JUDGMENT Soumen Sen, J.: The instant appeal is arising out of an order passed on September 9, 2011 in refusing to restrain the respondent No.1 from taking steps in terms of the GAFTA Rules, 125 for resolution of disputes by arbitration. 2. The power and jurisdiction of a Civil Court to restrain a party from making reference to an International Commercial Arbitration and to have the said dispute resolved by such International Arbitration is the issue required to be decided in the present appeal. 3. Before we advert to any other facts, we record that there is no dispute that the contract containing arbitration clause has been duly executed by the parties. 4. We shall only refer to some of the relevant facts that are necessary for deciding the propriety and legality of the order passed on September 9, 2011. 5. In or about October 25, 2010, the appellant had entered into three several contracts including a contract bearing No.#LMJ/SIC/Oct/01 (hereinafter referred to as the ‘said contract’) whereby the appellant had agreed to purchase from the defendant No.1 and defendant No.1 had agreed to sell to the appellant 15000 MT (+ - 5 %) of non basmati parboiled rice (15% maximum broken) of 2009-10 origin or latest crop of Thailand origin at the rate of USD 450 per MT). The appellant under the contract of sale was required to open an irrevocable confirmed unrestricted letter of credit in US Dollars in favour of the defendant No.1 within five working days from the date of signing of the contract through Standard Chartered Bank (India) for the value of the goods to be shipped under the contract. 6. Thereafter some of the terms of the contract was amended on 7th December, 2010. There were several amendments also being carried out to the Letter of Credit and last of such amendment was made on 10th December, 2010. The said Letter of Credit was ultimately abandoned in view of the fact that the shipment was made on board the Vessel M.V. Tu Man Gang which was a North Korean Vessel and was not covered by the documentary L/C opened by the appellant through Standard Chartered Bank. Accordingly, the parties have agreed to replace such Letter of Credit by a Bill of Exchange drawn on 19th January, 2011 and received by the banker of the appellant/plaintiff, namely, the Bank of Baroda on 21st January, 2011. Accordingly, the parties have agreed to replace such Letter of Credit by a Bill of Exchange drawn on 19th January, 2011 and received by the banker of the appellant/plaintiff, namely, the Bank of Baroda on 21st January, 2011. The appellant requested the defendant No.1 to accept the said documents forwarded by the exporter, respondent No.1, directly without intervention of the bank and such documents were forwarded by the appellant to its banker, namely, Bank of Baroda with an undertaking to accept such document. All documents relating to the payment covered under the instant contract representing 97.78% were forwarded to Bank of Baroda and Bank of Baroda accepted those documents. On the basis of such original documents, the appellant took delivery of all goods shipped on board the Vessel M.V. Tu Man Gang. Bank of Baroda and LMJ International Ltd. both accepted the Bill of Exchange whereby the acceptor instead of making immediate payment agreed to pay the full amount of the instrument on a designated due date to the holder of the original Bill of Exchange. This designated due date was 16th February, 2011. 7. The appellant contended that in course of discharge of cargo, it was found that the goods dispatched by the defendant No.1 was not of the contractual specification and the grains were found to be damaged and discoloured in view thereof it is alleged that the parties had agreed that the defendant No.1 would send its representative to Bangladesh for joint inspection of the rice and after such inspection report is made available to the parties, the said purpose would mutually settle the amount after deducting the value of inferior quality of goods which was shipped by the defendant No.1. In the meantime, the defendant no.1 would accept provisionally an amount representing 90 % of the value of the invoice and the balance 10% would be settled after inspection of the shipped rice and finalization of the amount which may be found to be due and payable by the appellant to the defendant. The appellant contended that in good faith and relying on such agreement which was duly recorded in the letter dated 14th February, 2011 instructed its banker, namely, the Bank of Baroda to remit 90% of the invoice value to the defendant no.1 and the defendant No.1 on the basis of such agreement had received the said amount. The appellant contended that in good faith and relying on such agreement which was duly recorded in the letter dated 14th February, 2011 instructed its banker, namely, the Bank of Baroda to remit 90% of the invoice value to the defendant no.1 and the defendant No.1 on the basis of such agreement had received the said amount. The defendant no.1, however, after receiving the said amount sought to repudiate the said agreement by refusing to send any of its representatives for joint inspection and demanding forthwith payment of the balance 10% of the invoice value without holding any such joint inspection. 8. This act of repudiation resulted in a dispute as to the entitlement of the respondent No.1 to claim and demand balance 10% of the invoice value without first having a joint inspection as mutually agreed upon between the parties. It is contended that the Government of Bangladesh, namely, the consignee to whom the said rice was ultimately delivered and raised a claim for damages to the extent of USD 430,748.42 for the inferior quality of rice. Thereafter, some discussions held between the parties in order to resolve the issue in which it was alleged that an agreement was arrived at between the parties that after adjustment of the claims and counter-claims of the parties against each other in respect of the three contracts, the appellant shall pay to the defendant no.1 a sum of US $23,258.01 in full and final settlement of their dues. Such discussion and/or agreement was recorded in an electronic mail dated 1st June, 2011. The defendant no.1 in response to the said letter by a communication dated 10th June, 2011 denied such settlement and again claimed the balance 10% amounting to US $3,823,48.90. The defendant no.1 by such communication sought to avoid its liability in respect of such inferior quality rice supplied by it by purporting to allege that the Bangladesh Government being the ultimate purchaser of the said rice had accepted such inferior quality rice and had released the entire payment to the appellant. 9. The respondent No.1 contended that the plaintiff inspected the goods independently on 7th march, 2011. 9. The respondent No.1 contended that the plaintiff inspected the goods independently on 7th march, 2011. It was only on 1st June, 2011 that the appellant having failed to meet its obligation to make payment of various outstanding sums in respect of this contract and the other contracts arbitrarily finalized and offered a meagre amount towards the price of the goods sold and delivered. This was not accepted giving rise to a dispute on 1st June, 2011. The defendant No.1 duly demanded balance 10% amount from the defendant No.2 and ultimately by a letter dated 28th July, 2011, the said defendant No.1 referred the said dispute to the arbitration in terms of the GAFTA Arbitration Rules, 125. The said defendant No.1 in furtherance thereof appointed Mr. R.A. Barbar as its nominee arbitrator with a request to the plaintiff to appoint arbitrator. The contents of the notice dated 28th July, 2011 is reproduced herein-below:- “Dated 28th July, 2011 LMJ International Limited LMJ Complex, 158, Hemanta Basu Sarani, 5th Floor, Kolkata- 700 001, India. Fax No.0091 3339839900 Dear Sir, Ref. LMJ International Limited Kolkata, India Vs. Sleepwell Industries Co. Ltd. Bangkok Contract No.LMJ/SIC/OCT/01 dated 25th October, 2010 on respect of 5000 MTS of Non Basmoti Parboiled Rice 15% (maximum) broken 2009-10 or latest Corp. Thailand origin. Sub: Notice for arbitration With reference to the above we may inform that we intend to refer the dispute as arising out of the above contract to arbitration in accordance with GAFTA Arbitration Rules, 125. This letter may be treated as notice showing our intention to refer the dispute to arbitration. Thanking you, Sd/-Illegible Yours trully, For Sleepwell Industries Co. Sub: Notice for arbitration With reference to the above we may inform that we intend to refer the dispute as arising out of the above contract to arbitration in accordance with GAFTA Arbitration Rules, 125. This letter may be treated as notice showing our intention to refer the dispute