Judgment : PINAKI CHANDRA GHOSE, J The principal issue in this appeal is whether the learned Single Judge was justified in disposing of two several applications filed by defendant No.1 and 2 in C.S.No.18 of 2009 under Section 45 of the Arbitration Conciliation Act for referring the parties to arbitration and for permanent stay of the suit by observing that in view of the order of the Hon’ble Supreme Court dated May 10, 2010, no order need be passed in the matter. Defendant No.1 and 2 had preferred two separate appeals being A.P.O.No.378 of 2010 and 379 of 2010 assailing the said order. The principal grievance of the defendant No.1, namely, Prysmian (Dutch) Holding BV is that the judgment and order of the Hon’ble Supreme Court dated 6th May, 2010 cannot and does not have any manner of application inasmuch as the said order was passed on the basis of consent given by the plaintiff and the defendant No.2 in respect of the “Frame Agreement” entered into between the said plaintiff and the defendant No.2 on 10th of December, 2007. In order to appreciate the propriety of the order dated May 19, 2010 it is necessary to refer to some of the facts as are relevant for the purpose of deciding the instant appeal. Nicco Corporation Ltd., hereinafter referred to as the plaintiff filed a suit being C.S.No.18 of 2009 against Prysmian (Dutch) Holding BV, Prysmian Cavi E and Nicco Corporation Ltd. In the suit the plaintiff claims that the plaintiff is a cable manufacturing company. The defendant No.1 is a part of the Prysmian Group of Companies and one of the largest cable key manufacturer in the world. The defendant No.2 is also a part of the said group. It is alleged that after detailed negotiation between the plaintiff and Prysmian Cable Holding BV which is an associated concern of the defendant Nos.1 and 2, the defendant No.3 was incorporated on 19th November, 2007 with the object of taking of cable division of the plaintiff. The defendant No.2 is also a part of the said group. It is alleged that after detailed negotiation between the plaintiff and Prysmian Cable Holding BV which is an associated concern of the defendant Nos.1 and 2, the defendant No.3 was incorporated on 19th November, 2007 with the object of taking of cable division of the plaintiff. Following the incorporation of the defendant No.3 and the negotiations that had taken place subsequently between the Prysmian and Cable Holding BV, the master agreement was entered into between the plaintiff and defendant Nos.1 and 3 on December 10, 2007 in which it was agreed that in consideration of and upon Nicco transferring the cables division to the defendant No.3 Prysmian, the defendant No.1 would simultaneously subscribe to 60 per cent shareholding in the new company that is to say, the defendant No.3 and pay to the new said company, the consideration for the transfer of the result of research and development activities pertaining to the cables division the said new company also would simultaneously pay the price for the transfer to Nicco (CD price) and transfer the result of research and development activities. The defendant No.1 would be required to get a scheme sanctioned by this Hon’ble Court by which the cable division of the plaintiff would be transferred to the defendant No.3. The master agreement provides a dispute resolution mechanism in paragraph 14.2, the relevant clauses of such dispute resolution mechanism are reproduced herein below. “14.2 Dispute Resolution 14.2.1 The parties agree to negotiate in good faith to resolve any dispute between them regarding any of the Transaction Documents. If the negotiations do not resolve the dispute to the reasonable satisfaction of the parties, then each of the parties shall nominate a person with respectable professional standing and unimpeachable conduct as its representative. These representatives shall, within thirty (30) days of a written request by any Party to call such a meeting attempt in good faith to resolve the dispute. 14.2.2. If the disputes cannot be resolved by such persons in such meeting, any of the Parties may invoke arbitration proceedings for the resolution of the disputes and differences by notice in writing to the other Party (“Arbitration Notice”) which shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce. One arbitrator each shall be appointed by the parties. One arbitrator each shall be appointed by the parties. The arbitrators so appointed shall appoint a third arbitrator. 