Judgment :- 1. These Applications are filed by the Applicants/Defendants 1 & 2 under Section 8 of the Arbitration and Conciliation Act 1996 (hereinafter referred as “the said Act”) to refer the parties in the above Suit C.S.No.42 of 2000 and also in C.S. No.663 of 1999 to arbitration and to stay all further proceedings in both the Suits. 2. The cause of action of the Plaintiffs as laid in C.S. No.42 of 2000 arises as stated herein: The Plaintiffs are carrying on business of import, selling, auctioning and processing of various categories of scrap materials and its allied products to various customers like Government Departments, Corporations, Companies, Firms and individuals through out country. In the course of the said business they entered an agreement on 22.12.1995 with the First Defendant who is a processing and conversion agent and also selling agents of the Plaintiffs for the State of Tamil Nadu, for converting 2000 metric tons of carbon steel melting scrap to mild steel Ingots. As per the terms of the above said agreement, the Defendants were required to deposit a sum of 1,88,26,070/- by way of security to the Plaintiff against delivery orders issued by the Plaintiff. By terms of the same agreement, the Plaintiff was also required to deliver 2000 metric tons of carbon steel melting scrap of the First Defendant. In pursuance of the aforesaid agreement, the First Defendant had to pay the sale proceeds to the Plaintiff within a stipulated period. The Plaintiff have issued two delivery orders dated 22.12.1995 one for 1800 metric tons and another for 200 metric tons of carbon steel melting scrap. After the receipt of the corporate and personal Bank guarantee as well as the ten post dated cheques on behalf of the Second Defendant, the Defendant had taken delivery of 1996. 5 metric tons of materials between the period 24.12.1995 to 3.2.1996. According to the Plaintiff, the Defendants did not pay any amount in terms of the aforesaid agreement within the stipulated period which necessitated the Plaintiff to sent the cheques for clearance to their Bankers/ Indian Overseas Bank, Muthailpet, Chennai but all the cheques were returned by the bankers by 18.6.1996 with an endorsement “Payment Stopped by the Drawer”. According to the Plaintiff, the Defendants did not pay any amount in terms of the aforesaid agreement within the stipulated period which necessitated the Plaintiff to sent the cheques for clearance to their Bankers/ Indian Overseas Bank, Muthailpet, Chennai but all the cheques were returned by the bankers by 18.6.1996 with an endorsement “Payment Stopped by the Drawer”. After issuing legal notice to the Defendants, the Plaintiff initiated Criminal proceedings against the Defendants under Section 138 read with Section 141 of Negotiable Instrument Act and the same is pending. In the above said factual matrix, the Plaintiff has come forward with the Suit for recovery of a sum of `3,85,64,129/- with interest. 3. The above said Suit in C.S.No.42 of 2000 has been presented before this Court on 6.6.1999. The Registry has returned the same for certain compliances and the Suit has been numbered as C.S.No.42 of 2000 only in the year 2000. 4. The Sixth Defendant, one of the Director alone filed Written Statement and denied the allegations that the cheques were issued and delivered by the Second Defendant on behalf of the other Defendants. But however, it is averred that the matter is between the Plaintiff and the Second Defendant and the Sixth Defendant has nothing to do with the same. 5. In the meanwhile, the First Defendant has filed a Suit in C.S. No.663 of 1999 in this Court directing the Defendants to furnish a true account of claim and adjustments and to refund a sum of `12,16,000/- towards the transactions with the Plaintiff in C.S. No.42 of 2000 who had been shown as the First Defendant in C.S. No.663 of 1999. Though there is no reference to the agreement dated 22.12.1995 in the Plaint but there is a specific averments regarding post dated cheques issued by the First Defendant. It is further averred in para 11 of the plaint in C.S. No.663 of 1999 that at the time of placing the orders, the Plaintiff in C.S.No.42 of 2000 insisted for issuance of post dated cheques for the entire amount and the First Defendant had issued cheques to the tune of `1.82 crores. The First Defendant had claimed a sum of `12,15,000/- from the Plaintiff in C.S. No.663 of 1999 apart from the relief for rendition of accounts. 6. The First Defendant had claimed a sum of `12,15,000/- from the Plaintiff in C.S. No.663 of 1999 apart from the relief for rendition of accounts. 6. At this stage, it would be relevant to set out the Arbitration Clause contained in the two agreements dated 22.12.1995 which is identical in terms and the said clause reads as follows: “In case of any difference or dispute arising between Processing and Conversion Agent and the Principal with regard to the interpretation of the terms and conditions of the Agreement or breach of any of the conditions of this agreement, the matter shall be referred to arbitration as per the provisions of Indian Arbitration Act, 1940. Each of the parties shall appoint one Arbitrator from their side and in case of any difference between the two Arbitrators, the matter shall be resolved by an Umpire appointed jointly by both the Arbitrators before proceeding with the reference. The Arbitration award by the Arbitrators and in the event of their failure to agree, the award of the Umpire shall be final and binding on both the parties.” 