to arbitration. Thanking you, Sd/-Illegible Yours trully, For Sleepwell Industries Co. Ltd. (Authorised Signatory)” This notice and the demand made by the defendant No.1 from the defendant No.2 to make payment of the 10% of the invoice value as resulted in filing the aforesaid suit being C.S.No.185 of 2011 in which the plaintiff/appellant has, inter alia, prayed for the following reliefs:- “a) A decree for a declaration that there is no agreement between the plaintiff and the defendant no.1 to refer any dispute arising out of the said contract bearing No. #LMJ/SIC/Oct/01 dated 25th October, 2010 to arbitration either as per GAFTA 125 in London or otherwise; b) A decree for a declaration that the disputes and differences between the plaintiff and the defendant no.1 arising out of the contract bearing No. #LMJ/SIC/Oct/01 dated 25th October, 2010 cannot be referred to arbitration in terms of GAFTA Arbitration Rules No.125; c) A decree adjudging the two letters both dated 28th July, 2011 issued by the defendant no.1 to the plaintiff to be void or voidable and for delivery up and cancellation of the same; d) A decree for perpetual injunction restraining the defendant no.1, its servants, agents and/or assigns from giving any effect and/or from taking any step and/or further step in terms of the said letters dated 28th July, 2011 both written by the defendant no.1 to the plaintiff in any manner whatsoever.” In the said proceeding, on or about August 9, 2011, the appellant filed an inter locutory application being G.A. No.2427 of 2011 or on about August 9, 2011 praying, inter alia, for the following reliefs:- “a) An order of temporary injunction do issue restraining the respondent no.1, its servants, agents and/or assigns from giving any effect and/or taking any step in terms of the said letters both dated 28th July, 2011 being Annexures “X” and “Y” hereto in any manner whatsoever; b) An order of temporary injunction do issue restraining the respondent no.2, its servants, agents and/or assigns from making and/or remitting any payment to the respondent no.1 or its banker in terms of the said letter dated 4th August, 2011, being Annexure “Z” hereto, issued by the respondent no.2; c) An order of temporary injunction do issue restraining the respondent no.2, its servants, agents and/or assigns from earmarking or withholding any amount, either the said sum of Rs.1,80,00,000/- or any other sum in the account of the in the account of the petitioner with the respondent no.2 for being paid to the respondent no.1 and/or its said banker in terms of the said contract bearing No. #LMJ/SIC/Oct/01 dated 25th October, 2010 or otherwise.” 10. The learned single Judge passed an ex parte ad interim order restraining the defendant no.2 from debiting the said amount on a prima facie satisfaction that reference of the dispute to arbitrator under Arbitration Rules of GAFTA is time barred having regard to the provisions contained in Clause 2.2(d) thereof for a limited period upto 9th Spetember, 2011. The defendant no.1 served with such ex parte order filed an application being G.A. No.2625 of 2011 for vacating the ad interim order of injunction dated August 10, 2011. Such vacating application was allowed and the injunction application was dismissed with the observation was that “any action taken by the parties to the suit during its pendency shall be subject to and abide by the result of the suit. 11. This observation has resulted in filing a cross appeal by the defendant no.1 on the ground that such observation is contrary to the provision relating to enforcement of foreign awards (in this case if an award is passed, it would be an English award) as contained in part II of Chapter 1 of the Arbitration and Conciliation Act and against the spirit of the said Act. 12. Mr. Surojit Nath Mitra, learned Counsel appearing on behalf of the petitioner submits that normally Civil Court has jurisdiction to entertain a dispute arising out of a contract. Only when there is an arbitration clause in such contract or when the parties to the contract enter into a separate arbitration agreement for referring their disputes to arbitration, the jurisdiction of the Civil Court being the natural forum is barred and such jurisdiction by reason of the agreement of the parties is vested in the arbitral tribunal. In respect of a contract which contains an arbitration agreement/clause, when dispute arises between the parties thereto, one of the parties, in breach of the contract, disregarding such arbitration agreement can still invoke the jurisdiction of the Civil Court being the natural forum. 13. In case of such breach of contract by one of the parties in not referring such disputes to arbitration and on the contrary, by invoking the jurisdiction of the Civil Court, the other party can compel enforcement of such agreement to refer the disputes to arbitration or can waive its right to refer the disputes to arbitration and submit to the jurisdiction of the Civil Court. 14. 14. Enforcement of such arbitration agreement can be made only by making an application for referring the parties to arbitration. In case of domestic arbitration, such application has to be made under Section 8 of the Arbitration and Conciliation Act, 1996 and in case of international commercial arbitration, such application has to be made under Section 45 of the said Act. 15. Unless such application for referring the parties to arbitration is made, the Civil Court being the natural forum continues to retain jurisdiction to proceed with, try and determine the civil suit. 16. In the instant case, no such application for referring the parties to arbitration has been made by the defendant no.1. It is also not the case of the defendant no.1 that this Hon’ble Court otherwise does not have jurisdiction to receive, try and entertain the instant suit. 17. Under the circumstances, this Hon’ble Court which otherwise had the jurisdiction to receive the above suit is entitled to continue with the hearing of the above suit on merits. Without an application made for referring the parties to arbitration, it cannot be contended that the suit is not maintainable. 18. Moreover, the suit filed by the appellant/plaintiff is a comprehensive action challenging the invocation of the purported arbitration clause contained in the contract dated October 25, 2010 and disputes the right of the defendant no.1 to claim or realize any money from the defendant no.2. 19. The relief claimed against the defendant no.1 in restraining the said defendant no.1 from realizing any amount from the defendant no.2 cannot be referred to arbitration. Such claim of the appellant/plaintiff is independent of such arbitration clause and not a dispute arising out of the contract dated 25th October, 2010 even if it is assumed that the said contract has been duly executed and enforceable. 20. Such claim of the appellant/plaintiff, since not covered by the arbitration clause/agreement, is required to be and has to be adjudicated by this Hon’ble Court being the natural forum. 21. The appellant/plaintiff has also claimed relief against the defendant no.2 as the defendant no.2 alleged to have wrongfully and illegally threatened to make payment to the defendant no.1 though the defendant no.2 has admitted that they are not liable to make any payment to the defendant no.1. 22. 21. The appellant/plaintiff has also claimed relief against the defendant no.2 as the defendant no.2 alleged to have wrongfully and illegally threatened to make payment to the defendant no.1 though the defendant no.2 has admitted that they are not liable to make any payment to the defendant no.1. 22. Since the defendant no.2 is not a party to the arbitration agreement, the appellant/plaintiff cannot claim such relief against the defendant no.2 in the arbitration proceeding. The entire disputes between the parties being the subject matter of the instant suit can only be decided in the instant comprehensive suit and not in an arbitration proceeding between the appellant/plaintiff and the defendant no.1. The defendant no.2 is a necessary and proper party for adjudication of the disputes between the parties to the suit. 23. Even when an application is made before a Civil Court for referring the parties to arbitration, the first thing, which the said Civil Court is required to consider is whether there is a valid and subsisting arbitration agreement between the parties. 24. In the instant case, the dispute arises for realization of the price of goods sold and delivered between the parties by the defendant No.1 to the appellant. 25. The documents annexed to the application before the lerned trial Court would show that such disputes arose on 22nd March, 2011 when the defendant no.1 in breach of contract initially demanded payment from the appellant/plaintiff and such demand was repeated on 3rd May, 2011, 4th May, 2011 and 27th May, 2011. 