Judgment : The plaintiff-petitioner carries on business inter alia as dealer in peas and pulses. The defendant-respondent, hereinafter referred to as Glencore, is exporter of french yellow peas. The plaintiff-petitioner entered into an agreement dated 19th May, 2008 with the State Trading Corporation of India Ltd., hereinafter referred to as STC, for purchase of 21,500 metric tonnes of french yellow peas. The aforesaid contract was preceded by a contract between STC and the Glencore executed on 17th April, 2008, whereby the Glencore agreed to sell to STC and STC agreed to purchase from the Glencore 21,500 metric tonnes of french yellow peas. Under the contract between the plaintiff-petitioner and STC, dated 19th May, 2008, the french yellow peas were to be sold on high sea sale basis and any quantity or quality claim was to be lodged and pursued by STC at the cost of the plaintiff-petitioner. According to the plaintiff-petitioner, in terms of the contract dated 17th April, 2008 between STC and Glencore, STC opened a letter of credit on 22nd May, 2008. Under the contract dated 17th April, 2008, Glencore shipped several quantities of french yellow peas in bulk containers on diverse dates. 18,106.698 metric tonnes of goods were shipped in seven consignments from the port of Rouin in France for carriage to Navaseva and the goods were discharged at the port of Navaseva. Glencore obtained payment for the entire quantity of 18,106.698 metric tonnes of french yellow peas by invoking the letters of credit upon presentation of documents as required. The plaintiff-petitioner alleges that the quality of the first consignment was not as per specification. A surveyor was thus appointed. According to the plaintiff-petitioner, of all the seven consignments shipped by Glencore only one consignment covered by Bill of Lading No. MSCUFU 510761 was as per contractual specifications. According to the plaintiff-petitioner, the quantity being substandard, the plaintiff-petitioner could only sell 19.920 metric tonnes and that too at a lower price of Rs.18,410/- per metric tonne. The plaintiff-petitioner appears to have filed a suit being C.S. 151 of 2009 in this Court praying inter alia for a decree for a sum of Rs.47,51,07,846.80 and other consequential reliefs. In the said suit, the plaintiff-petitioner filed an interlocutory application being G.A. No.1388 of 2009 praying for relief of security for the claim of the plaintiff-petitioner. The plaintiff-petitioner appears to have filed a suit being C.S. 151 of 2009 in this Court praying inter alia for a decree for a sum of Rs.47,51,07,846.80 and other consequential reliefs. In the said suit, the plaintiff-petitioner filed an interlocutory application being G.A. No.1388 of 2009 praying for relief of security for the claim of the plaintiff-petitioner. On 16th June, 2008, the plaintiff-petitioner received at its office at 12 Government Place (East) Kolkata – 700069, within the jurisdiction of this Court, a notice of claim for arbitration from Glencore upon reference to a contract alleged to have been executed on 10th June, 2008, which replaced the alleged contract dated 17th April, 2008. Glencore claimed arbitration in accordance with the rules of Grain and Feed Trade Association, hereinafter referred to as GAFTA as per the alleged contract dated 10th June, 2008 for sale of 21,000 metric tonnes of french yellow peas. One Mr. Libre had been appointed arbitrator by Glencore. The plaintiff-petitioner filed the instant suit being C.S. No.173 of 2009 in this Court inter alia praying for a decree of declaration that there was no contract dated 10th June, 2008 or on 17th June, 2008 between the plaintiff petitioner and Glencore, delivery up and cancellation of the alleged contracts and other consequential and/or related reliefs. In the said suit, the plaintiff-petitioner has claimed a decree for perpetual injunction restraining Glencore from proceeding any further with arbitration or from taking further steps on the basis of the notice dated 16th June, 2009. The plaintiff-petitioner contends that there was no contract dated 10th June, 2008 between the plaintiff-petitioner and Glencore. There was a contract dated 17th April, 2008 between STC and Glencore and a subsequent contract between the plaintiff-petitioner and STC. It further appears that Glencore filed an application in Britain in the High Court of Justice, Queen’s Bench Division, Commercial