JUDGMENT 1. The applicant established a Steel Plant in Andhra Pradesh and entered into an agreement on 7.8.2008 with a company by name Goyal MG Gases Private Limited, for the supply of Oxygen and Nitrogen Gases. Under the said agreement, the applicant was obliged to provide a land on lease to Goyal MG Gases Private Limited, to enable them to design, build, commission and operate a 100 TPD Oxygen Capacity Production Facility and Storage System, by setting up an Air Separation Plant. It was intended that the gas generated from this Air Separation Plant would be supplied by Goyal MG Gases P. Ltd., to the applicant. 2. To enable them to set up the plant, Goyal MG Gases Private Limited appears to have obtained the sanction of a term loan of Rs.30 crores from the Punjab National Bank. It is relevant to note here that in order to enable Goyal MG Gases to repay their loan to the Bank duly and promptly, the agreement dated 7-8-2008 provided for a minimum off take of gas by the applicant, failing which the applicant was obliged to pay the price of such minimum quantity of gas. The sanction of the said loan by Punjab National Bank was on the condition that Goyal MG Gases Private Limited should obtain post dated cheques from the applicant herein towards the cost of supply of gases and deposit the same with the Bank. The post dated cheques were to be for the value of the minimum off take. Therefore, for the purpose of bringing on record the mutual rights and obligations, a tripartite agreement was entered into on 25.5.2009 between Goyal MG Gases Private Limited, the applicant herein and the Punjab National Bank. Under the said agreement, the applicant herein agreed to give 60 post dated cheques of Rs.35 lakhs each. 3. A further agreement known as Escrow Account Agreement was also entered into on 25.5.2009 between all the three parties, for the purpose of enabling the borrower viz., Goyal MG Gases Private Limited to open an escrow account and deposit into the account, all the amounts collected by them. The applicant herein acted as the confirming party to the said agreement. 4. Pursuant to the above agreements, Goyal MG Gases Private Limited also obtained an exclusive license on 22.4.2009 from the concerned Authority. The applicant herein acted as the confirming party to the said agreement. 4. Pursuant to the above agreements, Goyal MG Gases Private Limited also obtained an exclusive license on 22.4.2009 from the concerned Authority. But, unfortunately, the applicant went into difficulties in view of the ban of mining activities in several States. This led to disputes between the applicant and Goyal MG Gases Private Limited. 5. Since the agreements contained a clause for the arbitration, Goyal MG Gases Private Limited filed an application on the file of the Delhi High Court under Section 9 of the Arbitration and Conciliation Act, 1996, seeking an interim order of injunction. By an order dated 26.3.2012, the Delhi High Court granted an interim order in favour of Goyal MG Gases Private Limited, restraining the applicant herein from taking the supply of Oxygen and Nitrogen Gases from any supplier other than Goyal MG Gases Private Limited. The statement that Goyal MG Gases Private Limited will continue to supply gases as per the terms of the agreement and also maintain the pressure of gases, was also recorded in the said order. 6. Thereafter, the dispute between the parties appears to have been referred to an Arbitral Tribunal comprising of Hon'ble Mr. Justice A.S.Anand (Retd.), Hon'ble Mr. Justice Doraiswamy Raju (Retd.) and Hon'ble Mr. Justice R.C.Chopra. 7. During the pendency of the arbitration proceedings, the applicant herein filed an application under Section 9 of the Act, before this Court seeking an interim order of injunction restraining the Goyal MG Gases Private Limited from presenting 33 postdated cheques given by them, till the disposal of the arbitration proceedings. But the said application was dismissed by this Court, on the basis of Section 42 of the Arbitration and Conciliation Act, 1996, in view of the Delhi High Court entertaining the first application under Section 9. 8. It appears that after the dismissal of the application of the applicant under Section 9, by this Court, negotiations took place between the parties and a fresh contract was entered into on 17.4.2013. To the said contract, there were only two parties. The applicant herein was one party and it was described as the buyer. The second party to the agreement, referred to as the "Seller", was described as "Goyal Gases Private Limited (formerly known as Goyal MG Gases Private Limited)". To the said contract, there were only two parties. The applicant herein was one party and it was described as the buyer. The second party to the agreement, referred to as the "Seller", was described as "Goyal Gases Private Limited (formerly known as Goyal MG Gases Private Limited)". However, the address of the Registered Office as well as the Corporate Office of Goyal Gases Private Limited, was indicated as the same as those of Goyal MG Gases Private Limited. Similarly, this agreement dated 17.4.2013 was signed on behalf of Goyal Gases Private Limited, by one Mr.K.K.Dhar, whose designation was indicated as DGM (Business Development). It was the very same person who signed the first contract dated 7.8.2008 on behalf of Goyal MG Gases P Ltd., describing himself to be its Authorised Signatory. 9. However, in the tripartite agreement, the Managing Director of Goyal MG Gases Private Limited signed on behalf of the company. 10. After the execution of the new contract, Goyal Gases Private Limited, which is the respondent herein, sent a letter dated 21.5.2013 to the applicant, stating that Goyal Gases Private Limited is not the successor in interest of Goyal MG Gases Private Limited and that both are distinct and different entities. Interestingly, the said letter dated 21.5.2013 was also signed only by Mr.K.K.Dhar, describing himself as the Authorised Signatory of Goyal Gases Private Limited. It was claimed in the said letter that Goyal MG Gases Private Limited is not a party to the aforesaid contract dated 17.4.2013 and that they have no privity of contract either with Goyal Gases Private Limited or with the applicant herein in respect of the contract. 11. When the applicant attempted to communicate with the respondent, about certain issues relating to the cheques issued to Goyal MG Gases Private Limited, the respondent again communicated to the applicant, by a letter dated 24.4.2013 that Goyal MG Gases Private Limited and the respondent are two separate legal entities. Though it was also pointed out in the said correspondence that the applicant had commissioned a 10 MW Power Generation of its Captive Power Plant and additional capacity is under commissioning and that the respondent could proceed with its work, the respondent informed the applicant that they will not be able to commission its SMS Plant with only 10 MW power. The correspondence between the parties also revolved around the question as to whether the obligations on both sides were complied with or not. 12. In view of the letters dated 10.7.2013, the respondent requested the applicant to finally sort out the ambiguity in the material terms of the contract dated 17.4.2013, in view of the fact that the respondent is a distinct and separate entity than Goyal MG Gases Private Limited. Again by a letter dated 5.8.2013, the respondent insisted that the discrepancy with regard to the identity between the respondent and Goyal MG Gases Private Limited had to be resolved. As a matter of fact, the respondent sent a draft addendum to the contract dated 17.4.2013, where the respondent agreed to include Goyal MG Gases Private Limited as a third party to the contract. The proposed addendum also contained an article for assignment of the rights and obligations of the seller viz., the respondent herein, to any of its subsidiaries, group companies and affiliates, without the consent of the applicant herein. The applicant provisionally agreed to the proposed amendment, subject to certain changes, as seen from their e-mail dated 17.8.2013. The parties attempted to have an addendum signed on 28.6.2013 by including Goyal MG Gases Private Limited also as a party and incorporating certain changes. But it did not fructify. 13. Therefore, by a letter dated 3.10.2013, the respondent informed the applicant that unless this fundamental threshold issue was conclusively resolved, they could not commit themselves any further in the matter. But even while doing so, the respondent took a plea that independent of the issue of identity of the contracting party, the lease of the land and civil works had not been executed as per the contract dated 17.4.2013. The respondent also demanded the payment due under the contract, towards minimum take off. Therefore, apprehending that the postdated cheques handed over to them under the contract dated 17.4.2013 may be presented for payment, the applicant has come up with the above application under Section 9. 14. I have heard Mr.S.R.Raghunathan, learned counsel for the applicant and Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent. 15. Therefore, apprehending that the postdated cheques handed over to them under the contract dated 17.4.2013 may be presented for payment, the applicant has come up with the above application under Section 9. 