26. In the instant case, the defendant no.1 served a notice on the appellant/plaintiff on 28th July, 2011 expressing its intention to refer such disputes to arbitration in terms of GAFTA Arbitration Rules No.125. it is submitted that since the disputes between the parties arose on 22nd March, 2011, such disputes could not have been referred to arbitration on 28th July, 2011 as it is barred by limitation under the GAFTA Rules, 125. 27. The reference of the disputes to the arbitral tribunal at the behest of the defendant no.1 is bad and illegal as the reference of such disputes to arbitration is time barred having regard to the provisions contained in clause 2.2(d) of GAFTA 125. 27. The reference of the disputes to the arbitral tribunal at the behest of the defendant no.1 is bad and illegal as the reference of such disputes to arbitration is time barred having regard to the provisions contained in clause 2.2(d) of GAFTA 125. In the present case, the disputes between the parties fall under other disputes as mentioned in clause 2.2 of the GAFTA Arbitration Rules 125 and irrespective of the time limit mentioned in clauses (a), (b) and (c) of 2.2 in the event of non-payment of amounts, the claimant was required to serve a notice stating its intention to refer the dispute to arbitration not later than 60 days from the notice that a dispute has arisen as provided for in the payment clause of the contract. In the present case, the dispute at the instance of the defendant no.1 arose on 22nd March, 2011 and notice for arbitration was issued only on July 28, 2011 which was long after the time stipulated under the GAFTA Rules, 125. 28. The reliance on Clause 21 of GAFTA Arbitration Rules No.125 by the defendant no.1 is totally misplaced. The Arbitral Tribunal can exercise its discretion to extend the time and admit a claim provided the respondent before the Arbitral Tribunal raises such point of limitation before the Tribunal as a defence to the arbitration claim. In the instant case no Arbitral Tribunal in terms of Rule 3 of the said rules was constituted at the time when the instant suit was filed. The defendant No.1 had merely sought to appoint its arbitrator. There was no appointment of the arbitrator by the appellant/plaintiff nor a third arbitrator was or could be appointed. In any event, the question of the appellant/plaintiff raising such question of limitation as a defence to the arbitration claimed before any Arbitral Tribunal did not and could not arise. 29. Further if the GAFTA arbitration proceedings are conducted in London and if the appellant is compelled to participate in such proceedings, the same will lead to prohibitive costs to be incurred by the appellant and as such it will not be possible for the appellant/plaintiff to contest the arbitration proceeding. 30. 29. Further if the GAFTA arbitration proceedings are conducted in London and if the appellant is compelled to participate in such proceedings, the same will lead to prohibitive costs to be incurred by the appellant and as such it will not be possible for the appellant/plaintiff to contest the arbitration proceeding. 30. This Hon’ble Court is competent to pass orders as prayed for, if it appears to this Hon’ble Court that the acts of the defendant and particularly that of the defendant No.1 is bad and per se illegal. 31. Per contra, Mr. Tilak Kumar Bose, learned Senior Counsel appearing on behalf of the opposite party no.1 submits that having regard to the nature of the agreement which contains an arbitration clause inasmuch as the said contract containing the arbitration clause is not in dispute, the learned trial Judge was justified in vacating the ad interim ex parte order. The learned Senior Counsel, however, argued that in so far as the observation made that any action taken by the parties to the suit during its pendency shall be subject to and abide by the result of the suit is totally contrary to the spirit of the Arbitration and Conciliation Act, 1996 and was totally unnecessary in deciding the application filed by the defendant No.1 for vacating of the interim order. 32. The propriety and legality of the order passed by the learned single Judge in refusing to continue with the ex parte order of injunction is to be considered in the background of the aforesaid claims and counter-claims in keeping this fact in mind that the contract contains an arbitration clause. 33. The arbitrability of the dispute raised in the plaint is also required to be considered. 34. The contract giving rise to the filing of the said suit is the Contract No.LMJ/SIC/Oct/01 dated 25th October, 2011 entered into by and between the appellant and the respondent no.1 where the latter had agreed to supply certain quantity of rice of a particular specification for consideration. The said contract contains an arbitration clause which is reproduced hereunder:- “All disputes in connection with this contract or the execution thereof shall be settled amicably by friendly negotiation between the two parties. The said contract contains an arbitration clause which is reproduced hereunder:- “All disputes in connection with this contract or the execution thereof shall be settled amicably by friendly negotiation between the two parties. If no settlement can be reached, the case in dispute shall be submitted to GAFTA, London for arbitration as per GAFTA clause for rice and amendment, if any and Arbitration Rules 125.” This clause was preceded by a heading “Other Terms” which contains the following clause:- “Other Terms: All bank charges including amendment charges outside Thailand are on Buyer’s Account. Partial shipment ALLOWED. All export duties and/or taxes and/or levies present are for seller’s account. -all import duties and/or taxes and/or levies present and/or in future are for buyer’s account. -all other terms /conditions not in contradiction with the above as per GAFTA 48, Arbitration as per GAFTA 125 in London.” The GAFTA Arbitration Rules 125 lays down that the juridical seat of the arbitration shall be, and is hereby designated pursuant to Section 4 of the Arbitration Act, 1996 as England and the provisions of Arbitration Act, 1996 shall apply to such proceedings. Some of the relevant clauses of GAFTA, 125 are reproduced herein-below:- “1. PRELIMINARY 1.1 The provisions of the Arbitration Act, 1996, and of any statutory amendment, modification or re-enactment thereof for the time being in force, shall apply to every arbitration and/or appeal under these Rules save insofar as such provisions are expressly modified by, or are inconsistent with, these Rules. 1.2 The judicial seat of the arbitration shall be, and is hereby designated pursuant to section 4 of the Arbitration Act 1996 as, England. 2. PROCEDURE AND TIME LIMITS FOR CLAIMING ARBITRATION The claimant shall serve on the respondent a notice stating his intention to refer a dispute to arbitration within the following time limits. (The appointment of arbitrators shall be in accordance with Rule 3). 2.1 Disputes as to Quality and/or condition (a) In respect of disputes arising out of the “Rye Terms” clause not later than the 10th consecutive day after the date of completion of final discharge. (b) In respect of claims arising out of certificates of analysis in respect of which allowances are not fixed by the terms of the contract, not later than the 21st consecutive day after the date on which the claimant receives the final certificate of analysis. (b) In respect of claims arising out of certificates of analysis in respect of which allowances are not fixed by the terms of the contract, not later than the 21st consecutive day after the date on which the claimant receives the final certificate of analysis. (c) In respect of all other quality and/or condition disputes, not later than the 21st consecutive day after the date of completion of final discharge, or delivery, or the unstuffing of the container(s), as the case may be. 2.2 Other Disputes In respect of all other disputes relating to the sale of goods:- (c) on any other terms, not later than one year after the last day of the contractual delivery, collection or arrival period, as the case may be. (d) Irrespective of the time limits in (a), (b) and (c) above, in the event of non-payment of amounts payable, not later than 60 consecutive days from the notice that a dispute has arisen as provided for in the Payment Clause of the contract. 