14.2.3. The place of arbitration shall be Dubai, UAE and all arbitration proceedings shall be conducted in English.” Simultaneously with the execution of the said master agreement, another agreement of the same date, that is, December 10, 2007 was entered into between the plaintiff and the defendant No.2 hereinafter referred to as the “Frame Agreement”. The agreement provides for supply of cables manufactured by the plaintiff to the said defendant against any purchase orders that might be issued by the said defendant and/or it affiliates. The said “frame” agreement in Clause 5.6 deals with “advance payments” which is reproduced herein below. “5.6 Advance Payments In consideration of the production capacity granted by the Supplier in order to match the future requirements of the Purchaser, the Purchaser shall make the following advance payments: (a) 25% of the estimated amount of INR 300 million to be paid within five(5) banking business days after the date of execution of this Agreement; (b) An additional 25% of the estimated amount of INR 300 million shall be paid by January 18, 2008. Provided that all such advance payments shall be pro-rata set-off against any payment to be made by the Purchaser to Supplier under the orders. Notwithstanding anything to the contrary, the Supplier agrees to refund the advance amount(s) not utilized in respect of any Order within one year from the date of receipt of the relevant advance amount.” Under Clause 8 of the said Frame Agreement, the respondent No.2 had the right to withdraw from and rescind any Order issued under the Frame Agreement and also to terminate the said Frame Agreement by a written notice as will be evident from the said Clause 8 which is reproduced herein below. “8. Withdrawal 8.1 The Purchaser shall have the right, exercisable in its sole discretion, to withdraw from and to rescind any relevant Order (even if already accepted by the Supplier) by written notice. Nothing shall be due from the Purchaser to the Suppli8er as a consequence of the exercise of such right of withdrawal, except for the right of the Supplier to seek compensation for work usefully carried out up to such date. Nothing shall be due from the Purchaser to the Suppli8er as a consequence of the exercise of such right of withdrawal, except for the right of the Supplier to seek compensation for work usefully carried out up to such date. 8.2 The Purchaser shall have the right, exercisable in its sole discretion, to withdraw from and to terminate this Agreement by written notice and without bearing any obligation and/or incurring any liability toward the Supplier. Further, the Supplier shall promptly repay the advance amounts not utilized in respect of any Order. The said Frame Agreement was to remain valid, in force and effect until 31st January, 2009 in terms of Clause 6 of the said Frame Agreement which is reproduced herein below. 6. “This Agreement shall be deemed to have taken effect as of the date of its execution by the Parties and will remain in full force and affect until the 31st January, 2009, unless extended by mutual agreement between the Parties. On the expiration of this term this Agreement will terminate without the necessity of any notice.” The respondent No.2 in terms of the Frame Agreement made payment of Rs.15 crores in two installments of Rs.7.5 crores each on 17th December, 2007 and 18th January, 2008 respectively in terms of Clause 5.6(a) and 5.6(b) of the said Frame Agreement. In terms of master agreement, a scheme was submitted by the plaintiff before the Hon’ble High Court at Calcutta which is sanctioned on 30th January, 2008 for transfer of the cable division to the defendant No.3. The certified copy of the order sanctioning the scheme was, however, not filed by the plaintiff in view of change of mind of the defendant No.1 and on the faith that the defendant No.1 acquired the cable division by way of slump sale. In fact, it is the contention of the plaintiff that subsequent to sanctioning of the scheme, the Master Agreement was terminated by the defendant No.1 by its letter dated 24th July, 2008 and the plaintiff had exercised the option to go from a slump sale. The Master Agreement provides for termination of the said agreement before 31st July, 2009. In fact, it is the contention of the plaintiff that subsequent to sanctioning of the scheme, the Master Agreement was terminated by the defendant No.1 by its letter dated 24th July, 2008 and the plaintiff had exercised the option to go from a slump sale. The Master Agreement provides for termination of the said agreement before 31st July, 2009. Under the said Master Agreement, the duration of the said agreement would be till 31st July, 2009 provided that the scheme is filed by the Hon’ble High Court at Calcutta by January 15, 2008, however, it was clarified that in the event of the scheme filed that the Hon’ble High Court occurs after January 15, 2008 then the expiry date of the said agreement would be postponed accordingly by the same number of days. The plaintiff says that the defendant No.1 alleging material deviation in the key indicators expressed its option to treat the Master Agreement as terminated. The plaintiff claims that simultaneously with the termination of the Master Agreement negotiation commenced between the parties which initially resulted in agreement of October 8, 2008 which is in novation of the Master Agreement as well as Frame