14. I have heard Mr.S.R.Raghunathan, learned counsel for the applicant and Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent. 15. As stated earlier, the only prayer with which the applicant has come up with the above application is to restrain the respondent from presenting for payment, about 60 cheques bearing Nos.504016 to 504075 drawn on Indian Bank, Harbour Branch, Chennai, pending disposal of the arbitral proceedings. The relief sought by the applicant, is certainly an extraordinary relief and hence I have no doubt in my mind that the triple tests for the grant of an injunction viz., (i) prima facie case (ii) balance of convenience and (iii) irreparable hardship, have to be administered with a much stronger dosage than I would do in any other case where any other type of injunction is sought. Keeping this bottom line in mind, let me consider the primary grounds on which the applicant seeks such an extraordinary prayer. 16. As seen from the affidavit in support of the above application, the main grounds on which the applicant seeks the aforesaid extraordinary relief are (i) that the agreement dated 17.4.2013 is vitiated by misrepresentation, fraud and mistaken identity and hence the cheques issued under the contract cannot be encashed; and (ii) that the cheques handed over by the applicant under the contract dated 17.4.2013 do not represent the consideration for the contract and hence cannot be encashed. 17. The above application is opposed by the respondent on several grounds both technical and non-technical. 17. The above application is opposed by the respondent on several grounds both technical and non-technical. They can be summarised as follows:- (i) The failure of the applicant to implead the Punjab National Bank, who is the ultimate beneficiary of the payments under the cheques in question, is fatal to the above application; (ii) The relief sought in the application is in the nature of an injunction in restraint of initiation of criminal proceedings and hence it is barred by Section 41(d) of the Specific Relief Act, 1963; (iii) The legal presumption under Section 139 of the Negotiable Instruments Act about the existence of a valid consideration in support of cheques issued in favour of a person, can be rebutted only through evidence during trial and hence in an application for injunction, the applicant cannot succeed; (iv) The application for injunction is based on the premise that the agreement dated 17.4.2013 is void due to fraud. But a declaration that a contract is void cannot be made by an Arbitral Tribunal, in view of the fact that the Arbitral Tribunal itself is a creature of the contract and it would have no power to declare the contract by which it was constituted, as null and void. Consequently, no application under Section 9 can be entertained when the larger relief proposed to be sought before the Arbitral Tribunal cannot be granted by the Arbitral Tribunal; (v) The allegations of fraud in any case are not referable to arbitration, but have to be adjudicated only in a Civil Court and hence an application under Section 9 would not lie; (vi) In any case, fraud and misrepresentation gives a right to an innocent party only to avoid the contract. If that party had not chosen to avoid the contract, but on the other hand, chooses to confirm the contract with full knowledge, the contract becomes enforceable. (vii) After having signed the contract dated 17.4.2013 with eyes wide open to the covenants contained therein that the earlier disputes would remain unaffected, it is not open to the applicant to rely upon the earlier disputes to set at naught the agreement dated 17.4.2013. 18. (vii) After having signed the contract dated 17.4.2013 with eyes wide open to the covenants contained therein that the earlier disputes would remain unaffected, it is not open to the applicant to rely upon the earlier disputes to set at naught the agreement dated 17.4.2013. 18. Since the above objections of the respondent are to the very maintainability of the present application, let me first take up for consideration to the above objections, before testing whether the applicant satisfies the triple tests for the grant of an injunction or not. FAILURE TO IMPLEAD PUNJAB NATIONAL BANK: 19. The first contention of the respondent is that under Article 13.1 of the agreement dated 17.4.2013, the applicant was obliged to give to Punjab National Bank 60 post dated cheques, each for a sum of Rs.39 lakhs in the name of the respondent. Once this was done, the respondent became obliged to ensure that 17 cheques bearing Nos.688444 to 688460 each for an amount of Rs.35 lakhs, already lying with them in pursuance of the contract dated 7.8.2008 were to be returned to the applicant. 20. In other words, the 60 post dated cheques in respect of which the applicant has come up with the above application, are intended for replacing 17 post dated cheques that were handed over under the agreement dated 7.8.2008. Since the agreement dated 7.8.2008 between the applicant and Goyal MG Gases Private Limited was followed by a tripartite agreement to which Punjab National Bank was a party, it is contended by the respondent that the beneficiary of these cheques is Punjab National Bank. Therefore no order of injunction can be granted behind the back of Punjab National Bank. The non-impleadment of Punjab National Bank, according to the respondent, makes the above application not maintainable in law. 21. I have carefully considered the above submissions. At the outset, the present application arises out of an agreement dated 17.4.2013 entered into by the applicant with the respondent. The agreement dated 17.4.2013 contains a clause for arbitration in Article 19. Punjab National Bank has not been made a party to this agreement dated 17.4.2013. Therefore, it is clear that Punjab National Bank is not a party to the arbitration agreement that forms part of the whole contract dated 17.4.2013. 22. The agreement dated 17.4.2013 contains a clause for arbitration in Article 19. Punjab National Bank has not been made a party to this agreement dated 17.4.2013. Therefore, it is clear that Punjab National Bank is not a party to the arbitration agreement that forms part of the whole contract dated 17.4.2013. 22. It is now well settled that a person who is not a party to an arbitration agreement, cannot be roped in, either in the arbitration proceedings or in an application under Section 9 or even Section 11. The expression "party" is defined in Section 2(1)(h) of the Arbitration and Conciliation Act, 1996, to mean a party to an arbitration agreement. The expression "arbitration agreement" is defined in Section 2(1)(b) to mean an agreement referred to in Section 7. Section 7(1) of the Act defines an arbitration agreement to mean an agreement by the parties to submit to arbitration, all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. Though an arbitration agreement may be in the form of a separate agreement or in the form of an arbitration clause in a contract, it must necessarily be in writing under Section 7(3). It will be deemed to be in writing, in terms of Section 7(4), if it satisfies at least one of the following requirements viz.:- (i) It is signed by the parties to a document; (ii) It is in the form of exchange of letters, telex, telegrams or other means of communication; (iii) It is in the form of exchange of statement of claim and defence. 23. None of the ingredients of Section 7(4) is satisfied by Punjab National Bank. Punjab National Bank is not a party to the agreement dated 17.4.2013. The clause for resolution of disputes between the applicant and the respondent through arbitration, forms part of the agreement dated 17.4.2013. There is no document signed by Punjab National Bank, which makes Punjab National Bank a party to the arbitration agreement in terms of Section 7(4). 24. The Supreme Court has held in Sukanya Holdings (P) Ltd vs. Jayesh H. Pandya { 2003 (5) SCC 531 }, that a person who is not a party to the arbitration agreement, cannot be roped into the arbitration proceedings. Therefore, such a party cannot also be roped into an application under Section 9. 25. 24. The Supreme Court has held in Sukanya Holdings (P) Ltd vs. Jayesh H. Pandya { 2003 (5) SCC 531 }, that a person who is not a party to the arbitration agreement, cannot be roped into the arbitration proceedings. Therefore, such a party cannot also be roped into an application under Section 9. 25. Inviting my attention to the tripartite agreement dated 25.5.2009, Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent contended that under the said agreement, 60 post dated cheques were handed over to Goyal MG Gases Private Limited. Those cheques were in turn handed over by Goyal MG Gases Private Limited to Punjab National Bank. Out of those cheques, some were honoured and some were dishonoured, leading to proceedings under Section 138 of the Negotiable Instruments Act. About 17 out of those 60 cheques, bearing Nos.688444 to 688460 were returned by Punjab National Bank, in terms of the obligations under Article 13.1 of the agreement dated 17.4.2013, to be replaced by 60 post dated cheques. Therefore, it is the contention of the learned Senior Counsel for the respondent that though Punjab National Bank was not a party to the agreement dated 17.4.2013, they had parted with 17 cheques in their possession, in view of the promise of the applicant to replace them with 60 cheques. Thus, it is the Bank which had parted with a valuable security and hence any order of injunction would actually infringe upon their rights. 