21. NON-COMPLIANCE WITH TIME LIMITS AND RULES If any time limit or provisions imposed by these Rules are not complied with, and when such matters are raised as a defence to the arbitration claim, then, subject only to the discretion of the tribunal or board of appeal conferred by this Rule, the claimant’s claims and/or appellant’s appeal as the case may be, shall be deemed to be waived and absolutely barred, except:- (a) where the tribunal may in its discretion admit a claim if satisfied that the circumstances were outside the reasonable contemplation of the parties when they entered into the contract and that it would be just to extend the time, or when the conduct of one party makes it unjust to hold the other party to the strict terms of the time limit in question. Otherwise the tribunal may determine that the claim is waived and barred and refuse to admit it. There shall be no appeal to the board of appeal against the decision of the tribunal to exercise its discretion to admit a claim. Otherwise the tribunal may determine that the claim is waived and barred and refuse to admit it. There shall be no appeal to the board of appeal against the decision of the tribunal to exercise its discretion to admit a claim. If a tribunal decides not to admit the claim, then the claimant shall have the right to appeal pursuant to Rule 10, and the board of appeal shall have the power in its absolute discretion to overturn that decision and to admit the claim; (b) upon appeal if any of the provisions of Rules 10 to 20 have not been complied with, then the board of appeal may, in its absolute discretion, extend the time for compliance (notwithstanding that the time may already have expired) or dispense with the necessity for compliance and may proceed to hear and determine the appeal as if each and all of those Rules had been complied with. Any decision made pursuant to this Rule shall be final, conclusive and binding.” 35. The appellant contended that the dispute between the parties arose on 22nd March, 2011 and, accordingly, such disputes could not have been referred to arbitration on 28th July, 2011. It was further contended that even otherwise the said reference is expressly barred by limitation since Clause 2.2 (d) in the event of non-payment of amounts payable, such notice is required to be issued no later than 60 consecutive days that a dispute has arisen as provided for in the Payment Clause of the contract. 36. It was argued that the dispute arose only on 1st June, 2011. 37. Moreover, the applicability of Clause 2.2(d) is not free from doubt. The contract in question is a F.O.B. Contract and Clause 2.2(b) specifies a one year time limit period and similar time limit period is also specified in Clause 2.2(c). In view thereof, it is contended that Clause 2.2(b) and 2.2(c) are exhaustive so far as the present dispute is concerned. Clause 2.2(d) relates to a situation over and above the one year time limit as specified in clauses 2.2(b) and 2.2(c). In view thereof, it is contended that Clause 2.2(b) and 2.2(c) are exhaustive so far as the present dispute is concerned. Clause 2.2(d) relates to a situation over and above the one year time limit as specified in clauses 2.2(b) and 2.2(c). Thus, for example, in a F.O.B. dispute may arise even after the specified one year time limit mentioned in clause 2.2(b) and 2.2(c), then and in such event, a party will get the advantage of an additional 60 days consecutive period from the notice that a dispute has arisen depending on the nature of the payment clause. Such construction has to be given harmonious meaning to clauses 2.2(b), 2.2(c) and 2.2(d). 38. The F.O.B. Contract contemplates that a seller must pay the cost and bear the responsibility of putting the goods “free on board” and that upon this being accomplished delivery is complete and the risk of the loss in the goods is then and there transferred to the buyer. 39. In Pyrene Co. Ltd. V. Schindia Navigation Co. Ltd. (1954 (2) Q.B. 402) Devlin J. described the f.o.b. contract as a “flexible instrument,” contrasting what he pronounced to be the “classic” type with more recent variants of this term, in the following manner:- “The f.o.b. contract has become a flexible instrument. In… the classic type….. for example in Wimble, Sons & Co. Ltd. v. Rosenber & Sons (1913(3) K.B. 743), the buyer’s duty is to nominate the ship, and the seller’s to put the goods on board for account of the buyer and procure a bill of lading in terms usual in the trade. In such a case the seller is directly a party to the contract of carriage at least until he takes out the bill of lading in the buyer’s name. Probably the classic type is based on the assumption that the ship nominated will be willing to load any goods brought down to the berth or at least those of which she is notified. Under present conditions, when space often has to be booked well in advance, the contract of carriage comes into existence at an earlier point of time. Sometimes the seller is asked to make the necessary arrangements; and the contract may then provide for his taking the bill of lading in his own name and obtaining payment against the transfer, as in a c.i.f. contract. Sometimes the seller is asked to make the necessary arrangements; and the contract may then provide for his taking the bill of lading in his own name and obtaining payment against the transfer, as in a c.i.f. contract. Sometimes the buyer engages his own forwarding agent at the port of loading to book space and to procure the bill of lading; if freight has to be paid in advance this method may be the most convenient. In such a case the seller discharges his duty by putting the goods on board, getting the mate’s receipt and handing it to the forwarding agent to enable him to obtain the bill of lading.” ( C.I.F. & F.O.B. Contracts, David M. Sassoon, 4th Edition) 40. In any event, the arbitral tribunal to be constitued under the GAFTA Rules would be required to consider the nature of the contract and if such claim is barred by limitation. Clause 21 clearly states that it is for the Tribunal to decide whether there has been non-compliance with time limits and Rules, and such objection can only be raised by way of defence. That apart, the Tribunal always has a power under Rule 21(a) to extend time. Whether or not clause 2.2(d) would apply in the facts of the case is for the Tribunal to decide on the basis of the materials and pleading to be placed before the Tribunal. 41. Mr. Surojit Mitra, learned Senior Counsel appearing on behalf of the petitioner submits that Clause 21 of the GAFTA Rules requires the Tribunal to decide the question of non-compliance only when such matters are raised as a defence to the arbitration claim. It is argued that unless a tribunal is duly constituted under the GAFTA Rules, the question of raising such defence cannot and does not arise. Moreover, the plea of Clause 21 cannot be raised at this stage in absence of an application being filed under Section 45 of the Arbitration and Conciliation Act, 1996. 42. Mr. Mitra further argued that the basis of the cross-appeal is Section 45 of the Arbitration and Conciliation Act. The fact remains that no application under Section 45 of the Arbitration and Conciliation Act was filed by the respondent No.1 although it was open for them to file such application. The said respondent No.1 having not filed the said application cannot maintain the cross-appeal. The fact remains that no application under Section 45 of the Arbitration and Conciliation Act was filed by the respondent No.1 although it was open for them to file such application. The said respondent No.1 having not filed the said application cannot maintain the cross-appeal. It is submitted that the argument made on behalf of the defendant No.1 that the suit is clearly not maintainable and required to be dismissed cannot be entertained in absence of any such application. In any event, the relief against the defendant No.2 cannot form the subject-matter of arbitration. It is argued that in the event, the defendant no.1 fails in obtaining a favourable order on an adjudication being made under Clause 21 of the GAFTA Rules and at the same time the suit is stayed the plaintiff would be rendered remediless. 43. We are only deciding the issue whether the learned single Judge was justified in vacating the interim order. In deciding an application for grant of an injunction, the relevant considerations would be whether the plaintiff has been able to make out prima facie case. In Thomas Walker Vs. Auber George Jones reported in (1865-69) 1-2 L.R.P.C. 50, it was held that in considering a prayer for injunction, the Court should have due regard as to whether the nature and difficulties of question is such that it would be proper that the injunction should be granted until the time for deciding the same should arrive. These are the additional considerations for not interfering with the order under challenge. 