Court and obtained an order restraining the plaintiff-petitioner and STC from proceeding with the suit being C.S.151 of 2009. This interlocutory application has been taken out seeking orders restraining Glencore from proceeding with the notice dated 16th June, 2009 and/or from proceeding with arbitration before the GAFTA. On the application being moved this Court passed an order dated 7th July, 2009 in terms of prayer (d) of the petition for a period of six weeks from date. The interim order was from time to time extended. On the application being moved this Court passed an order dated 7th July, 2009 in terms of prayer (d) of the petition for a period of six weeks from date. The interim order was from time to time extended. The interim order was passed having regard to the categorical assertion of the plaintiff petitioner that there is no contract executed between the plaintiff-petitioner and Glencore on 10th July, 2008 or on any other date. Mr. Anindya Mitra, appearing on behalf of the plaintiff-petitioner submitted that there was no arbitration agreement. Furthermore, the plaintiff-petitioner had, in the suits referred to above, made allegations of fraud. Allegations of fraud could not be adjudicated in arbitration proceedings. In support of his submissions, Mr. Mitra cited the following judgments: 1. S.B.P. and Co. vs. Patel Engineering Ltd. & Anr. reported in (2005) 128 Company Cases 465 (SC) = (2005) 8 SCC 618 . 2. Nanalal M. Verma & Co. Ltd. vs. Alexandra Jute Mills Ltd. Reported in AIR 1989 Cal. 6 . 3. Union of India vs. Birla Cotton Spinning and Weaving Mills Ltd. reported in AIR 1967 SC 655. 4. N. Radhakrishnan vs. Maestro Engineers & Ors. reported in (2010) 1 SCC 72 . 5. Albon vs. Naza Motor Trading SDN BHD reported in 2008 (1) Lloyd’s Law Reports 1. 6. S.J.S. Business Enterprises Pvt. Ltd. vs. State of Bihar & Ors. reported in (2004) 7 SCC 166 . 7. Mayar (H.K.) Ltd. & Ors. vs. Owners & Parties, Vessel M.V. Fortune Express & Ors. reported in (2006) 3 SCC 100 . 8. Unreported judgment of Division Bench dated 7th September, 2009 in Siddhi Vinayak Industries Pvt. Ltd. vs. Virgoz Oils & Fats PTE Ltd. 9. Unreported judgment of the Division Bench dated 23rd January, 2010 in Nicco Corporation Ltd. vs. Prysmian Cavi E Systemi Energia s.r.l. & Anr. Glencore has filed an affidavit-in-opposition contending that the ex parte ad interim order dated 7th July, 2009 had been obtained by abusing process of this Court and by deliberate suppression of material facts. The instant application is liable to be dismissed on that ground alone, along with compensatory cost. In the affidavit-in-opposition there is a categorical assertion that the plaintiff-petitioner and Glencore had entered into an agreement/contract dated 10th June, 2008 which superseded the earlier contract dated 17th April, 2008. The instant application is liable to be dismissed on that ground alone, along with compensatory cost. In the affidavit-in-opposition there is a categorical assertion that the plaintiff-petitioner and Glencore had entered into an agreement/contract dated 10th June, 2008 which superseded the earlier contract dated 17th April, 2008. The said contract contain an arbitration clause, pursuant to which arbitration proceedings have already been commenced in accordance with rules of GAFTA. The contract dated 10th June, 2008 contains an arbitration clause which is set out hereinbelow: “Arbitration Clause: Any dispute arising out of or under this contract shall be settled by arbitration in accordance with the Arbitration Rule No.125 of the Grain and Feed Trade Association, in the edition current at the date of this contract, such Rules forming part of this contract, and which both parties shall be deemed to be cognizant. Arbitration to take place in LONDON.” Clause 18 of GAFTA Contract No.86 contains an arbitration clause in identical terms, which is as follows:- “18. ARBITRATION (a) Any and all disputes arising out of or under this contract or any claim regarding the interpretation or execution of this contract shall be determined by arbitration in accordance with the GAFTA Arbitration Rules, No.125, in the edition current at the date of this contract, such Rules are incorporated into and form part of this Contract and both parties shall be deemed to be fully cognizant of and to have expressly agreed to the application of such Rules. (b) Nothing contained under this Arbitration