26. But I am unable to sustain the above contention of the learned Senior Counsel for the respondent. This is for the simple reason that the original contract dated 7.8.2008 was only between the applicant and Goyal MG Gases Private Limited. Punjab National Bank was not a party even to the said agreement. Article 20 of the agreement dated 7.8.2008 contains a clause for arbitration. After nearly a period of 10 months of the execution of the said agreement, a tripartite agreement was entered into between Goyal MG Gases Private Limited, the applicant herein and the Punjab National Bank. That tripartite agreement dated 25.5.2009 merely concerned payments to be made by the applicant to Goyal MG Gases Private Limited and the obligation of Goyal MG Gases Private Limited to pass on that payment to Punjab National Bank. That tripartite agreement dated 25.5.2009 merely concerned payments to be made by the applicant to Goyal MG Gases Private Limited and the obligation of Goyal MG Gases Private Limited to pass on that payment to Punjab National Bank. In other words, the tripartite agreement dated 25.5.2009 was neither made supplemental nor made part and parcel of the original agreement dated 7.8.2008. Consequently, Punjab National Bank is not even a party to the original agreement dated 7.8.2008. There is no arbitration clause in the tripartite agreement dated 25.5.2009 and the agreement dated 25.5.2009 was not even dovetailed with the contract dated 7.8.2008. 27. As a matter of fact, the relationship between all the parties to the tripartite agreement was made clear in another agreement viz., Escrow Account Agreement dated 25.5.2009. In that agreement, it was made clear that the parties merely agreed to create a charge over the receivables of Goyal MG Gases Private Limited from the applicant. Therefore, the post dated cheques handed over by the applicant to Goyal MG Gases Private Limited under the agreement dated 7.8.2008, were merely intended to be deposited in an Escrow Account, with the Bank having a charge over their proceeds. 28. It must be pointed out that the Bank was not even made the payee of the cheques. The Bank was also not the holder in due course. It is seen from Articles 3 and 4 of the Escrow Account Agreement dated 25.5.2009 that all payments that would flow into the Escrow Account in favour of Goyal MG Gases Private Limited, not only from the applicant, but also from all its customers, were to be disbursed in terms of the agreement. Both Goyal MG Gases Private limited as well as the Bank were entitled to withdrawals from the said Account. Therefore, it is clear that the Bank was neither a payee nor the holder in due course. 29. In such circumstances, the contention that the Bank will be affected if an injunction is granted, is a bogey created by the respondent to make the Court believe as though valuable rights of a nationalised Bank may be affected by the grant of an order of injunction. Hence the first objection of the respondent about the non-impleadment of the bank is overruled. SPECIFIC RELIEF ACT, 1963: 30. Hence the first objection of the respondent about the non-impleadment of the bank is overruled. SPECIFIC RELIEF ACT, 1963: 30. The second contention of the respondent is that under Section 41(d) of the Specific Relief Act, 1963, no Court shall grant an injunction to restrain any person from instituting or prosecuting any proceeding in a criminal matter. Therefore, it is contended by the respondent that the relief of injunction sought by the applicant is barred by the provisions of Section 41(d). 31. But the above contention loses sight of one important fact. The relief sought in the above application is not exactly to restrain the respondent from instituting or prosecuting any proceeding in a criminal matter. The relief sought by the applicant is only to restrain the respondent from presenting the cheques for payment. As a matter of fact, the application was moved for ad interim ex parte orders of injunction on 22.10.2013. On that date, the respondent had not presented for payment even a single cheque out of the 60 cheques handed over to them. Therefore, the respondent did not even have a cause of action on 22.10.2013, to institute any proceeding in a criminal matter against the applicant. On 22.10.2013, the learned counsel for the applicant pressed for an ad interim ex parte order of injunction on the ground that if the respondent was allowed time, they may present the cheques for payment and create a cause of action and then come up before Court with the shield under Section 41(d). However, I refused ad interim ex parte orders on 22.10.2013, in view of two facts viz., (i) that the respondent appeared through counsel even on day one and took notice and agreed to file a counter; and (ii) that in matters of such nature, the Court was obliged to go slow. Therefore, I have to test the contention of the respondent on the basis of Section 41(d), basically with reference to the date 22.10.2013, when the above application was moved before me. On 22.10.2013, not even one cheque out of the 60 cheques had been presented for payment. Therefore, I have to test the contention of the respondent on the basis of Section 41(d), basically with reference to the date 22.10.2013, when the above application was moved before me. On 22.10.2013, not even one cheque out of the 60 cheques had been presented for payment. To give rise to a cause of action for prosecuting a person in terms of Section 138 of the Negotiable Instruments Act, 1881, the following steps should have been taken:- (i) The cheque should be presented to the bank within six months from the date on which it is drawn or within the period of its validity; (ii) The payee or the holder in due course should make a demand in writing within 15 days of receipt of information from the bank regarding the return of the cheque as unpaid; and (iii) The drawer should have failed to make payment of the said amount within 15 days of receipt of the notice. 32. When the very cause of action for instituting a proceeding in a criminal matter, so as to apply Section 41(d) of the Specific Relief Act, 1963, had not arisen on 22.10.2013, it is impossible to hold that the application is barred by the said provision. The cause of action was not even in sight on the date when the applicant approached this Court. There were only possibilities like weather reports, of a depression forming in the distant horizon. Therefore, in cases of such a nature, I doubt if Section 41(d) would apply at all. Section 41(d) would apply to a case where at least the first limb of the cause of action, as given in the proviso to Section 138 of the Negotiable Instruments Act, had arisen. The mere possibility that an act, which is sought to be prevented, if allowed to happen, would lead to the institution of a criminal proceeding, cannot and will not be covered by Section 41(d) of the Specific Relief Act, 1963. 33. The ratio laid down in Trisuns Chemical Industry vs. Rajesh Agarwal { 1999 (8) SCC 686 }, is not applicable to cases like the one on hand. In that case, there was an agreement between the parties for the purchase and supply of goods. The payment of the price of the goods was made in advance through cheques. 33. The ratio laid down in Trisuns Chemical Industry vs. Rajesh Agarwal { 1999 (8) SCC 686 }, is not applicable to cases like the one on hand. In that case, there was an agreement between the parties for the purchase and supply of goods. The payment of the price of the goods was made in advance through cheques. On the allegation that the goods supplied were of substandard quality and that they were cheated, the purchaser lodged a criminal complaint and the supplier filed a quash petition under Section 482 Cr.P.C. The quash petition was allowed on the ground that under the Memorandum of Understanding, the parties had agreed to resolve their disputes through arbitration and that therefore, the same cannot be the subject matter of criminal prosecution. But the said decision of the High Court was set aside by the Supreme Court, on the ground that an arbitration agreement is not an effective substitute for a criminal prosecution, when the disputed act is an offence. 34. Therefore, the ratio laid down in Trisuns Chemical Industry, is not applicable to the case on hand. First of all, the said decision arose out of an order of the High Court quashing the criminal proceedings, on the ground of existence of an arbitration agreement. In this case, there are no criminal proceedings. There is a mere possibility of a right accruing to the respondent to institute criminal prosecution. Therefore, the tests applicable to a proceeding under Section 482 of the Code, cannot be imported to cases of this nature. As pointed out earlier, the applicant has not come up with a prayer either to stop further proceedings before a Criminal Court, or to quash criminal proceedings pending in a Criminal Court. All that the applicant has sought is an injunction to prevent the respondent from encashing the cheques. 