7. The said Arbitration Agreement is relied upon by the Defendants 1 & 2 in making the present Application. In fact, the Defendants 1 & 2 seek a direction from this Court to refer both the Suits i.e. C.S. No.42 of 2000 & C.S.No.663 of 1999 to arbitration as per the terms of the agreement dated 22.12.1995. It is pertinent to point out that in C.S.No.42 of 2000 though the Defendants 1 & 2 have not filed their Written Statement and D6 alone had filed the Written Statement, this Court has framed the issues after draft issues submitted by both the Plaintiff and the Defendants 1 & 2. A request was made for joint trial of both Suits on the ground that common issues are to be adjudicated. Accordingly, the Registry has been directed to list both the Suits for joint trial before the learned Additional Master for filing proof Affidavit and for examination of witnesses on 10.11.2008. When the matter stood thus, the Defendant 1 & 2 have come forward with these Applications to refer the matter to arbitration. 8. Accordingly, the Registry has been directed to list both the Suits for joint trial before the learned Additional Master for filing proof Affidavit and for examination of witnesses on 10.11.2008. When the matter stood thus, the Defendant 1 & 2 have come forward with these Applications to refer the matter to arbitration. 8. The learned Counsel for the Applicant submitted that the conditions which are specified under Section 8 of the Act to invoke Arbitral Clause had been satisfied and the Defendants 1 & 2 having moved this Court before submitting their First Statement on the substance of the dispute, there cannot be any impediment in directing the parties to go for arbitration. It is contended that merely because there is delay in approaching the Court it will not take away the right of the Defendant especially when there is an Arbitration Clause in the agreement entered into between the parties and the subject matter of the Suit is the same as the subject matter of arbitration and it has got to be referred to arbitration. 9. In support of his contentions Mr. K. Jayachandran learned Counsel for the Applicants/Defendants 1 & 2 relied upon the decision of the Hon’ble Division Bench of this Court reported in Sri Ragavendra Advertising, Coimbatore & another v. Prasar Bharati (Broadcasting Corporation of India), rep. by the Station Director, Commercial Broadcasting Service, All India Radio, Chennai, 2009 (8) MLJ 1602 (Mad-DB). The learned Counsel also drew the attention of this Court to various other decisions to countenance his argument that it is obligatory for the Court to refer the parties to arbitration in terms of Arbitration Agreement. They are given below: 1. P. Anand Gajapathi Raju and others v. P.V.G. Raju (died) and others, AIR 2000 SC 1886 . 2. Hindustan Petroleum Corporation Ltd. V. Pinkcity Midway Petorleums, 2003 (3) CTC 438 (SC): AIR 2003 SC 2881 ; 3. AIR 2004 NOC 99 (Cal); 4. National Insurance Co Ltd. V. Boghara Polyfab Pvt. Ltd., AIR 2008 (4) CTC 854 (SC); 5. Andritz Oy., rep.through Power of Attorney Agent, Mr. Siraj Ahmad, New Delhi v. Enmas Engineering Pvt. Ltd., rep. by its Director and Principal Officer, Chennai and another, 2007 (4) CTC 186 (Mad); 6. Rastriya Ispat Nigam Ltd. & another v. Verma Transport Co., AIR 2006 SC 2800 . 10. On the other hand, Ms. Andritz Oy., rep.through Power of Attorney Agent, Mr. Siraj Ahmad, New Delhi v. Enmas Engineering Pvt. Ltd., rep. by its Director and Principal Officer, Chennai and another, 2007 (4) CTC 186 (Mad); 6. Rastriya Ispat Nigam Ltd. & another v. Verma Transport Co., AIR 2006 SC 2800 . 10. On the other hand, Ms. Radhika Krishnan learned Counsel for the Respondents contended that when the Defendant decided to renounce his right to enforce Arbitral proceedings and instead traversed the avenue of the Suits not merely by resisting the Plaintiff’s claim but by filing its own counter claim for refund of money, it is no longer open to them to pray to the Court that the parties be referred to arbitration. In support of her arguments, she placed reliance on the decision of the Hon’ble Delhi High Court reported in Raj & Associates v. Videsh Sanchar Nigam Ltd & Others, 2004 (3) R.A.J. 238 (Del). It is held thus: “In my view once the Plaintiff opts to file a Suit it is no longer open to him to pray to the Court that the parties be referred to arbitration. The present case is not one where the Plaintiff can be heard to plead ignorance of the existence of the Arbitration Clause.” 11. In Moulana Asad Madani & Others v. Abdul Hafiz, 2006 (4) RAJ 634 (Del), it is held that invoking the jurisdiction of the Civil Court is a common law right and it is available to every citizen in the country; arbitration, however runs as an exception to that rule and it is attracted only when two parties agree to refer the disputes to arbitration. But however, an action, such as filing of a Civil Suit by a party to arbitration must be construed as that party resolved to override the Arbitration Clause. 12. The `party’ referred to in Section 8 (1) of the said Act in my view is a party who is entitled to maintain an Application thereunder. The Applicatins/ Defendants 1 & 2 who have themselves opted to institute the Suit in enforcement of their rights is clearly not the party envisaged under Section 8 (1) of the said Act. By reason of their conduct in instituting the Suit in C.S. No.663 of 1999, the Defendants 1 & 2 are estopped from maintaining the present Applications. 13. The Applicatins/ Defendants 1 & 2 who have themselves opted to institute the Suit in enforcement of their rights is clearly not the party envisaged under Section 8 (1) of the said Act. By reason of their conduct in instituting the Suit in C.S. No.663 of 1999, the Defendants 1 & 2 are estopped from maintaining the present Applications. 13. In the present case, the Defendants have filed the Suit in C.S.No.663 of 1999 not only for the relief for rendition of accounts but also for refund of the amount which amounts to a counter claim. It is, thus, clear that the Defendants 1 & 2 had given a go bye to the Arbitration Agreement by instituting a Suit for the aforesaid reliefs and therefore, they are precluded from invoking the Arbitration Agreement more so, when they have allowed this Court to frame the issues and posted both the Suits for joint trial. For the forging reasons, the Application must fail and the same is accordingly dismissed. Consequently, the Application filed in A.No.4137 of 2009 is also dismissed.