out of or in connection with the Alumina Contract; f. For ad-interim orders in terms of prayer Clause (e) above; g. For costs; h. For such further and other reliefs as the Hon’ble Court may deem fit and nature and circumstances of the case.” 16.2. It appears from pleadings and necessary averments in the plaintiff that only contention on behalf of the plaintiff AML is that as AML is not signatory to alumina contract and therefore, plaintiff is not bound by Clause 14 of alumina contract and that plaintiff is not liable to perform alumina contract. On the other hand it is the case on behalf of the defendant No. 1 that as such all the correspondence with respect to alumina contract was by plaintiff Indian Company and defendant No. 1 New York company and that there was not a single correspondence with/by defendant No. 2 UAE company. That defendant No. 2 UAE company is controlled by Indian company. That there were correspondence between defendant No. 1 and plaintiff with respect to alumina contract therefore, plaintiff is proper party to the arbitration proceedings. In back drop of the above, factual aspects, controversy raised in the present proceedings is required to be considered. 16.3. Whether the Court at Jam Khambalia would have jurisdiction to entertain suit in question and grant relief as prayed for in the present suit? In back drop of the above, factual aspects, controversy raised in the present proceedings is required to be considered. 16.3. Whether the Court at Jam Khambalia would have jurisdiction to entertain suit in question and grant relief as prayed for in the present suit? At the outset it is required to be noted that initially plaintiff had not averred in the plaint as to how Court at Jam Khambalia would have jurisdiction to try and entertain suit, however, subsequently plaint came to be amended by adding Paras 15(A) and 16(A) which reads as under: “15(A) The factory premises of this plaintiff is situated at Khambalia & the handling of the company affairs of the company is also being done through Khambalia office. If the award is passed the recovery can only be done by execution proceedings at Khambhalia as plaintiff has no substantial property at its Mumbai office. Hence, this Hon’ble has jurisdiction to try this suit. 16(A) The cause of action has accrued to the plaintiff when plaintiff was served with the notice of arbitration etc. on 17.09.2006 and it was ultimately transmitted at Khambalia and Khambalia office as well as Khambalia factory is directly affected and likely to be effected and hence cause of action has also arisen within the jurisdiction of Khambhalia Court.” Thus, it is the case on behalf of the plaintiff that as factory premises of the plaintiff is situated at Khambalia and handling of the affairs of the company is also being done through Khambalia office and therefore, if award is passed recovery can be only done by execution proceedings at Khambalia as plaintiff has no substantial property at its Mumbai office therefore, Court at Jam Khambalia has jurisdiction to try the suit. With respect to cause of action it is averred and pleaded by the plaintiff that cause of action has accrued to the plaintiff when plaintiff was served with notice of arbitration etc. on 17.09.2006 and it was ultimately transmitted at Khambaila & Khambalia office as well as Khambalia factory is directly affected and likely to be affected and hence cause of action has also arisen within the jurisdiction of Khambhalia Court. on 17.09.2006 and it was ultimately transmitted at Khambaila & Khambalia office as well as Khambalia factory is directly affected and likely to be affected and hence cause of action has also arisen within the jurisdiction of Khambhalia Court. Therefore, sum and substance on behalf of the plaintiff is that if award is passed recovery can be only done by execution proceedings at Khambalia as plaintiff has no substantial property at its Mumbai office, therefore, Court at Jam Khambalia would have jurisdiction. On the other hand, it is specific case on behalf of defendant No. 1 that as such no cause of action has arisen within the geographical and territorial jurisdiction of Court at Jam Khambalia. It is the case on behalf of the defendant No. 1 Ormat that plaintiff was served with notice of intention of arbitration in Mumbai and plaintiff AML has its registered office at Mumbai, therefore, at the most Court at Mumbai would have jurisdiction. It appears that learned trial Court has taken view that as question with respect to jurisdiction is mixed question of la and facts, same can be decided at the time of trial. Ofcourse aforesaid view is taken by the learned trial Court while considering application under Order 7 Rule 11 of CPC. It is true that defendant No. 1 has not challenged order passed by the learned trial Corut while deciding application under Order 7 Rule 11 of CPC. However, aforesaid aspect with respect to jurisdiction is required to be considered by this Court even prima facie while deciding interim injunction application submitted under Order 39 Rule 1 of the CPC. In the facts and circumstances narrated herein above, when plaintiff is being served with notice of intention of arbitration at Mumbai and has its registered office at Mumbai and when alumina contract is not executed at Jam Khambalia, this Court is of the prima facie opinion that Court at Khambalia has no jurisdiction to try the suit in question. No casue of action much less part cause of action has arisen in the territorial jurisdiction of Court at Jam Khambalia. It is the case on behalf of