44. On the wholesome principles that the parties should be held to the terms which they have agreed, in absence of any coercion, fraud and misrepresentation and having arrived at a finding that such proceeding is not oppressive and unconscionable simply because it might entail some costs to be incurred by the plaintiff/appellant would not be a valid consideration to allow either of the parties to resile from the agreed procedure for settlement of their disputes. 45. Mr. 45. Mr. Tilak Kumar Bose referred to Paragraph 179 of a Constitution Bench Judgment in Bharat Aluminium in order to justify that since the interim injunction cannot be granted, there would be no real cause of action for the plaintiff to continue with the suit and in such a situation, it should be held that the plaint does not disclose a cause of action within the meaning of Order 7 Rule 11(a) of the Code of Civil Procedure and, accordingly, we should dismiss the suit. 46. We are also of the view that once the parties with their eyes wide open have entered into the said contract containing an arbitration clause which made a specific reference to the GAFTA Rules, 125, all matters and questions arising out of the said agreement including interpretation thereof including whether claim is time barred exclusively falls within the jurisdiction of such Tribunal. Such issues are to be decided only by arbitral tribunal constituted under the GAFTA Rules, 125. 47. Mr. Surojit Mitra, learned Senior Counsel appearing on behalf of the petitioner submits that in absence of an application being filed under Section 45 of the Arbitration and Conciliation Act, 1996, the attempted initiation of the arbitration proceeding by the respondent No.1 should be stalled. In any event, this Court cannot interfere with the last sentence of the impugned order by which the learned single Judge observed that “any action taken by the parties to the suit during its pendency shall be subject to and abide by the result of the suit”. Mr. Bose, the learned Senior Advocate, however, would submit that since a reference has already been made under GAFTA Rules, 125, there is no requirement to file any application under Section 45 of the Arbitration and Conciliation Act, 1996. 48. This observation of the learned single Judge has given rise to the cross-appeal being preferred by the respondent. Mr. Bose, the learned Senior Advocate, however, would submit that since a reference has already been made under GAFTA Rules, 125, there is no requirement to file any application under Section 45 of the Arbitration and Conciliation Act, 1996. 48. This observation of the learned single Judge has given rise to the cross-appeal being preferred by the respondent. The learned Counsel appearing on behalf of the opposite parties submits that such observation of the learned single Judge is totally contrast to the spirit of 1996 Act since in such a situation where the parties have agreed to submit to a foreign arbitral tribunal and expressly agreed that the provisions of the English Arbitration Act, 1996 (UK) shall apply to such arbitration proceedings both the curial law and the substantive law would be that of England, namely, the English Arbitration Act, and any challenge to such award or any other procedural matters are required to be filed before the English Court and Indian Courts have not jurisdiction. In this regard, Mr. Bose has referred to Section 2 and Section 4 of the Arbitration & Conciliation Act, 1996. Sections 2 and Schedule I is referred to in Section 4 of the said Act are reproduced herein-below:- “2. Scope of application of provisions. – (1) The provisions of this Part apply where the seat of the arbitration is in England and Wales or Northern Ireland. (2) The following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined- (a) sections 9 to 11 (stay of legal proceedings, & c.), and (b) section 66 (enforcement of arbitral awards). (3) The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined- (a) section 43 (securing the attendance of witnesses); and (b) section 44 (Court powers exercisable in support of arbitral proceedings); but the Court may refuse to exercise any such power if, in the opinion of the Court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so. (4) The Court may exercise a power conferred by any provision of this Part not mentioned in sub-section (2) or (3) for the purpose of supporting the arbitral process where- (a) no seat of the arbitration has been designated or determined, and (b) by reason of a connection with England and Wales or Northern Ireland the Court is satisfied that it is appropriate to do so. (5) Section 7 (reparability of arbitration agreement) and section 8 (death of a party) apply where the law applicable to the arbitration agreement is the law of England and Wales or Northern Ireland even if the seat of the arbitration is outside England and Wales or Northern Ireland or has not been designated or determined. 4. Mandatory and non-mandatory provisions. – (1) The mandatory provisions of this Part are listed in Schedule I and have effect notwithstanding any agreement to the contrary. (2) The other provisions of this Part (the “non-mandatory provisions”) allow the parties to make their own arrangements by agreement but provide rules which apply in the absence of such agreement. (3) The parties may make such arrangements by agreeing to the application of institutional rules or providing any other means by which a matter may be decided. (4) It is immaterial whether or not the law applicable to the parties’ agreement is the law of England and Wales or, as the case may be, Northern Ireland. (5) The choice of a law other than the law of England and Wales or Northern Ireland as the applicable law in respect of a matter provided for by a non-mandatory provision of this Part is equivalent to an agreement making provision about that matter. For this purpose an applicable law determined in accordance with the parties’ agreement, or which is objectively determined in the absence of any express or implied choice, shall be treated as chosen by the parties.” 49. The GAFTA Rules, 125 specify that apart from judicial seat of arbitration being in London, the law of arbitration would be the English Arbitration Act, 1996. The resulting award would, therefore, surely be an English award and a Foreign New York Convention award within the meaning of Section 44 of the Arbitration and Conciliation Act, 1996. The GAFTA Rules, 125 specify that apart from judicial seat of arbitration being in London, the law of arbitration would be the English Arbitration Act, 1996. The resulting award would, therefore, surely be an English award and a Foreign New York Convention award within the meaning of Section 44 of the Arbitration and Conciliation Act, 1996. In the case of such Foreign Awards falling under Part II of Arbitration and Conciliation Act, 1996, Section 48(e) contemplates that challenge mechanism can only be at the country where award was passed, namely, United Kingdom. There is, therefore, no possibility of the English award being made subject to a pending Indian Suit. If and only if, such foreign award is sought to be enforced in India, would the Indian Courts have jurisdiction and not otherwise. 50. The parties by agreeing to GAFTA Rules and the English Arbitration Act agreed to be bound by all provisions of the English Arbitration Act, 1996. The disputes in the instant suit are all covered under Sections 31 and 32 of the English Arbitration Act, 1996, and, therefore, remedy, if any, of the plaintiff should have been in accordance with sections 31 and 32. This remedy not having been exhausted, no civil suit or application could have been filed and the impugned order also could not have been passed. 51. That apart, it is now quite well-settled that in Foreign Arbitration, Court should not interfere. It is always open to the plaintiff/appellant to raise challenges once a final award is passed and when the respondent No.1 would enforce such foreign award in India. This is available only as a shield and not as a sword, because section 45 or 48 of Part-II of the Arbitration and Conciliation Act, 1996 does not contemplate filing a pre-emptive application. 