Agreement. According to the plaintiff such new agreement of October 8, 2008 contemplated transfer of 100% of the plaintiff’s shareholding in the defendant No.3 to the defendant No.1 and the consideration there for would take into consideration the claim that the defendant No.2 had put forwarded on the basis of the Frame Agreement. This purported new agreement of 8th October, 2008 again had undergone a change and was substituted by a fresh agreement and arrangement between the parties as would appear from the agreement dated 4th December, 2008. The plaintiff says that the said new agreement of December 4, 2008 contemplated transfer of the cable division of the plaintiff to a company to be established by the defendant No.1 and 2 on a slump sale basis at a consideration of Rs.70 crores, subject to deduction of the maximum amount of Rs.10 crores based on result of an audit. The plaintiff refers to such agreement to refer to as a new Master Agreement. The plaintiff refers to such agreement to refer to as a new Master Agreement. The plaintiff alleges that on December 18, 2008, it had forwarded such draft new Master Agreement on the basis of slump sale of the cable division of the plaintiff which provided for transfer of Rs.15 crores to the new company as liability of loan recoverable to the defendant No.2. The plaintiff contends that the said draft new Master Agreement is a standard format agreement and in case of dispute arising with regard to any terms of such agreement, this Hon’ble Court would be placed to settle those terms keeping in mind the agreement already reached between the parties for transfer of the cable division of the plaintiff to the defendant No.1 by the defendant No.2. In the mean time two notices relating to the termination of the Master Agreement and the Frame Agreement were issued by the defendant No.1 and defendant No.2. The notices regarding the termination of the Master Agreement on December 10, 2007 were issued by the defendant No.1 on November 17, 2008 and the defendant No.2 by a notice dated November 18, 2008 made a claim of Rs.15 crores under the Frame Agreement. In the suit, the said notices along with the subsequent notice dated 14th January, 2009 issued on behalf of the defendant No.2 were challenged. In the notice dated 14th January, 2009, the defendant apart from making a claim of Rs.15 crores had terminated the said agreement with the immediate effect. The plaintiff apart from seeking a relief for settling the terms of the slump sale agreement in terms of an alleged agreement dated December 4, 2008 prays for cancellation of all the said three notices dated 17th February, 2008 and 14th January, 2009. The plaintiff also prays for declaration that Clauses 4.5 and 4.5.1 of the Master Agreement dated December 10, 2007 has been incorporated in terrorism and penal and illegal, null and void. Subsequent to the filing of the said suit, inter locutory applications were filed on various interim relieves. Both the defendants, namely, defendant No.1 and 2 had filed two separate applications under Section 45 of the Arbitration and Conciliation Act, 1996 for referring the parties to arbitration. Subsequent to the filing of the said suit, inter locutory applications were filed on various interim relieves. Both the defendants, namely, defendant No.1 and 2 had filed two separate applications under Section 45 of the Arbitration and Conciliation Act, 1996 for referring the parties to arbitration. Both the defendants urged that there is a valid arbitration clause and if any dispute is arising out of the said agreement, the same has to be referred to arbitration in terms of the relevant clauses of the said two agreements. The validity of the said two agreements are not in dispute. In the plaint, there is no allegation that any of the said two agreements, is null and void, inoperative or incapable of being performed. The basis of the suit is novation of the Master Agreement and the Frame Agreement. The plaintiff alleges that the parties have agreed to new arrangement initially on 8 October, 2008 and subsequently on 4th December, 2008 and accordingly there has been a super cessation of the Master Agreement or the Frame Agreement as the case may be. If one carefully goes through the plaint almost in every other paragraph, there is a reference to the Master Agreement or the Frame Agreement and the plaintiff gives its own narration of the facts and contended that there is a novation of both the agreements. The Court in deciding such matters have to give due regard to the arbitration clauses appearing in both the agreements. The Court is required to be circumspect and careful to invoke its jurisdiction in such matters having regard to the restrictions put forwarded on the otherwise plenary jurisdiction of a Civil Court in view of Sections 5, 8 and 45 of the Arbitration Constitution. The defendant No.2 has already initiated a proceeding before ICC international code