the plaintiff that as plaintiff’s assets are situated at Khambalia, therefore, if award is passed and it is to be executed, in that case, same can be done by execution proceedings at Jam Khambalia and therefore, Court at Khambalia would have jurisdiction. It is the case on behalf of the plaintiff that as plaintiff’s assets are situated at Khambalia, therefore, if award is passed and it is to be executed, in that case, same can be done by execution proceedings at Jam Khambalia and therefore, Court at Khambalia would have jurisdiction. Aforesaid has no substance and cannot be accepted. Jurisdiction of Court to entertain the suit does not dependent upon where the property of the defendant is situated and where for enforcement of decree/award execution proceedings are filed. For the purpose of jurisdiction relevant provisions under CPC are Section 16 to Section 20 and nowhere in the aforesaid provisions there is reference to execution proceedings. Under the circumstances, it prima facie appears to the Court that as such Court at Khambalia has no geographical and territorial jurisdiction to entertain the suit in question. However, it is observed that aforesaid finding is given by the Court prima facie only and tentative while deciding interim application under Order 39 Rule 1 and 2 of CPC and shall not be construed as conclusive finding of the Court on jurisdiction. 16.4. For the aforesaid other questions, as such scheme of arbitration act, 1996 and relevant provisions of arbitration act are required to be referred to and considered. Section 2(f) of the Act defines International commercial Agreement. Section 5 of the Act provides that no judicial authority shall intervene in matters governed by Part I of the arbitration Act except where so provided. Section 7 provides for arbitration agreement. Section 16 of the Act is with respect to competence of arbitral Tribunal to rule on its jurisdiction. Section 44 which is in Part II defines ‘foreign award’. Section 45 which is most important so far as controversy raised in the present proceeding with respect to power of judicial authority to refer parties to arbitration with respect to award/arbitration. Section 48 of the Act is with respect to conditions for enforcement of foreign awards. Section 49 provides for enforcement of foreign award. Section 45 which is most important so far as controversy raised in the present proceeding with respect to power of judicial authority to refer parties to arbitration with respect to award/arbitration. Section 48 of the Act is with respect to conditions for enforcement of foreign awards. Section 49 provides for enforcement of foreign award. Section 2(f), Section 45, Section 48 and Section 49 of the Arbitration Act reads as under: Section 2(f) ‘international commercial arbitration’ means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is : I. an individual who is a national of, or habitually resident in, any country other than India; or II. a body corporate which is incorporated in any Country other than India; or III. a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or IV. the Government of a foreign country; Section 45 : Power of judicial authority to refer parties to arbitration.—Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Section 48 - Conditions for enforcement of foreign awards:— (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the Court proof that— (a) the parties to the agreement referred to in Section 44 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 (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral provisions or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration Provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or (d) 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 (e) 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. (2) Enforcement of an arbitral award may also be refused if the Court finds that — (a) the subject matter of the difference is not capable of settlement by arbitration under the law of India (b) the enforcement of the award would be contrary to the public policy of India (3) If any application for setting aside or suspension of the award has been made to a competent authority referred to in Clause (3) of sub-section (1) the Court may if it considers it 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 give suitable security. Section 49 - Enforcement of foreign awards.—Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court. 16.5. Section 45 of the Act confers power upon judicial authority to refer the parties to arbitration. As per Section 45 of the Act, Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. It is to be noted that Section 44, Section 45 and Section 48 are in Part II of the Arbitration Act, 1996. As held in catena of decisions there is distinction and difference between Part I and Part II to some extent. While considering application under Section 8 of the Arbitration Act which is part I, Court at that stage is not required to consider whether agreement is null and void, inoperative and incapable of being performed which is provided under Section 45 of the Act. Therefore, any proceeding before the judicial authority with respect to action in a matter in respect of which parties have made an agreement referred to in Section 44, application is submitted by other party to the agreement pointing out that there is arbitration agreement, unless it is found by the judicial authority that said agreement is null and void, inoperative and incapable of being performed, parties are required to refer to arbitration. As per Section 48 of the Arbitration Act, even enforcement of foreign award may be refused, at the request of the party against whom it is invoked, if that party furnishes to the Court proof and Court finds that subject matter of the difference is not capable of settlement by arbitration under the law of India and enforcement of the award would be contrary to the public policy of India and all other grounds set out in Section 48. 