35. Hypothetically speaking, the cheques may even get honoured. If the cheque gets honoured, the respondent would not even have a right to institute a proceeding under Section 138 of the Negotiable Instruments Act, 1881. Therefore, on the presumption that the cheque would certainly get dishonoured and that thereafter a cause of action for instituting a complaint under Section 138 of the Negotiable Instruments Act, 1881, may arise, I cannot dismiss an application under Section 9 of the Arbitration and Conciliation Act, 1996. Therefore, on the presumption that the cheque would certainly get dishonoured and that thereafter a cause of action for instituting a complaint under Section 138 of the Negotiable Instruments Act, 1881, may arise, I cannot dismiss an application under Section 9 of the Arbitration and Conciliation Act, 1996. There is a clear distinction between cases filed before the presentation of cheques and case filed thereafter. 36. In State of Orissa vs. Ujjal Kumar Burdhan { 2012 (4) SCC 547 }, relied upon by the respondent, the Supreme Court reiterated that the existence of an arbitration agreement cannot take criminal acts out of the jurisdiction of the Courts. That case also arose out of an order passed by the High Court, quashing a criminal complaint under Section 482 of the Code. Both in Trisuns Chemical Industry and in Ujjal Kumar Burdhan, there were criminal complaints registered by the police. Those criminal complaints were quashed by the High Courts in exercise of the power under Section 482 of the Code. The Supreme Court reversed the decision of the High Courts in both cases and allowed the prosecution to continue. 37. Relying upon the decisions of the Delhi High Court in M/s.Anuj Trading Co. vs. M/s.Electrolux Kelvinator Ltd {ILR (2007) I Delhi 864} and Vishal Gupta vs. Udai K.Lauria {ILR (2010) II Delhi 346}, it is contended by Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent that the pendency of civil proceedings cannot be a bar to proceed with criminal prosecution under Section 138. But the said contention is premature. Even the cause of action to file a criminal case has not arisen. Therefore, these decisions do not apply to the case on hand. 38. In the case on hand, there is no prosecution. There is not even a criminal complaint. Even the cause of action for instituting a criminal proceeding has not arisen, as required by the proviso to Section 138. The possibility of the respondent presenting the cheques for payment, the possibility of the applicant dishonouring the cheques, the possibility of the respondent complying with the requirements of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and the possibility of the respondent instituting the criminal complaints alone were in existence. 39. The possibility of the respondent presenting the cheques for payment, the possibility of the applicant dishonouring the cheques, the possibility of the respondent complying with the requirements of the proviso to Section 138 of the Negotiable Instruments Act, 1881 and the possibility of the respondent instituting the criminal complaints alone were in existence. 39. As a matter of fact, all the 60 cheques are dated sequentially, with the first cheque bearing the date 1.7.2013, the next cheque bearing the date 1.8.2013 and the third cheque bearing the date 1.9.2013 and so on and so forth. Therefore, even the right to present the cheques for payment, has not arisen for the respondent at least in respect of about 55 out of 60 cheques which bear future dates. In such circumstances, neither Section 41(d) of the Specific Relief Act, 1963 can be invoked nor the case on hand comparable to the cases decided by the Apex Court in the above two decisions. PRESUMPTION RELATING TO THE EXISTENCE OF VALID CONSIDERATION FOR POST DATED CHEQUES: 40. The next contention of the respondent is that there is a presumption in law under Section 139 of the Negotiable Instruments Act, 1881, in favour of the holder of a cheque that the holder received the cheque for the discharge of any debt or other liability. Of course this presumption is rebuttable, as seen from the expression "unless the contrary is proved" appearing in Section 139. Therefore, there is no doubt that the respondent is the holder of the cheque and that there is a presumption in favour of the respondent that the cheque was issued for the discharge of the whole or part of any debt or other liability. According to the respondent, till this presumption is rebutted in evidence in the course of trial, the applicant cannot seek an injunction. 41. I have carefully considered the above submission. It is ture that section 139 of the N.I.Act creates a presumption in favour of the holder. Even under Section 118 of the Negotiable Instruments Act, 1881, a Court is obliged to take note of 7 types of presumptions, unless the contrary is proved. 41. I have carefully considered the above submission. It is ture that section 139 of the N.I.Act creates a presumption in favour of the holder. Even under Section 118 of the Negotiable Instruments Act, 1881, a Court is obliged to take note of 7 types of presumptions, unless the contrary is proved. These presumptions are:- (i) that every negotiable instrument is supported by consideration; (ii) that every negotiable instrument bearing a date was made or drawn on such date; (iii) that every accepted Bill of Exchange was accepted within a reasonable time after its date and before its maturity; (iv) that every transfer of a negotiable instrument was made before its maturity; (v) that the endorsements appearing on the instrument were made in the order in which they appear; (vi) that a lost promissory note or cheque was duly stamped; and (vii) that the holder of a negotiable instrument is a holder in due course, except in cases where the instrument had been obtained by means of an offence or fraud or for unlawful consideration. 42. Out of the 7 presumptions that Section 118 speaks about, we are primarily concerned with 3 presumptions in so far as the case on hand is concerned. The first presumption is about the instrument being supported by consideration. The second presumption is about the date on which it was drawn. The third presumption is about whether the holder was a holder in due course or not. 43. On the basis of Section 118, the contention of the respondent is that the question as to whether the cheques were issued for the discharge of a debt or other liability and the question as to whether the negotiable instruments were made or drawn for consideration or not, are matters of evidence. Till evidence is let in before the Arbitral Tribunal, this Court cannot presume anything in favour of the applicant, contrary to the presumptions that legally arise in favour of the respondent under Section 118. 44. The above contention of the respondent is prima facie correct. In an enquiry under Section 9 of the Arbitration and Conciliation Act, 1996, I would go only by the legal presumption available in favour of the respondent under Section 118. The expression "unless the contrary is proved" appears even in Section 118, as it does in Section 139. 44. The above contention of the respondent is prima facie correct. In an enquiry under Section 9 of the Arbitration and Conciliation Act, 1996, I would go only by the legal presumption available in favour of the respondent under Section 118. The expression "unless the contrary is proved" appears even in Section 118, as it does in Section 139. The burden of proving that the cheque was not issued for the discharge of any debt or other liability, lies only on the applicant. This burden of proof has to be discharged by leading evidence in the course of arbitration proceedings or before a Civil Court, wherever the remedy of the applicant lies. 45. But a careful look at Section 118 would show that clause (g) thereof contains a different tune than the one composed in clauses (a) to (f). While no exception is prescribed to the rules of evidence stipulated in clauses (a) to (f) of Section 118, the rule in clause(g) of Section 118 contains an exception. Under this clause, the normal rule is that the holder of a negotiable instrument is a holder in due course. But the exception to this rule is that where the instrument had been obtained by means of an offence or fraud or for unlawful consideration, the burden of proving is upon the holder to show that he is a holder in due course. Therefore, before throwing out the application under Section 9 on the ground that there is a presumption in favour of the respondent, I must test whether the exception under Section 108(g) would apply or not. 46. Section 8 of the Negotiable Instruments Act, 1881, defines the holder of a cheque to mean a person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Section 9 defines a "holder in due course" to mean a person, who for consideration, became the possessor of a cheque, if payable to bearer or the payee or the indorsee thereof, if payable to order. But to be a holder in due course, the person having possession of the cheque, must have come to possess the same before the amount mentioned in it became payable and without having sufficient cause to believe that any difficulty existed in the title of the person from whom he derived his title. 47. But to be a holder in due course, the person having possession of the cheque, must have come to possess the same before the amount mentioned in it became payable and without having sufficient cause to believe that any difficulty existed in the title of the person from whom he derived his title. 47. But unfortunately for the respondent, the cheques were handed over by the applicant on 17.4.2013, at the time of signing an agreement. That agreement described the person to whom payments were to be made under the agreement, as "Goyal Gases Private Limited (formerly known as Goyal MG Gases Private Limited)". Under the Article 13.1 of the agreement dated 17.4.2013, the cheques were to be in the name of the "seller". The expression "seller" is traceable to the party described in the agreement as "Goyal Gases Private Limited (formerly known as Goyal MG Gases Private Limited)". 