52. The parties have expressly agreed to be bound by the Arbitration Act, 1996 by GAFTA Arbitration Rules, 125 and any ground of challenge with regard to the applicability of Clause 2.2 is an issue which is to be decided by the arbitral tribunal or the English Court by virtue of Section 31 and 32 of the English Arbitration Act, 1996. We may refer to the decision of the Hon’ble Supreme Court reported in Yograj Infrastructure Ltd. vs. Ssang Yong Engineering & Construction Co. We may refer to the decision of the Hon’ble Supreme Court reported in Yograj Infrastructure Ltd. vs. Ssang Yong Engineering & Construction Co. Ltd. reported in 2011 (9) SCC 735 in which it is held that in absence of any stipulation, the arbitration clause as to which law would apply to arbitral proceedings in connection with international commercial arbitration outside India, the Governing Contract (proper contract) would be the law applicable to arbitral tribunal. The seat of arbitration in foreign country does not automatically exclude all foreign arbitral proceedings or awards from the purview of 1996 Act unless the parties have specifically agreed to exclude the same. In construing Clause 27.1 of the Agreement and Rule 32 of the SIAC Rules it was held that curial and proper law of arbitration was Singapore law and the proper law of contract was Indian law. 53. Similarly, in Videocon Industries Ltd. Vs. Union of India & Anr. reported in 2011(6) SCC 161 it was held that once the parties have agreed that the arbitration agreement shall be governed by the laws of England, it necessarily implies that the parties have agreed to exclude the provision of Part 1 of the Act. In paragraph 31 of the said report, the Hon’ble Supreme upheld the view expressed by the learned single Judge of the Gujarat High Court in Hardy’s case in which the learned single Judge of the Gujarat High Court referred to paragraph 32 of the judgement in Bhatia International v. Bulk Trading S.A. reported in 2002 (4) SCC 105 which is reproduced hereunder:- “31. The learned Single Judge of the Gujarat High Court in Hardy Case (2006(1) Guj LR 658) referred to para 32 of the judgment in Bhatia international v. Bulk Trading S.A. ( 2002(4) SCC 105 ) and observed that once the parties had agreed to be governed by any law other than Indian law in cases of international commercial arbitration, then that law would prevail and the provisions of the Act cannot be invoked questioning the arbitration proceedings or the award. This is evident from para 11.3 of the judgment, which is extracted below: (Hardy Case, Guj LR p.663) “11.3. However, Their Lordships observed in para 32 that in cases of international commercial arbitration held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. This is evident from para 11.3 of the judgment, which is extracted below: (Hardy Case, Guj LR p.663) “11.3. However, Their Lordships observed in para 32 that in cases of international commercial arbitration held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case laws or unless chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules would not apply. Thus, even as per the decision relied upon by the learned advocate for the appellant, if the parties have agreed to be governed by any law other than Indian law in cases of international commercial arbitration, same would prevail. In the case on hand, it is very clear even on plain reading of Clause 9.5.4 that the parties’ intention was to be governed by English law in respect of arbitration. It is not possible to give a narrow meaning to this clause as suggested by learned Senior Advocate Mr Thakore that it would apply only in case of dispute on arbitration agreement. It can be interpreted only to mean that in case of any dispute regarding arbitration, English law would apply. When the clause deals with the place and language of arbitration with a specific provision that the law governing arbitration will be the English law, such a narrow meaning cannot be given. No other view is possible in light of exception carved out of Clause 9.5.1 relating to arbitration. Term ‘arbitration, in Clause 9.5.4 cannot be taken to mean arbitration agreement. Entire arbitral proceedings have to be taken to be agreed to be governed by English law.” 32. In our opinion, the learned Single Judge of the Gujarat High Court had rightly followed the conclusion recorded by the three-Judge Bench in Bhatia International v. Bulk Trading S.A. ( 2002 (4) SCC 105 ) and held that the District Court, Vadodara did not have the jurisdiction to entertain the petition filed under Section 9 of the Act because the parties had agreed that the law governing the arbitration will be English law.” 54. In view of the conflicting views of the Hon’ble Supreme Court in relation to the applicability of Sections 9 and 34 in connection with the International Arbitration Agreement, the matter was referred to the Constitutional Bench and the Constitutional Bench recently have delivered a judgment which has been placed before us by Mr. Tilak Kumar Bose, the learned Senior Counsel appearing on behalf of the respondent No.1 in Civil Appeal No.7019 of 2005 dated 6th September, 2005 (Bharat Aluminium Co. Vs. Kaiser Aluminium Technical Service, Inc.) 55. In the said judgment, the Hon’ble Supreme Court was considering Articles 17 and 22 which are reproduced hereinbelow:- “Article 17.1 – Any dispute or claim arising out of or relating to this Agreement shall be in the first instance, endeavour to be settled amicably by negotiation between the parties hereto and failing which the same will be settled by arbitration pursuant to the English Arbitration Law and subsequent amendments thereto. Article 17.2 – The arbitration proceedings shall be carried out by two Arbitrators one appointed by BALCO and one by KATSI chosen freely and without any bias. The Court of Arbitration shall be held wholly in London, England and shall use English language in the proceeding. The findings and award of the Court of Arbitration shall be final and binding upon the parties. Article 22 – Governing Law – This agreement will be governed by the prevailing law of India and in case of Arbitration, the English law shall apply.” 56. The Hon’ble Supreme Court in Paragraph 37 considered the international scenario and the reasons and object of the Arbitration Act and Conciliation Act, 1996. After dealing with the object of the Arbitration Act, 1996, the Hon’ble Supreme Court made the following observations:- “92. We agree with Mr. Salve that Part I only applies when the seat of arbitration is in India, irrespective of the kind of arbitration. Section 2(7) does not indicate that Part I is applicable to arbitrations held outside India. 93. We are, therefore, of the opinion that Section 2(7) does not alter the proposition that Part I applies only where the “seat” or “place” of the arbitration is in India. 122. Section 2(7) does not indicate that Part I is applicable to arbitrations held outside India. 93. We are, therefore, of the opinion that Section 2(7) does not alter the proposition that Part I applies only where the “seat” or “place” of the arbitration is in India. 122. It would, therefore, follow that if the arbitration agreement is found or held to provide for a seat/place of arbitration outside India, then the provision that the Arbitration Act, 1996 would govern the arbitration proceedings, would not make Part I of the Arbitration Act, 1996 applicable or enable Indian Courts to exercise supervisory jurisdiction over the arbitration or the award. It would only mean that the parties have contractually imported from the Arbitration Act, 1996, those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the English Procedural Law/Curial Law. This necessarily follows from the fact that Part I applies only to arbitrations having their set/place in India. 125. We are unable to agree with the submission of the learned senior Counsel that there is any overlapping of the provisions in Part I and Part II; nor are the provisions in Part II supplementary to Part I. Rather there is complete segregation between the two parts. 130. We are unable to accept the submission that the use of expression “notwithstanding anything contained in Part I, or in the Code of Civil Procedure, 1908, in Section 45 of the Arbitration Act, 1996 necessarily indicates that provisions of Part I would apply to foreign seated arbitration proceedings. Section 45 falls within Part II which deals with enforcement proceedings in India and does not deal with the challenge to the validity of the arbitral awards rendered outside India. Section 45 empowers a judicial authority to refer the parties to arbitration, on the request made by a party, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44. It appears that inclusion of the term “judicial authority” in Sections 5 and 8 of the Arbitration Act, 1996, has caused much confusion in the minds of the learned counsel for the appellants. In our opinion, there is no justification for such confusion. It appears that inclusion of the term “judicial authority” in Sections 5 and 8 of the Arbitration Act, 1996, has caused much confusion in the minds of the learned counsel for the appellants. In our opinion, there is no justification for such confusion. Such use of the term “judicial authority”, in Section 5 and Section 8 of the Arbitration Act, 1996, is not a recognition by the Parliament that Part I will apply to international commercial arbitrations held outside India. The term “judicial authority” is a legacy from the 1940 Act. The corresponding provision of Section 34 of the 1940 Act, which covered purely domestic arbitrations, between two or more Indian parties, within the territory of India, also refers to “judicial authority”. It is nobody’s contention that by using the term “judicial authority”, the Parliament had intended the 1940 Act to apply outside India. In our opinion, the term “judicial authority” has been retained especially in view of policy of least intervention, which cannot be limited only to the Courts. This is clearly in recognition of the phenomenon that the judicial control of commercial disputes is no longer in the exclusive jurisdiction of Courts. There are many statutory bodies, tribunals which would have adjudicatory jurisdiction in very complex commercial matters. Section 5 would be equally applicable to such bodies. The use of the term “judicial authority” in no manner has any reference to arbitrations not held in India. It is in conformity with Clause (V) of the objects and reasons for the Arbitration Act, 1996, which has been given statutory recognition in Section 5. 