17. 17. Even learned Advocate appearing on behalf of the plaintiff AML has submitted that party who seek to challenge jurisdiction of arbitral Tribunal has four options to it which according to the learned Advocate is also provided and contemplated under Arbitration Act, 1996— (i) Boycott the arbitration, permit it to proceed ex-parte and seek setting aside of the award or resist enforcement thereof on grounds of lack of jurisdiction after the final award has been passed (Sections 34 and 48) (ii) Raise the objection of jurisdiction with the arbitral Tribunal itself as a preliminary issue. (iii) Apply to the national Court for resolution of the issue of jurisdiction seeking an injunction restraining the arbitral Tribunal from proceedings along with a declaration that it has no jurisdiction for example on the basis that there was no valid arbitration agreement. The other alternative is that a party may seek adjudication of the disputes on merits before the national Court. (iv) Participate in the arbitration and then challenge the award in the Courts of the country in which the arbitration took place and/or refuse to implement the award and wait for the successful party to enforce the same. (Sections 34, 48). Therefore, the question which is posed for consideration of this Court is that in a case where arbitration proceeding have already commenced and all the parties have appeared before the arbitral Tribunal and one of the party has already raised objection of jurisdiction before the arbitral Tribunal as preliminary objection and whether in subsequent suit challenging the agreement, injunction can be granted staying further proceedings of arbitral Tribunal and whether at that stage Section 45 of the Act is required to be entertained and whether application under Section 45 is maintainable at any stage ? 17.1. Mr. Joshi, learned Senior Advocate appearing on behalf of the plaintiff AML has heavily relied upon decision of the Bombay high Court in the case of Global Marketing Direct Limited vs. GLT (Supra) in support of his submission that as held by Bombay High Court application under Section 45 of the Arbitration Act would be maintainable at any stage and there is no time limit prescribed. However, it is to be noted that in the very case earlier the learned trial Court refused to grant injunction staying further proceeding of arbitration proceeding and Appeal from Order was preferred and Bombay High Court held that as arbitration proceeding has commended, it will not be proper to stay arbitration proceedings but allow the parties to agitate their disputes before the forum chosen. It is to be noted that order in appeal of Bombay High Court was challenged by way of Special Leave Petition in Apex Court where a statement was recorded before the Apex Court that arbitrator had passed an award and that Respondent No. 1 would be advised to raise all such objections as may be available to it be raised under Section 48 of the Arbitration Act and consequently said Special Leave Petition was dismissed as withdrawn. However, subsequently in the pending suit, defendant submitted application submitting that dispute between the parties have been referred to arbitration, the Court has no jurisdiction to proceed with the suit and entertain any application for interim relief as arbitration between plaintiff and defendant No. 2 has culminated in an award and remedy of the plaintiff is to oppose enforcement of the award as and when it is sought to be enforced under Section 48 of the Act. Therefore, it was requested to hear preliminary objection of the defendants regarding the jurisdiction of the Court to proceed with the suit or hear any interim application for injunction, restraining enforcement of the arbitration award or attachment before judgment. That said application was opposed by submitting that defendants had not moved application under Section 45 for referring the dispute to arbitration and unless request is made by either of the parties, the parties could not be referred to arbitration and as such it would be difficult to hold that jurisdiction of the Civil Court is ousted and accepting the same the learned trial Court dismissed aforesaid application while clarifying that defendants are at liberty to invoke the provisions of Section 45 of the Act. Aforesaid was the subject matter before the Bombay High Court. In the said decision Bombay High Court has specifically observed that in a proceeding pending before a judicial authority Section 45 can be resorted to any time and there is no such limitation. Aforesaid was the subject matter before the Bombay High Court. In the said decision Bombay High Court has specifically observed that in a proceeding pending before a judicial authority Section 45 can be resorted to any time and there is no such limitation. However, it is to be noted that said observation of the Bombay High Court is vis-a-vis Section 8 of the arbitration act which provides that the application shall be moved not later than when submitting the first statement of the substance of the dispute and to that Bombay High Court observed that under Section 45 there is no such limitation. It is sought to be contended on behalf of the plaintiff that even application under Section 45 of the Act can be made even after award is declared by the arbitral Tribunal, which cannot be accepted. 