48. Therefore, the respondent would satisfy the requirements of Section 8, of the Negotiable Instruments Act, 1881, only if the respondent was a successor in interest of Goyal MG Gases Private Limited. In other words, a plain reading of the agreement dated 17.4.2013 shows that Goyal MG Gases Private Limited was the person intended to be "the holder of the cheque", as they happened to be the seller and they happened to be the "person entitled in their own name to the possession of the cheque" as per the definition contained in Section 8. 49. Once it is shown that the cheques in question were handed over in pursuance of the agreement dated 17.4.2013 and once it is also found that the cheques were intended to be in favour of a company that succeeded to Goyal MG Gases Private Limited, it is clear that the respondent cannot be intended to be the holder within the meaning of Section 8, especially after the respondent has taken a position that they are not the successors in interest nor did they have any privity of contract with Goyal MG Gases Private Limited. 50. 50. It is an admitted fact (i) that the respondent herein is described in the agreement dated 17-4-2013 as the successor in interest of Goyal MG Gases Private Limited; (ii) that the respondent is also described as the seller in the agreement dated 17.4.2013; (iii) that the respondent is described as the company which installed an Oxygen Plant inside the premises of the applicant; and (iv) that the respondent was shown in the agreement dated 17.4.2013 to have installed liquid storage tanks vaporises and liquid pump. Therefore, unless the respondent stands by all these covenants and affirmations, the respondent cannot be the holder of the cheque within the meaning of Section 8. It is only after one month of making the applicant part with 60 post dated cheques on 17.4.2013 that the respondent came up with a story on 21.5.2013 that the respondent is a distinct and different legal entity than Goyal MG Gases Private Limited. For some inexplicable reason, which the respondent has been unable to bring on record, the respondent repeatedly informed the applicant that both companies are different and distinct legal entities and that there was no privity of contract between the respondent and Goyal MG Gases Private Limited. Therefore, the respondent cannot even come within the definition of the expression "holder in due course" under Section 9. 51. Strangely, the respondent has taken a plea that Punjab National Bank is the holder in due course. But this is falsified by the terms and conditions of the Escrow Account Agreement dated 25.5.2009. Under that agreement, the Punjab National Bank merely had a charge over the receivables of Goyal MG Gases Private Limited. As a matter of fact, Goyal MG Gases Private Limited was even entitled to withdraw monies from the Escrow Account Agreement, provided the payments due to the Bank are also honoured. Therefore, the respondent herein is neither a holder nor a holder in due course, within the meaning of Sections 8 and 9 of the Negotiable Instruments Act, 1881. The respondent is merely a person in actual physical possession of 60 post dated cheques. The person to whom those cheques were intended to be handed over by the applicant is "Goyal MG Gases Private Limited". The respondent is merely a person in actual physical possession of 60 post dated cheques. The person to whom those cheques were intended to be handed over by the applicant is "Goyal MG Gases Private Limited". The applicant handed over these cheques to the respondent in view of a representation made by the respondent in writing in the agreement dated 17.4.2013 that they are the successors in interest of Goyal MG Gases Private Limited. 52. It is not merely a case of mistaken identity, to enable me to give the benefit of doubt to the respondent. It is a clear case where the respondent represented itself to be the company which was formerly known as Goyal MG Gases Private Limited. This representation is strengthened more and more by various facts, one of which is the person who signed the same. As pointed out earlier, the contract dated 7.8.2008 was signed by one Mr.K.K.Dhar as the Authorised Signatory of Goyal MG Gases Private Limited. The contract dated 17.4.2013 was signed on behalf of the respondent herein by the very same person Mr.K.K.Dhar, representing himself to be the DGM (Business Development) of the respondent. The communication dated 21.5.2013 that the respondent is not the successor in interest of Goyal MG Gases Private Limited and that there was no privity of contract as between these parties was also signed only by Mr.K.K.Dhar as the Authorised Signatory of the respondent. Even the addenda that the respondent sent for the consideration of the applicant was actually forwarded only by the said Mr.K.K.Dhar. 53. Interestingly, the claim petition by Goyal MG Gases Private Limited before the Arbitral Tribunal, in respect of the contract dated 7.8.2008 had also been verified and signed by Mr.K.K.Dhar. However in the course of cross-examination, Mr.K.K.Dhar admitted that he was not an employee of Goyal Gases Private Limited. Therefore, it is not known as to how and under what authority, he signed the contract dated 17-4-2013 on behalf of the respondent. 54. Two things are borne out from the above. However in the course of cross-examination, Mr.K.K.Dhar admitted that he was not an employee of Goyal Gases Private Limited. Therefore, it is not known as to how and under what authority, he signed the contract dated 17-4-2013 on behalf of the respondent. 54. Two things are borne out from the above. They are (i) that when 60 post dated cheques were issued by the applicant, drawn in the name of the respondent, on 17.4.2013, the applicant was clearly under the impression that they were making payments to the successor of Goyal MG Gases Private Limited; and (ii) that the agreement dated 17.4.2013 was signed on behalf of one Mr.K.K.Dhar, claiming himself to be the DGM (Business Development), but it ultimately turned out by his own admission, that he was not an employee of the respondent. He was neither an Authorised Signatory nor a Director of the respondent, so as to bind the respondent to the obligations under the contract dated 17.4.2013. 55. The only inference that flows out of the above admitted factual position is that the cheques were not issued by the respondent in pursuance of the contract dated 17.4.2013, with an intention that the holder of those cheques within the meaning of Section 8, would be anybody else than Goyal MG Gases Private Limited or its successor. In such circumstances, the burden of proof under Section 118(g) is actually upon the respondent. It is upto the respondent to prove the contrary in the course of trial and shift the burden upon the applicant. Till then the respondent cannot take advantage of the cheques in question. 56. The fact that the applicant did not seek to rescind the contract dated 17.4.2013 and the fact that the respondent continued to have correspondence even after 21.5.2013 with the respondent, is of no consequence. It does not have a bearing upon my finding as above. This is for the simple reason that the applicant filed an application in I.A.No.2 of 2012 before the Arbitral Tribunal on 23.5.2013 praying for declaring 4 reliefs made in the original claim petition of Goyal MG Gases Private Limited as having become infructuous. This application was taken out only on the basis of the new contract dated 17.4.2013. 57. This is for the simple reason that the applicant filed an application in I.A.No.2 of 2012 before the Arbitral Tribunal on 23.5.2013 praying for declaring 4 reliefs made in the original claim petition of Goyal MG Gases Private Limited as having become infructuous. This application was taken out only on the basis of the new contract dated 17.4.2013. 57. The respondent does not dispute the fact that the applicant filed I.A. No.2 of 2012 before the Arbitral Tribunal on 23.5.2013 contending that the parties to the arbitration proceedings had in fact entered into a new contract. The applicant has stated that the letter dated 21.5.2013 sent by the respondent claiming that both companies are two different entities, was received only after this application I.A. No.2 of 2012 was filed by the applicant before the Arbitral Tribunal. I have no reason to suspect this statement. This is in view of the fact that paragraph 3 of I.A.No.2 of 2012 speaks about the replacement of 17 cheques by fresh post dated cheques numbering about 60. 58. The respondent does not dispute the fact that when the applicant parted with 60 postdated cheques under the agreement dated 17.4.2013, the respondent was clearly under the impression that the payee of the cheques was only Goyal MG Gases Private Limited, that had taken a new avatar. It is also admitted that till the letter dated 21.5.2013, sent by the respondent, landed up with the applicant, the applicant was under the very same impression. 59. The applicant cannot be found guilty of keeping quite after the letter dated 21.5.2013. Even before the receipt of the letter dated 21.5.2013, the applicant had taken out an application before the Arbitral Tribunal for declaring some of the reliefs sought by Goyal MG Gases Private Limited as having become infructuous. Therefore, the applicant cannot be taken to have waived or abandoned their rights to question the retention of the cheques by the respondent. 