Clause shall prevent either party from seeking to obtain security in respect of their claim or counter claim via legal proceedings shall be limited to applying for and/or obtaining security for a claim or counter claim, it being understood that the substantive merits of any dispute or claim shall be determined solely by arbitration in accordance with the GAFTA Arbitration Rules, No.125.” According to the plaintiff-petitioner, even after filing this application, the plaintiff-petitioner appointed an arbitrator. The aforesaid fact had been suppressed from this Court. Mr. S.K. Kapur, appearing on behalf of the Glencore submitted and rightly that it was a settled principle of law that objections as regards existence, validity or otherwise of an arbitration agreement had to be taken before the Arbitral Tribunal. The aforesaid fact had been suppressed from this Court. Mr. S.K. Kapur, appearing on behalf of the Glencore submitted and rightly that it was a settled principle of law that objections as regards existence, validity or otherwise of an arbitration agreement had to be taken before the Arbitral Tribunal. The jurisdiction of the Arbitral Tribunal had also to be raised before the Arbitral Tribunal and not by way of a suit in restraint of arbitration proceedings. In this context Mr. Kapur referred to Article 16 of UNCITRAL Modern Law and Section 16 of the Arbitration and Conciliation Act, 1996. Even as per the English Law, that is, Section 30 of the Arbitration Act, 1996 the arbitrator is to rule upon his substantial jurisdiction including the question of validity of an alleged arbitration agreement. Under Section 32 of the English Arbitration Act, the Courts can enter the arena only with the consent of both the parties or with the permission of the Arbitral Tribunal. Mr. Kapur submitted that in no circumstances, could the Court have jurisdiction to decide the question of jurisdiction of the Arbitral Tribunal and/or the existence of the arbitration agreement. Under the Indian Arbitration Act, the English Arbitration Act and the GAFTA Rules, jurisdiction of the arbitrators had to be raised before the arbitrator. Mr. Kapur pointed out that the contract dated 10th June, 2008 which was disclosed in course of hearing, was dated, stamped and signed by the plaintiff-petitioner. Mr. Kapur submitted that the entire correspondence in the defendant’s compilation dealt with the plaintiff-petitioner either directly or through its broker but not with STC. Mr. Kapur submitted that there is no mention anywhere in the plaint or in the petition of C.S. No.266 of 2008 filed against the plaintiff-petitioner. The order of the English Court had also been suppressed. Mr. Kapur further submitted that the plaintiff-petitioner had also suppressed the fact that it had not been able to obtain any interim relief in its earlier suit. Moreover, while seeking restraint orders in relation to the arbitration proceedings in London, the plaintiff-petitioner had already nominated its arbitrator as per the GAFTA Rules. The arbitrator was nominated on 25th June, 2009. Mr. Kapur emphatically argued that a perusal of the GAFTA Rules make it amply clear that the Arbitral Tribunal appointed under the GAFTA Rules was competent to rule on its own jurisdiction. The arbitrator was nominated on 25th June, 2009. Mr. Kapur emphatically argued that a perusal of the GAFTA Rules make it amply clear that the Arbitral Tribunal appointed under the GAFTA Rules was competent to rule on its own jurisdiction. The GAFTA Rules also provided for appeal to a Board of Appeal. Mr. Kapur submitted that it was immaterial that the letter of credit might have been opened by STC. This did not in itself show that the agreement was between STC and Glencore. The letter of credit does not contain any reference to any underlying contract by and between STC and Glencore. Mr. Kapur submitted that it was well-settled that a letter of credit was an independent agreement. This proposition is well-established, finds support from inter alia the judgment in United Commercial Bank vs. Bank of India reported in (1981) 2 SCC 766 , cited by Mr. Kapur. Mr. Kapur further argued that the fact that bills of lading mentioned STC was of no consequence. In support of his submissions Mr. Kapur cited Carona Sahu Co. (P) Ltd. vs. State of Maharashtra reported in AIR 1966 SC 1153 and British India Steam Navigation Ltd. vs. Shanmughavilas Cashew Industries