17.2. Looking to the scheme of arbitration act, once award is declared by arbitral Tribunal the aggrieved party either can challenge arbitral award as provided under Section 34 of the Act and/or can resist the same at the time when foreign award is declared by arbitral Tribunal and is tried to be enforced as provided under Section 48 of the Act. Therefore, this Court is of the opinion that once arbitral award is declared and even if suit is pending in that case also parties are to be left to initiate proceeding under arbitration act and all the aspects are required to be considered either in application under Section 34 and/or Section 48 of the arbitration act and that is the scheme under arbitration act. If at that stage i.e. after arbitral award is declared and application under Section 45 of the Act is submitted and that Civil Court is to decide question with respect to whether agreement is null and void, inoperative and incapable of being performed, in that case there will be further delay in proceedings and that would be contrary to public policy and therefore, all questions are required to be considered and decided either under Section 34 or Section 48 of the arbitration act. Bombay High Court in the aforesaid decision has never stated that Section 45 application can be made even after award is declared by the arbitral Tribunal. Bombay High Court in the aforesaid decision has never stated that Section 45 application can be made even after award is declared by the arbitral Tribunal. As such there was no such controversy before the Bombay High Court and assuming that some observations are made by the Bombay High Court, this Court is not in agreement with the same. 17.3. In the present case before suit in question came to be filed arbitral proceeding had already begin as far as back on 14.09.2006 when defendant No. 1 - Ormat approached ICC with notice of intention to arbitrate. It is not in dispute that in the present case with respect to alumina contract rules of ICC will be applicable. As per Article 4 a party wishing to have recourse to arbitration under said rules is required to submit its request to the Secretariat which shall notify the claimant and respondent of the receipt of the request and the date of such receipt. As per Clause (2) of Article 4 the date on which the request is received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of the arbitral proceeding. Therefore, it can be said that on 14.09.2006 arbitration proceedings have commenced. As per Article 5 of the ICC rules within 30 days from the receipt of the request from the secretariat, the respondent shall file an answer. As per Clause (2) of Article 5, the Secretariat may grant the respondent an extension of the time for filing the answer, provided the application for such an extension contains the respondent’s comments concerning the number of arbitrators and their choice and where required by Articles 8, 9 and 10, the nomination of an arbitrator. In the present case plaintiff AML by communication dated 23.02.2007 requested Secretariat for extension of time to file their reply till 31.03.2007 and it appears that same was pursuant to Article 5 (2) of ICC rules. Not only that plaintiff and defendant No. 2 also nominated their arbitrators to be member of arbitral Tribunal and it was specifically mentioned in the said letter having agreed that parties will in the first instance, attempt jointly to appoint the Chairman of the Tribunal. Letter/communication dated 23.02.2007 is produced as under : “February 23, 2007 Ms. Not only that plaintiff and defendant No. 2 also nominated their arbitrators to be member of arbitral Tribunal and it was specifically mentioned in the said letter having agreed that parties will in the first instance, attempt jointly to appoint the Chairman of the Tribunal. Letter/communication dated 23.02.2007 is produced as under : “February 23, 2007 Ms. Erics Stein Council Secretariat ICC International Court of Arbitration 38, Cours Albert 1 75008 Paris France Re: Ormet Primary Aluminum Corporation (U.S.A) vs. 1, Ashapura Minechem (UAE) FZE (United Arab Emirates) 2, Ashapura Minechem Limited (India) Ref: 14 795/EBS Dear Ms. Stein; This Firm represents the Respondents named in this proceeding, Ashapura Minechem (UAE) FZE and Ashapura Minechem Limited. I am writing pursuant to Article 5(2) to request an extension of the Respondents’ time to file their answer until March 31, 2007. The respondents are located at remote distances from our offices in New York. Ashapura Minechem (UAE) FZE is located in Sharjah, United Arab Emirates; Ashapura Minechem Limited is located in Mumbai, India. The additional time is necessary for the Respondents to communicate with us and to gather the information needed to prepare and present their defenses. The Respondents agree that the relevant arbitration agreement provides for a panel of three arbitrators to be appointed in accordance with the ICC Rules. The Respondents nominate Sheldon Elsen of Orans, Elsen & Lupart LLP, 875 Third Avenue, New York, NY 10022 to be a member of the arbitral Tribunal. We have agreed with counsel for the Claimant that the parties will, in the first instance, attempt jointly to appoint the chairman of the Tribunal. Sincerely, Sd/- Charlos Cummings cc: Albert Bates, Jt”. 