60. In the above circumstances, I have no doubt in my mind that the respondent cannot take advantage of the presumption under Section 138 or under clauses (a) to (f) of Section 118 of the Negotiable Instruments Act, 1881. On the contrary, the applicant is entitled to raise a presumption in their favour, in terms of clause (g) of Section 118. In the above circumstances, I have no doubt in my mind that the respondent cannot take advantage of the presumption under Section 138 or under clauses (a) to (f) of Section 118 of the Negotiable Instruments Act, 1881. On the contrary, the applicant is entitled to raise a presumption in their favour, in terms of clause (g) of Section 118. Till the respondent rebuts the presumption through evidence, the applicant should have the benefit of such a presumption. 61. However, there is one more aspect to be cleared, with regard to this aspect. That is about the 17 post dated cheques that were returned to the applicant for replacement by 60 post dated cheques. 62. It is true that in terms of Article 13.1 of the contract dated 17.4.2013, the applicant received back 17 post dated cheques bearing Nos.688444 to 688460 from the Punjab National Bank. This is a benefit that has accrued to the applicant under the agreement dated 17.4.2013. Therefore, the applicant should be prepared to offload this benefit that they derived under the very same contract that they seek to declare as null and void. 63. Admittedly, these 17 cheques that the applicant received back, are for a total value of Rs.595 lakhs. But the cheques that they issued in return, are for the total value of Rs.23.40 crores. No sane person would have agreed to replace 17 cheques of the value of Rs.5.95 crores with cheques for the value of Rs.23.40 crores, unless such a person was convinced that the identities of both parties are one and the same. Therefore, the fact that the applicant received a benefit under the contract dated 17.4.2013 is not a pointer to the fact that the respondent received the cheques for a valid consideration. On the contrary, the respondent, received the cheques of the value of Rs.23.40 crores for giving back to the applicant, cheques worth Rs.5.95 crores. Hence even the fact that the applicant received a benefit under the agreement dated 17.4.2013 does not tilt the balance in favour of the respondent. At the most, the respondent can insist on being put in a position that prevailed before the contract dated 17.4.2013 was entered into. But even this cannot be sought by the respondent, as the respondent claims to be a distinct and different legal entity. At the most, the respondent can insist on being put in a position that prevailed before the contract dated 17.4.2013 was entered into. But even this cannot be sought by the respondent, as the respondent claims to be a distinct and different legal entity. Perhaps Goyal MG Gases Private Limited can seek the return of those 17 cheques. DISPUTE NOT ARBITRABLE: 64. The next contention of the respondent is that the prayer of the applicant for a declaration that the contract dated 17.4.2013 is null and void, is not arbitrable at all. Relying upon Section 28(3) of the Arbitration and Conciliation Act, 1996, it is contended by Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent that the Arbitral Tribunal is actually a creature of the contract and that therefore, the Arbitral Tribunal cannot go beyond the terms of the contract. In other words, it is his contention that an Arbitral Tribunal which is created by a contract, cannot declare the very same contract to be null and void. 65. Inviting my attention to the decision of the Supreme Court in N.Radhakrishnan vs. Maestro Engineers { 2010 (1) SCC 72 }, it is contended by Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent that in any case, the allegations of fraud are not referable to arbitration, but have to be decided only by open adjudication in a civil suit. If the claim that an agreement is null and void on account of fraud, is not arbitrable at all, the applicable cannot invoke the jurisdiction of this Court under Section 9, according to the respondent. 66. But unfortunately, the above contention of the respondent loses sight of one important fact. The Arbitration and Conciliation Act, 1996, is actually divided into two parts. Part-I relates to domestic arbitration and Part-II relates to International Commercial Arbitration. In respect of domestic arbitration, a person against whom a suit is brought, is entitled to file an application under Section 8 before the Court, seeking a reference of the dispute to arbitration. In respect of International Commercial Arbitration, a person against whom a civil suit is filed, has to take out an application under Section 45, seeking a reference of the dispute to arbitration. 67. Though Sections 8 and 45 are identical provisions, enabling the defendant in a civil suit to seek a reference of the dispute to arbitration, they are not exactly worded in pari materia. 67. Though Sections 8 and 45 are identical provisions, enabling the defendant in a civil suit to seek a reference of the dispute to arbitration, they are not exactly worded in pari materia. For the purpose of easy comparison, Section 8 and Section 45 are presented in a tabular form as follows:- Section 8 Section 45 8. Power to refer parties to arbitration where there is an arbitration agreement.-- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall,if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 45. Power of judicial authority to refer parties to arbitration.--Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. 68. A careful comparison of Section 8(1) with Section 45 would show that the jurisdiction of the Civil Court to refer parties to International Commercial Arbitration under Section 45, is a qualified mandate. Section 45 contains a rider which reads : "unless it finds that the said agreement is null and void, inoperative or incapable of being performed". This rider is conspicuously absent in Section 8(1). Therefore, to say that even in respect of domestic arbitrations, a reference cannot be made in terms of Section 8(1) whenever the agreement is assailed to be vitiated by fraud, would tantamount to importing the rider found in Section 45, into Section 8(1). In other words, it would be a case of supply of "causus omissus". 69. Therefore, to say that even in respect of domestic arbitrations, a reference cannot be made in terms of Section 8(1) whenever the agreement is assailed to be vitiated by fraud, would tantamount to importing the rider found in Section 45, into Section 8(1). In other words, it would be a case of supply of "causus omissus". 69. The mandate of Section 8(3) is very clear to the effect that even when a case is pending before a Judicial Authority, an arbitration can be commenced and continued and an award also made. A provision similar to Section 8(3) is also not found in Section 45. Therefore, it is clear that the lawmakers intended to insulate domestic arbitration from a sabotage on the ground that an agreement is vitiated by fraud and that therefore the dispute itself is not arbitrable. 70. There is also one more aspect. After the advent of the Arbitration and Conciliation Act, 1996, the doctrine of severability has been incorporated into the contracts. In other words, the 1996 Act treats an arbitration agreement or a clause for arbitration which forms part of the main contract, as an independent contract which can survive by itself. This difference between the language of Sections 8 and 45 was noted by the Supreme Court in Shin-Etsu Chemical Co. Ltd vs. Aksh Optifibre Ltd { 2005 (7) SCC 234 }. This decision by a 3 member Bench of the Supreme court, was not noticed in N.Radhakrishnan. Therefore, we cannot import the rider found in Section 45 into Section 8 to take out of the purview of the arbitration clause, disputes where allegations of fraud are made out. 71. As a matter of fact, in Sundaram Brake Linings Ltd vs. Kotak Mahindra Bank Ltd {2008 (7) MLJ 1296}, I had an occasion to consider in extenso, the scope of Section 8, in a case where the whole contract was assailed as null and void. After taking note of the decision of the Supreme Court in Abdul Kadir Shamsuddin Bubere vs. Madhav Prabhakar { AIR 1962 SC 406 }, I pointed out that the said decision of the Supreme Court arose under the 1940 Act, where no distinction was made between the provisions relating to domestic arbitration and international commercial arbitration. After taking note of the decision of the Supreme Court in Abdul Kadir Shamsuddin Bubere vs. Madhav Prabhakar { AIR 1962 SC 406 }, I pointed out that the said decision of the Supreme Court arose under the 1940 Act, where no distinction was made between the provisions relating to domestic arbitration and international commercial arbitration. I also took note of the decision of the K.P.Sivasubramaniam, J., in H.G.Oomor Sait vs. O.Aslam Sait { 2001 (3) CTC 269 } and a contrary view expressed by R.Jayasimha Babu, J., in an unreported decision in Madras Refineries Limited vs. Southern Petrochemicals Industries Corporation Ltd {decided on 11.3.1996 in A.No.571 of 1996 in C.S.No.67 of 1996}. I noted in the said decision that a Division Bench of this Court had already held in NIIT Ltd vs. Ashish Deb {2005 (2) LW 244} that even the validity of an agreement on the ground of fraud, can be gone into by the Arbitral Tribunal in view of the powers conferred under Section 16 of the Act. Therefore, the contention that the validity of an agreement cannot be decided by the Arbitral Tribunal, is contrary to the language of and intention behind the statute. 