of arbitration by filing its request to arbitration under Article 4 of the ICC Rules. It further appears that by a judgment and order dated 29th January, 2010 a Division Bench of this Hon’ble Court had the occasion to consider the plea of novation relevant portion whereof is reproduced herein below:- “Thus from the correspondences as above, it is at this stage clear the parties have not conclusively settled their terms as embodied in the draft agreement and the same is yet to be finalized. Following the ratio of the Supreme Court decision (supra) we hold that the said agreement is absolutely in a negotiation stage and it has not been finalized as yet. In view of findings the decision of the Supreme Court reported in AIR 1959 SC 1362 and of this Court reported in ILR 41 Cal 35 are inapplicable as factually in those cases novation was to be found.” We, therefore, cannot accept the agreement of Mr. Mitra that the said agreement has reached its finality and has assumed binding character upon the parties. In view of the discussion as above we hold that the arbitration agreement subsists and valid. The plea of novation was rejected. In an appeal preferred against the said judgment and order dated 29th January, 2010, the Hon’ble Apex Court recorded an agreement between the parties to refer all their disputes to the sole arbitrator on certain terms and conditions. In the said proceeding, the defendant No.1 therein was essentially a proforma respondent and no relief, in fact, was claimed against the said defendant. The order passed in the said suit, namely, C.S.No.69 of 2009 relates to the commencement or continuation of the arbitration proceeding before the ICC in terms of the letter of request dated 23rd February, 2009. The judgment of the Division Bench clearly records that no relief has been claimed against the said defendant No.1 in the said suit. In view of the order of the Hon’ble Supreme Court which disposes of C.S.No.69 of 2009, the application filed by the defendant No.2 being G.A.No.685 of 2009, therefore, automatically succeeds. In fact, that is our understanding of the order of the Hon’ble Supreme Court dated 6th May, 2010. In view of the Hon’ble Supreme Court dated May 6, 2010 it is no more open for the plaintiff to contend that the arbitration clause in the Frame Agreement has been superseded. This is, however, prima facie in the view of the observation made by the Hon’ble Supreme Court that all questions of law were left open. In coming back to the objections raised by the plaintiffs in respect of the Master Agreement who are accepted the same reasoning as was held by the Hon’ble Division Bench in its judgment and order dated 29th January, 2010. In fact, the plaintiff’s own cases that there is a novation of the Master Agreement and Frame Agreement. In coming back to the objections raised by the plaintiffs in respect of the Master Agreement who are accepted the same reasoning as was held by the Hon’ble Division Bench in its judgment and order dated 29th January, 2010. In fact, the plaintiff’s own cases that there is a novation of the Master Agreement and Frame Agreement. The question is as to whether there is a novation or not, would be a subject-matter in the arbitration, prima facie, it appears that there is a valid agreement and the matter is required to be considered by the arbitrator. We are only reminding ourselves of the fact that at this stage we are only required to consider whether there is a valid arbitration agreement and unless such agreement is null and void, inoperative and incapable of performance, the Court is duty bound to refer the parties to arbitration. It cannot be contended that the Master Agreement is null and void or inoperative or incapable of performance. The parties have accepted that there is a valid Master Agreement and a Frame Agreement. The only defence that is both the said agreements have been superseded by a new draft Master Agreement dated 4th December, 2008. A Division Bench as stated earlier refused to accept such plea of novation of the Frame Agreement. The curtailment of the power of Civil Court is clearly discernible from the non-obstante clause with which Section 45 starts read with other provision of the Act. The reference to any judgment rendered under 1940 Act would be of no relevance since the discretion of the Court to refuse under the new Act is limited to the said three grounds only. In view of the aforesaid the defendant No.1 may proceed with the arbitration proceeding in terms of the dispute resolution mechanism provided in Clause 14.2.2 of the Master Agreement dated 10th December, 2007. The plaintiff is restrained from proceeding of C.S.No.18 of 2009. Moreover, no relief has been claimed in C.S.No.18 of 2009 against defendant No.3. In view of the order passed on 6th May, 2010 by the Hon’ble Supreme Court, no further order need be passed in respect of G.A.No.685 of 2009 both appeals are disposed of accordingly.