17.4. It appears that aforesaid communication and appointment of arbitrator etc., was not under protest and/or with objection. Thus it can be said that plaintiff participated in the arbitration proceedings before the ICC without any protest and/or raising any objection at the relevant time. However, subsequently, vide communication dated 29.03.2007 plaintiff raised objection by submitting that AML is not signatory to the alumina contract and therefore, not bound by Clause 14 with respect to agreement by further making grievance that they are wrongly jointed before arbitration Tribunal and it was requested to delete them. However, subsequently, vide communication dated 29.03.2007 plaintiff raised objection by submitting that AML is not signatory to the alumina contract and therefore, not bound by Clause 14 with respect to agreement by further making grievance that they are wrongly jointed before arbitration Tribunal and it was requested to delete them. At the outset it is required to be noted that Article 6 of the ICC rules provide that if the respondent does not file an answer as provided by Article 5, or if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, the Court may decide, without prejudice to the admissibility or merits of the plea or pleas that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the rules may exist. It also provides that in such case any decision as to the jurisdiction of the arbitral Tribunal shall be taken by the arbitral Tribunal itself. If the Court is not so satisfied the parties shall be notified that the arbitration cannot proceed. In such a case, any party retains the right to ask any Court having jurisdiction whether or not there is a binding arbitration agreement. Thus, when plaintiff raised objections before the ICC with respect to existence, validity or scope of the arbitration agreement, same was required to be decided by ICC as provided under Article 6(2). It is to be noted that in the present case ICC has already taken decision of having prima facie satisfied with respect to existence, validity and scope of arbitration agreement and therefore, all other things are required to be considered and decided by arbitral Tribunal. Therefore, to grant any injunction restraining defendant No. 1 from further proceeding would be restraining arbitral Tribunal to proceed as provided under Article 6 of the ICC Rules, which is not permissible more particularly when suit has been instituted after arbitration proceeding have commenced. It is different thing when suit is filed prior in time challenging in a matter where there is agreement under Section 44 of the Act and either party submits application under Section 45, in that case, judicial authority is required to prima facie consider whether agreement is null and void, inoperative and incapable of being performed. It is different thing when suit is filed prior in time challenging in a matter where there is agreement under Section 44 of the Act and either party submits application under Section 45, in that case, judicial authority is required to prima facie consider whether agreement is null and void, inoperative and incapable of being performed. If the Court is prima facie satisfied that agreement is not null and void, inoperative and incapable of being performed, in that case, judicial authority has no other alternative but to refer the parties to arbitration and technically speaking suit is not required to proceed further and parties are required to prefer arbitration proceeding as provided under the Arbitration Act. 17.5. In the present case as stated above, objections which are raised on behalf of the rival parties i.e. whether plaintiff being non signatory to the alumina contract, still plaintiff can be party to the arbitration proceeding or whether as all the correspondence with respect to alumina contract was between defendant No. 1 and plaintiff and that defendant No. 2 is subsidiary of plaintiff and that entire control over defendant No. 2 is by/ of plaintiff, question with respect to lifting the corporate veil, applicability of Indian laws with respect to contract liability of the plaintiff’ etc. are all questions which are required to be now decided by the arbitral Tribunal. 17.6. At this stage there cannot be any injunction restraining arbitral Tribunal from proceeding further with arbitral proceeding and to pronounce decision on the aforesaid facts. To interfere with the arbitration proceeding would be to act contrary to the object and purpose of arbitration act I.e. minimum interference by the judicial authority and to resolve dispute between the parties at the earliest. Therefore, contention on behalf of the plaintiff that plaintiff has four options available referred to herein abvoe and plaintiff can avail any option cannot be accepted. 