72. In so far as the decision of the Supreme Court in N.Radhakrishnan is concerned, it is seen that the Supreme Court followed in that decision, its earlier decision in Abdul Kadir Shamsuddin Bubere. But as pointed out by me, Abdul Kadir Shamsuddin Bubere arose under the 1940 Act. Under the 1996 Act, two important deviations have been made. They are (i) the arbitration clause found in a contract is treated as a separate agreement by itself by applying the doctrine of severability; and (ii) while in an application under Section 45, it is permissible for the Court to see whether a contract is null and void, inoperative or incapable of being enforced, such a power is deliberately not conferred in a Court under Section 8 while dealing with a domestic arbitration. Therefore, by judicial interpretation, Sections 8 and 45 cannot be placed in pari materia ignoring the deliberate omission to include in Section 8, the rider found in Section 45. Therefore, by judicial interpretation, Sections 8 and 45 cannot be placed in pari materia ignoring the deliberate omission to include in Section 8, the rider found in Section 45. Interestingly, before I delivered the decision on the scope of Section 8 in Sundaram Brake Linings Ltd., I had an occasion to consider in Andritz Oy v. Enmas Engineering Pvt. Ltd { 2007 (4) MLJ 290 }, the scope of Section 45. It was highlighted therein that the arbitration clause contained in a contract, can be equated to a lifeboat in sinking ship. Even if the ship explodes and sinks, the lifeboat can still sail. Similarly, even if the contract is vitiated by fraud, it will be open to the Arbitral Tribunal to decide that question by taking the lifeboat for its journey. In such circumstances, the contention that the dispute is not arbitrable at all, has to be rejected. 73. There is also one more reason as to why the above contention of the respondent cannot be countenanced. Under Section 19 of the Indian Contract Act, a contract to which the consent of a party was obtained by coercion, fraud or misrepresentation, is voidable at the option of the party whose consent was so caused. It is also open to the party whose consent was caused by fraud or misrepresentation to insist that the contract shall be performed and that he shall be put in the position in which he would have been, if the representations had been made true. Section 19 of the Contract Act, reads as follows:- "19. Voidability of agreements without free consent. When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true. Exception.--If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of Section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. Exception.--If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of Section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. Explanation.--A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable." 74. Interestingly, an agreement, the parties to which are under a mistake as to a matter of fact essential to the agreement, is made void under Section 20. But a contract vitiated by fraud or misrepresentation is made only voidable. Therefore, the normal premise that fraud vitiates all solemn acts, cannot at all times be made applicable to a contract, since the party whose consent was brought forth by fraud, is always entitled to have the contract enforced. Hence, the fourth contention of the respondent is rejected. THE FAILURE OF THE APPLICANT TO AVOID THE CONTRACT: 75. The next contention of the respondent is that in terms of Section 19 of the Indian Contract Act, a contract to which the consent of a party had been brought forth by fraud or misrepresentation, is only voidable. According to the respondent, the applicant has not so far chosen to avoid the contract. On the other hand, the conduct of the applicant, according to the respondent is such that the applicant ratified the contract. Therefore, relying upon the decision of the Supreme Court in Ganga Retreat and Towers Ltd vs. State of Rajasthan {2003 (12) SCC 91}, the learned Senior Counsel for the respondent contended that the applicant had lost its right of avoidance of the contract permanently. 76. But I do not think that the above contention can be sustained, in view of the clear facts borne out by records. Admittedly, the agreement entered into on 17.4.2013 clearly described the respondent as a company which was formerly known as Goyal MG Gases Private Limited. It was only after more than a month that the respondent chose to send a letter dated 21.5.2013 that the respondent is a distinct and separate entity than Goyal MG Gases Private Limited. Admittedly, the agreement entered into on 17.4.2013 clearly described the respondent as a company which was formerly known as Goyal MG Gases Private Limited. It was only after more than a month that the respondent chose to send a letter dated 21.5.2013 that the respondent is a distinct and separate entity than Goyal MG Gases Private Limited. Before this letter was received by the applicant, the applicant moved I.A.No.2 of 2012 before the Arbitral Tribunal on 23.5.2013, for declaring some of the prayers made by the respondent as having become infructuous. Even after the receipt of the letter dated 21.5.2013, the applicant consistently addressed the respondent, by including within brackets the words "formerly known as Goyal MG Gases Private Limited". Eventually, the respondent itself was frustrated and gave a deadline to the applicant that the contract cannot be proceeded with, unless the issue relating to identity is resolved. 77. Therefore, if at all there was a subsequent conduct on the part of the applicant, it was towards making the respondent stick to its original position that it was the successor in interest of Goyal MG Gases Private Limited. There is not a single act of omission or commission done by the applicant, to accept that they would be happy to deal with a company which was distinct and different from Goyal MG Gases Private Limited. Therefore, the contention that by virtue of the subsequent conduct, the applicant is prevented from assailing the contract and that the applicant had lost the right to avoid the contract, cannot be accepted. 78. Thus all the objections raised by the respondent, with respect to the maintainability of the above application, are liable to be rejected. But it would not automatically result in the applicant being entitled to an order of injunction. Therefore, let me now see if the applicant passes the triple tests of prima facie case, balance of convenience and irreparable hardship, so as to become eligible for the grant of injunction. PRIMA FACIE CASE: 79. As pointed out earlier, the main grievance of the applicant is that the applicant was misled to enter into the agreement dated 17.4.2013 and also to part with 60 postdated cheques, on the representation that the respondent was the successor in interest of Goyal MG Gases Private Limited. PRIMA FACIE CASE: 79. As pointed out earlier, the main grievance of the applicant is that the applicant was misled to enter into the agreement dated 17.4.2013 and also to part with 60 postdated cheques, on the representation that the respondent was the successor in interest of Goyal MG Gases Private Limited. Therefore, the applicant contends that the contract is vitiated by fraud and misrepresentation and that the cheques were not supported by consideration, so as to entitle the respondent to encash them. 80. The question as to whether the agreement dated 17.4.2013 was vitiated by fraud or misrepresentation, is certainly a question of fact. But in an application under Section 9, I can at least look into admitted documents to find out if a prima facie evidence is available to support such a claim. Therefore, I shall see from the admitted facts whether fraud and/or misrepresentation is made out or not. 81. As I have pointed out earlier, an agreement dated 7.8.2008 came into existence between the applicant and a company by name Goyal MG Gases Private Limited. Under the said agreement, Goyal MG Gases Private Limited was supposed to set up an Air Separation Plant on build, own and operate basis and also to install liquid storage tanks, vaporisers, liquid pumps etc. They should be set up by Goyal MG Gases Private Limited on a land leased out by the applicant. Under clause 7.1 of the agreement, the lease was to be for a period of 19 years. The applicant was also supposed to provide low tension power supply to Goyal MG Gases Private Limited, for erection and commissioning of the Air Separation Unit. Under Article 9, the applicant was obliged to take a minimum quantity of gas prescribed in the contract or pay for the minimum quantity to Goyal MG Gases Private Limited. 