139. As noticed above, this section corresponds to Article V(1)(e) of the New York Convention. A reading of the Article V(1)(e) [Section 48(1)(e)] makes it clear that only the Courts in the country “in which the award was made” and the courts “under the law of which the award was made” (hereinafter referred to as the “first alternative” and the “second alternative” respectively) would be competent to suspend/annul the New York Convention awards. It is clarified that Section 48(1)(3) is only one of the defences on the basis of which recognition and enforcement of the award may be refused. It has no relevance to the determination of the issue as to whether the national law of a country confers upon its courts, the jurisdiction to annul the awards made outside the country. It is clarified that Section 48(1)(3) is only one of the defences on the basis of which recognition and enforcement of the award may be refused. It has no relevance to the determination of the issue as to whether the national law of a country confers upon its courts, the jurisdiction to annul the awards made outside the country. Therefore, the word “suspended/set aside” in Section 48(1)(e) cannot be interpreted to mean that, by necessary implication, the foreign awards sought to be enforced in India can also be challenged on merits in Indian Courts. The provision only means that Indian Courts would recognize as a valid defence in the enforcement proceedings relating to a foreign award, if the Court is satisfied that the award has been set aside in one of the two countries, i.e., the “first alternative” or the “second alternative”. 176. It appears to us that as a matter of law, an inter-parte suit simply for interim relief pending arbitrations, even if it be limited for the purpose of restraining dissipation of assets would not be maintainable. There would be number of hurdles which the plaintiff would have to cross, which may well prove to be insurmountable. 179. In our opinion, pendency of the arbitration proceedings outside India would not provide a cause of action for a suit where the main prayer is for injunction. Mr. Sundaram has rightly pointed out that the entire suit would be based on the pendency of arbitration proceedings in a foreign country. Therefore, it would not be open to a party to file a suit touching on the merits of the arbitration. If such a suit was to be filed, it would in all probabilities be stayed in view of Sections 8 and 45 of the Arbitration Act, 1996. It must also be noticed that such a suit, if at all, can only be framed as a suit to “inter alia restrain the defendant from parting with property.” Now, if the right to such property could possibly arise, only if the future arbitration award could possibly be in favour of the plaintiff, no suit for a declaration could obviously be filed, based purely only on such a contingency. All that could then be filed would, therefore, be a bare suit for injunction restraining the other party from parting with property. The interlocutory relief would also be identical. All that could then be filed would, therefore, be a bare suit for injunction restraining the other party from parting with property. The interlocutory relief would also be identical. In our view, such a suit would not be maintainable, because an interlocutory injunction can only be granted during the pendency of a civil suit claiming a relief which is like to result in a final decision upon the subject in dispute. The suit would be maintainable only on the existence of a cause of action, which would entitle the plaintiff for the substantive relief claimed in the suit. The interim injunction itself must be a part of the substantive relief to which the plaintiff’s cause of action entitled him. In our opinion, most of the aforesaid ingredients are missing in a suit claiming injunction restraining a party from dealing with the assets during the pendency of arbitration proceedings outside India. Since the dispute is to be decided by the Arbitrator, no substantive relief concerning the merits of the arbitration could be claimed in the suit. The only relief that could be asked for would be to safeguard the property which the plaintiff may or may not be entitled to proceed against. In fact, the plaintiff’s only claim would depend on the outcome of the arbitration proceeding in a foreign country over which the courts in India would have no jurisdiction. The cause of action would clearly be contingent/speculative. There would be no existing cause of action. The plaint itself would be liable to be rejected under Order VII Rule 11(a). In any event, as noticed above, no interim relief could be granted unless it is in aid of an ancillary to the main relief that may be available to a party on final determination of rights in a suit. This view will find support from a number of judgments of this Court.” 57. Mr. Bose has relied upon the following decisions for the proposition that the Civil Court would not pass an order of injunction to stay an arbitration proceeding: (a) 2012 (5) SCC 214 (Kvaerner Cementation India Ltd. Vs. Bajranglal Agarwal & Anr.); (b) 2010 (3) Mh.L.J 165 (JSW Steel Ltd. Vs. JFE Shoji Trade Corporation & Anr.) 58. The intention of the parties to have their disputes resolved by arbitration cannot be doubted. The parties have entered into such contract with their eyes wide open. Bajranglal Agarwal & Anr.); (b) 2010 (3) Mh.L.J 165 (JSW Steel Ltd. Vs. JFE Shoji Trade Corporation & Anr.) 58. The intention of the parties to have their disputes resolved by arbitration cannot be doubted. The parties have entered into such contract with their eyes wide open. They have decided that all disputes are to be resolved, adjudicated and decided by arbitral tribunal to be constituted under the GAFTA Rules. The principal ground for avoiding the said Tribunal is of forum inconvenience. The additional grounds appeared to be that there is no agreement between the plaintiff and the defendant to refer any dispute arising out the said contract to arbitration either as per GAFTA Rules, 125 in London or otherwise. In deciding the said issue, the reference is required to be made to the contract containing such arbitration clause. There cannot be any dispute that the obligation to make payment or avoidance of any such payment is arising out of a transaction covered by the contract which contains the arbitration the arbitration clause. The principal ground of forum inconvenience does not apply to civil suits in India which are governed by the Code of Civil Procedure in view of the specific bar created by Section 41(b) of the Specific Relief Act. However, the doctrine of anticipatory injunction which is very often now being applied in resisting a proceeding before a foreign court or tribunal on the ground that since the courts in India like the Courts in England are courts of both law and equity and thus, all equitable principle the Court in India may grant an order of injunction restraining a party from proceeding before any foreign court or forum. However, this doctrine has to be applied with care and caution as it involves the issue of respect for corresponding another international forum. Although in this case, it is a proceeding before an arbitral tribunal but the same principle is to be applied in which the tests are that the Court in the domestic forum may grant an ad interim order of injunction to avoid injustice or if the foreign proceedings are found to be oppressive or vexatious or to put it simply “in the ends of justice”. 