17.7. Now next question which is required to be considered is whether when submitting application under Section 45 of the Act whether defendant No. 1 shall be permitted to raise all these questions compelling plaintiff to participate in the arbitration proceeding? As stated above and observed herein above, in the present case arbitration proceeding have commenced much earlier and plaintiff has instituted suit subsequently. Before that plaintiff has already raised objection before ICC as well as Tribunal. As stated above and observed herein above, in the present case arbitration proceeding have commenced much earlier and plaintiff has instituted suit subsequently. Before that plaintiff has already raised objection before ICC as well as Tribunal. As per scheme of arbitration act as well as ICC rules of arbitration, all the objections are required to be considered by arbitral Tribunal. Therefore, assuming that any application under Section 45 of the Act is required, in that case also, aforesaid aspects are required to be decided while deciding interim application under Order 39 Rule 1 and 2 whether by way of injunction arbitral Tribunal is restrained from proceeding further. Therefore, in the facts and circumstances of the case, this Court is not further entering into larger question whether any application under Section 45 of the arbitration act is must or not. In a given case, it might be that reply to the application for interim injunction below Exh. 5 opposing injunction staying further proceeding of arbitral proceeding can itself be treated as application under Section 45 of the arbitration act. As stated above, this Court is not further entering into aforesaid larger question. 17.8. Now so far as decision of the Hon’ble Supreme Court in the case of Suknaya Holdings Pvt. Ltd. (Supra) relied upon by the learned Advocate appearing on behalf of the appellant in support of his submission that if there are parties that are not signatory to the arbitration agreement, same cannot be referred to arbitration is concerned, on facts said decision would not be applicable to the facts of the present case. In the case before the Hon’ble Supreme Court there was a partnership dispute and subsequently the flats that had been constructed had been sold to different purchasers. A suit was filed which included 23 subsequent purchasers of the flats and one of the arguments that prevailed was that 23 purchasers could not be joined in the arbitration proceedings and it was found that aforesaid 23 purchasers were complete strangers to any dispute between the partners and it was held that same cannot be referred to arbitration. Considering the facts of the case on hand and as observed herein above, appellant cannot be said to be absolute stranger to the agreement/contract between the parties. Aforesaid aspect has been elaborately dealt with herein above. Therefore, on facts said decision would not be of any assistance to the appellant. Considering the facts of the case on hand and as observed herein above, appellant cannot be said to be absolute stranger to the agreement/contract between the parties. Aforesaid aspect has been elaborately dealt with herein above. Therefore, on facts said decision would not be of any assistance to the appellant. 17.9. Now so far as reliance placed upon the decision of the Hon’ble Supreme Court in the case of Shin Etsu Chemical Company Ltd. (Supra) is concerned, dispute before the Hon’ble Supreme Court was with respect to scope and ambit of Section 45 of the Arbitration Act and whether decision taken under Section 45 of the Arbitration Act is conclusive and/or whether Court while exercising jurisdiction under Section 45 of the Arbitration Act is required to give prima facie findings and whether detail evidence is required to be led and whether findings given by the Court while exercising under Section 45 of the Arbitration Act is open to re-agitate while challenging award under Section 45 of the Arbitration Act or not. 17.10. As such view which is being taken by this Court as observed herein above, is as such supported by the decision of the Hon’ble Supreme Court in the case of Bhatia International (Supra). Considering observations made by the Hon’ble Supreme Court in the aforesaid decision, this Court is of the opinion that looking to the scheme, object and purpose of the arbitration Act, which is to minimum exercising jurisdiction of the Court and/or intervention of the Court, there shall be least interference in the arbitration proceedings and there cannot be stay of arbitral proceedings and all the questions as stated above are required to be raised and considered by the arbitral Tribunal which in the present case are already raised by the appellant before the arbitral Tribunal of ICC. 18. In view of above and for the reasons stated above, more particularly when it is held that Court at Jam Khambalia has no jurisdiction to entertain the suit and that arbitration proceedings have commenced much before filing of the suit and all the objections are raised by plaintiff before the ICC and arbitral Tribunal, in the facts and circumstances of the case, it cannot be said that learned trial Court has committed any error in refusing to grant any injunction as prayed for. In case any award is declared against plaintiff in that case it will be open for plaintiff to resist award at the time when it is sought to be executed and enforced and same can be considered in accordance with law and on merits as contemplated under Section 34 and 48 of the Arbitration Act, 1996. however, there is no question of granting injunction restraining defendant No. 1 and its servants from continuing with arbitration proceeding before ICC against the plaintiff. Under the circumstances, present Appeal from Order fails and deserve to be dismissed and accordingly it is dismissed. 19. In view of dismissal of Appeal from Order, no order in Civil Application. Ad interim relief granted earlier deserves to be vacated and accordingly it is vacated. No costs. Further order At this stage, Mr. S.N. Thakkar, learned Advocate appearing on behalf of the appellant has prayed to continue ad-interim relief granted so as to enable the appellant to challenge the present order before the Apex Court. In the facts and circumstances of the case, ad-interim relief granted earlier is directed to continue till 09th November, 2009.