reported in (1990) 3 SCC 481. In response to the submission that there were no disputes referable to arbitration. Mr. Kapur argued that the GAFTA Rules envisaged and specifically provided that the Arbitral Tribunal could have the power to decide on the scope of the subject-matter of arbitration. It is also not material that Glencore did not apply for stay of suit under Sections 5 and 8 of the 1996 Act. Under the scheme of the 1996 Act where there is an arbitration clause, arbitration proceedings might continue notwithstanding the institution of a suit. As rightly argued by Mr. Kapur both under English law, the Indian Law as also the GAFTA Rules, the Arbitral Tribunal is competent to rule out its own jurisdiction. The question of jurisdiction of the Arbitral Tribunal can be raised before the Arbitral Tribunal itself. Moreover, as per the GAFTA Rules, the issue of whether the disputes referred are arbitrable or not is also to be decided by the Arbitral Tribunal itself. A fraud is an act of deliberate deception and/or misrepresentation, to induce another to do an act which he would not have done, but for such deception and/or misrepresentation and get an unfair advantage. A fraud is an act of deliberate deception and/or misrepresentation, to induce another to do an act which he would not have done, but for such deception and/or misrepresentation and get an unfair advantage. Particulars of fraud must be pleaded. As rightly argued by Mr. Mitra, serious allegations of fraud might more conveniently be adjudicated in a Civil Court. However, an arbitration agreement cannot be set at naught and the forum agreed upon by the parties avoided by recourse to mere allegations of fraud, vague and devoid of material particulars. The onus is on the party alleging fraud to make out a strong prima facie case of fraud in its pleadings. In the petition the allegation of fraud is vague and devoid of any particulars whatsoever. The plaintiff-petitioner has failed to make out any prima facie case of fraud. The factual issue of whether the agreement sought to be relied upon, has at all been executed by and/or on behalf of the plaintiff-petitioner, might be decided on evidence, in arbitration. In any case under the scheme of 1996 Act, there is no question of stay of arbitration proceedings even though a civil suit might have been instituted to agitate issues of fraud. This Court passed the interim order having regard to the assertion of the plaintiff-petitioner that there was no contract at all executed on 10th June, 2008. The aforesaid submission is apparently incorrect. Prima facie there is an agreement executed on 10th June, 2008 between Glencore and the plaintiff-petitioner, which has duly been signed, stamped and dated by and/or on behalf of the plaintiff-petitioner. Whether the agreement was, in fact, signed, stamped and dated by the plaintiff-petitioner is a factual dispute which the Arbitral Tribunal is competent to adjudicate. As observed above, there is apparently a contract between the plaintiff-petitioner and Glencore. The contract is apparently signed, stamped and dated by and/or on behalf of the plaintiff-petitioner. The fact that letters of credit might have been furnished by STC or bills of lading might have been issued in the name of STC is of no consequence. A bill of lading is intended to provide for the rights and liabilities of the parties arising out of the contract of affreightment and is not evidence of contract of sale of goods. A bill of lading is intended to provide for the rights and liabilities of the parties arising out of the contract of affreightment and is not evidence of contract of sale of goods. As held in Carona Sahu’s case (supra) “by shipment on board a ship under a Bill of Lading all that is done is that goods are delivered on board a vessel to be carried and such a delivery is a delivery to the captain of the vessel as a bailee for delivery to the person indicated by the Bill of Lading.” The plaintiff-petitioner obtained the interim order of this Court by suppression of facts. The petition is thus dismissed and the interim order earlier passed by this Court is vacated. Ms. Puja Das Chowdhury, appearing on behalf of the petitioner prays for stay of operation of this order. The prayer for stay is considered and refused. All parties are to act on a signed copy of the minutes of the operative part of this judgment/order on the usual undertakings.