59. In Modi Entertainment Network & Anr. v. W.S.G. Cricket Pte. 59. In Modi Entertainment Network & Anr. v. W.S.G. Cricket Pte. Ltd. reported in AIR 2003 SC 1177 it was held that where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum convenience and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated just an alternative forum. 60. The Hon’ble Supreme Court laid down principles governing anti-suit injunction in Paragraph 23 of the said report which is reproduced herein-below:- “1. In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:- (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity – respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained – must be borne in mind; 2. In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non-conveniens; 3. Where a jurisdiction of a Court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or nonexclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case; 4. A court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date fo the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like; 5. Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated just an alternative forum; 6. A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non-conveniens; 7. The burden of establishing that the forum of the choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.” 61. In an earlier judgment, the Hon’ble Supreme Court in Oil and Natural Gas Commission v. Western Company of North America reported in 1987(1) SCC 496 which possibly was the first case where the Hon’ble Supreme Court in exercising jurisdiction under Section 151 of the Code of Civil Procedure granted anti-suit injunction. 62. In an earlier judgment, the Hon’ble Supreme Court in Oil and Natural Gas Commission v. Western Company of North America reported in 1987(1) SCC 496 which possibly was the first case where the Hon’ble Supreme Court in exercising jurisdiction under Section 151 of the Code of Civil Procedure granted anti-suit injunction. 62. In Albon v. Naza Motor Trading Sdn Bhd reported in 2008(1) Lloyd’s Law Reports, the court of appeal in considering a case of anti-arbitration injunction observed that if it appears that the agreement to arbitrate has been forged in order to defeat proceedings properly brought in Civil Court (England), the autonomy of the arbitrators can be undermined. In paragraph 7 of the said report it was held that a party will not be restrained from instituting or continuing foreign proceedings unless the applicant can show that to do so would be oppressive and vexatious or (as it sometimes said) unconscionable. Paragraph 7 of the said report is reproduced hereinbelow:- “7. These submissions derive from the well-known principle that a party will not be restrained from instituting or continuing foreign proceedings unless the applicant can show that to do so would be oppressive and vexatious or (as it is sometimes said) unconscionable. A recent enunciation of the principle is contained in the judgment of Rix LJ in the Metro litigation. Glencore International AG v. Exter Shipping Ltd (2003 (2) All ER Comm 1 at paras 42 and 43 where he said that: (i) the defendant must be amenable to English territorial and personal jurisdiction; (ii) jurisdiction to grant an injunction in cases in which it is “just and convenient to do so” is then provided by Section 37 of the Supreme Court Act, 1981. (iii) It will not be just and convenient unless; (a) the threatened conduct is “unconscionable” which primarily means it must be conduct which is oppressive or vexatious or which interferes with the due process of the court; (b) the jurisdiction is necessary to protect the applicant’s legitimate interest in proceedings in England which must be the natural forum for the litigation. Rix LJ then said that while these are conditions for the grant of an anti-suit injunction (and in that sense may be said to go to jurisdiction), these considerations are again relevant when the court comes to exercise its discretion. Rix LJ then said that while these are conditions for the grant of an anti-suit injunction (and in that sense may be said to go to jurisdiction), these considerations are again relevant when the court comes to exercise its discretion. I would, however, myself prefer to say that the conditions set out in (iii) above do not, strictly speaking, go to jurisdiction. They are requirements of the exercise of a jurisdiction that the court already has. This is, however, purely a matter of nomenclature and I have no doubt that, while Rix LJ confined his permission to appeal in the present case to the question of jurisdiction and refused permission to appeal against the judge’s discretion, he intended there to be full argument as to the principles on which the judge exercised his jurisdiction.” 63. In the instant case, there is no dispute that the said contract containing arbitration clause has been validly and duly executed by the parties. 64. In Kvaerner Cementation (supra) the Hon’ble Supreme Court declined to stay the arbitration proceeding in view of Section 16 of the Arbitration and Conciliation Act which permits the arbitral tribunal to rule on its own jurisdiction. The Hon’ble Supreme Court has also taken into consideration the object of the Arbitration and Conciliation Act, 1996. 65. In JSW (supra) it was found that the defendant No.1 had already instituted an arbitral proceeding before the international chambers of commerce, international court of arbitration, London and such proceedings commenced prior to the institution of the suit. Both the contesting parties nominated their arbitrators and only the Presiding arbitrator was nominated. At this stage, a suit was filed by plaintiff with a prayer that the defendant No.1 may be restrained their proceeding with the arbitration proceeding at London. The learned trial Judge dismissed the said application on the ground that no exceptional case was made out for granting an anti-suit injunction in favour of the plaintiff. In affirming the said order, the Hon’ble Division Bench of the Bombay High Court following the principles laid down in Modi Entertainment (supra) held that no exceptional case was made out for granting such an anti-suit injunction in favour of the plaintiff. 66. Both the parties have made argument with the presence of the defendant No.2 in the suit. Mr. In affirming the said order, the Hon’ble Division Bench of the Bombay High Court following the principles laid down in Modi Entertainment (supra) held that no exceptional case was made out for granting such an anti-suit injunction in favour of the plaintiff. 66. Both the parties have made argument with the presence of the defendant No.2 in the suit. Mr. Tilak Kumar Bose, the learned Senior Counsel contended that the presence of the defendant No.2 is wholly unnecessary and introduced with a view to circumvent the arbitration clause. Mr. Surojit Mitra, learned senior Counsel appearing on behalf of the plaintiff submits that the cause of action against the defendant no.2 threatening to debit the account of the plaintiff to the extent of 10% of the invoice value and remit the amount to the plaintiff. 67. At this stage, we are not required to decide on the ponderables and imponderables of the claims and justification for impleading the defendant No.2 in the suit. 68. Since we have taken a view that interim order of injunction cannot be passed in view of the reasons given by us in the earlier paragraphs of this judgment, we are not required to decide the necessity and justification of impleading defendant No.2 in the suit. The impact of the arbitration on the suit or vice-versa at this stage is also not required to be gone into and it would all depend upon the progress of both the matters. 69. In view of the aforesaid, it cannot be said that the proceeding under the GAFTA Rules would be oppressive or vexatious. The ground to resist the said arbitration is that it involves prohibitive costs. The appellant was not compelled to execute the said agreement. The appellant precisely knew at the time of execution of the contract that in the event of any dispute arising out of the said contract, it would be governed by the GAFTA Arbitration Rules, 125. In absence of any demonstrable injustice or harassment being caused by reason of initiation of the arbitral proceedings or participation in such proceeding and having regard to the fact that the agreement is not in dispute, in our view, the plaintiff is not entitled to an order of injunction. The learned judge, in our view, was justified in vacating the interim order and dismissing the inter locutory application filed by the plaintiff. 70. The learned judge, in our view, was justified in vacating the interim order and dismissing the inter locutory application filed by the plaintiff. 70. The appeal fails, the cross-objection is also dismissed. However, there shall be no order as to costs. I agree.