82. The above agreement was followed by a tripartite agreement between the applicant on the one hand, Goyal MG Gases Private Limited on the other hand and Punjab National Bank. By this tripartite agreement dated 25.5.2009, the applicant became obliged to deposit 60 postdated cheques of Rs.35 lakhs each with Goyal MG Gases Private Limited and they were supposed to deposit the same with Punjab National Bank. The nature of this tripartite agreement was made clear by a subsequent agreement known as "Escrow Account Agreement" dated 25.5.2009. By this tripartite agreement dated 25.5.2009, the applicant became obliged to deposit 60 postdated cheques of Rs.35 lakhs each with Goyal MG Gases Private Limited and they were supposed to deposit the same with Punjab National Bank. The nature of this tripartite agreement was made clear by a subsequent agreement known as "Escrow Account Agreement" dated 25.5.2009. Under this agreement, the parties were obliged to open an Escrow Account into which all receivables of Goyal MG Gases Private Limited had to be deposited. The Bank was given a charge over the amounts lying in the said Account. 83. Unfortunately, disputes arose between the applicant and Goyal MG Gases Private Limited, resulting in the following:- (i) Goyal MG Gases Private Limited obtaining an interim order of injunction on 26.3.2012 from the Delhi High Court under Section 9 of the Arbitration and Conciliation Act, 1996, restraining the applicant herein from purchasing gas from anybody other than Goyal MG Gases Private Limited. (ii) Goyal MG Gases Private Limited filing a claim petition before the Arbitral Tribunal, seeking several reliefs, including the reliefs of payment of amounts running to about Rs.32 crores. 84. Apart from the reliefs originally claimed, Goyal MG Gases Private Limited also made an additional claim for damages to the tune of about Rs.195 crores for the termination of the contract and a few other amounts under different heads. These arbitration proceedings are still pending. 85. During the pendency of the arbitration proceedings and when Goyal MG Gases Private Limited is in enjoyment of an order of injunction restraining the applicant herein from purchasing gas from any third party, a fresh agreement dated 17.4.2013 is entered into. In this agreement, the seller is described as "Goyal Gases Private Limited (formerly known as Goyal MG Gases Private Limited)". This agreement is signed by one Mr.K.K.Dhar, who is the very same person who signed the contract dated 7.8.2008 on behalf of Goyal MG Gases Private Limited. 86. After more than a month of the execution of the contract, the respondent puts the applicant on notice by a letter dated 21.5.2013 that the respondent is a distinct and different legal entity than Goyal MG Gases Private Limited. But without knowing this fact, the applicant files an interlocutory application in I.A.No. 2 of 2012 for deletion of certain prayers in the original claim petition filed by Goyal MG Gases Private Limited before the Arbitral Tribunal. But without knowing this fact, the applicant files an interlocutory application in I.A.No. 2 of 2012 for deletion of certain prayers in the original claim petition filed by Goyal MG Gases Private Limited before the Arbitral Tribunal. Thereafter the respondent repeatedly insist, through subsequent correspondence that both respondent are distinct and different legal entities and that there was no privity of contract between the respondent and Goyal MG Gases Private Limited. 87. All the above facts go to show that the contract dated 17.4.2013 was vitiated at least due to a misrepresentation regarding the identity of the respondent. It must be pointed out that the respondent has not taken a stand that even on 17.4.2013, they made their identity very clear. It is not the case of the respondent that only due to a typographical and clerical error they were wrongly described in the agreement dated 17.4.2013 as successors to Goyal MG Gases Private Limited. In such circumstances, the fact that the consent of the applicant was obtained to the contract dated 17.4.2013 on the basis of a misrepresentation that it was the successor in interest of Goyal MG Gases Private Limited, needs no further proof. Once it is clear that the contract dated 17.4.2013 was brought into existence on the basis of a misrepresentation on the part of the respondent, it follows as a necessary corollary that the applicant is entitled to avoid the contract. If the applicant is entitled to avoid the contract, they are entitled naturally to refuse the payments due under such a contract. This is what the applicant is seeking to do by this application. Hence, I hold that the applicant clearly has a prima facie case. 88. The most fundamental requirement of an agreement enforceable in law is consensus ad idem between the parties. When there was not even a consent as to who were the parties, I do not think that an agreement of such a nature can be enforceable by law. 89. As pointed out by the House of Lords in HOMBURG HOUTIMPORT B.V. vs. AGROSIN PRIVATE LIMITED {(2003) Vol.I Lloyd's Law Reports 571}, the identity of parties to a contract is fundamental. It is not simply a term or condition of the contract. It goes to the very existence of the contract itself. If it is uncertain, there is no contract. As pointed out by the House of Lords in HOMBURG HOUTIMPORT B.V. vs. AGROSIN PRIVATE LIMITED {(2003) Vol.I Lloyd's Law Reports 571}, the identity of parties to a contract is fundamental. It is not simply a term or condition of the contract. It goes to the very existence of the contract itself. If it is uncertain, there is no contract. This is not a case where the applicant mistook the respondent, to be the successor of another company, in their own figment of imagination. This is a case where an individual by name Mr.K.K.Dhar, who had represented Goyal MG Gases Private Limited, signed the contract dated 17.4.2013, on behalf of the respondent company representing it to be the successor in interest of Goyal MG Gases Private Limited. If the said Mr.K.K.Dhar had informed the applicant on 17.4.2013 that the respondent is a completely different and distinct entity from Goyal MG Gases Private Limited, the applicant might have even refused to enter into the agreement dated 17.4.2013. As a matter of fact, the applicant had been lured and enticed to enter into the agreement dated 17.4.2013, by giving out an impression to the applicant that the respondent was none-else than the successor in interest of Goyal MG Gases Private Limited. This is borne out by the following facts:- (i) that the very same person, who signed the contract as Authorised Signatory of Goyal MG Gases Private Limited, signed the present contract dated 17.4.2013 as the representative of the respondent also; (ii) that the respondent was described in the agreement dated 17.4.2013 as the seller; (iii) that the agreement dated 17.4.2013 gave a very clear indication that the respondent was the lessee of the land in which the Air Separation Unit was originally agreed to be set up by Goyal MG Gases Private Limited; (iv) that the agreement dated 17.4.2013 contained a covenant that the respondent had installed liquid storage tanks, vaporisers and liquid pump etc., though they were installed by Goyal MG Gases Private Limited. 90. Therefore, there was no reason for the applicant to suspect that they were entering into a contract with someone other than Goyal MG Gases Private Limited. Once this is clear, then I do not think that anything more is required to establish at least misrepresentation, if not fraud. 91. Much ado is sought to be made by the respondent about two facts. Once this is clear, then I do not think that anything more is required to establish at least misrepresentation, if not fraud. 91. Much ado is sought to be made by the respondent about two facts. They are (i) that the applicant had the benefit of return of 17 postdated cheques from the Punjab National Bank, by signing this contract dated 17.4.2013; and (ii) that the contract dated 17.4.2013 made it clear that the disputes arising out of the previous contract dated 7.8.2008 and the tripartite agreement dated 25.5.2009 remained unresolved and parties preserved their rights to fight them out. Therefore, it is contended by the respondent that irrespective of whether the respondent was the same company as Goyal MG Gases Private Limited or not, the position of the applicant remained the same. 92. But I do not think so. It is true that the applicant had handed over 60 postdated cheques to Goyal MG Gases Private Limited at the time of signing the tripartite agreement dated 25.5.2009 and the Escrow Account Agreement dated 25.5.2009. 17 out of those cheques were returned, in terms of Article 13 of the present agreement dated 17.4.2013. But as I have pointed out earlier, the value of these 17 cheques that the applicant got back, was only Rs.5.95 crores. This is in contrast to the value of the 60 postdated cheques that the applicant issued under the very same contract dated 17.4.2013, to the total tune of Rs.23.40 crores. 93. It is only because of the fact that the respondent got back 17 cheques from Goyal MG Gases Private Limited, that the applicant had been misled to believe that they are one and the same entities. If both are distinct and different legal entities and if Goyal MG Gases Private Limited had no privity of contract with the respondent, as claimed by the respondent in their letter dated 21.5.2013, the respondent could not have obtained return of those 17 postdated cheques. What the respondent or Goyal MG Gases Private Limited got in return for those 17 postdated cheques valued at Rs.5.95 crores, was about 4 times more than the same viz., 60 postdated cheques valued at Rs.23.40 crores. Therefore, even in these bargain, it was the respondent or Goyal MG Gases Private Limited who stood to benefit and not the applicant. 94. Therefore, even in these bargain, it was the respondent or Goyal MG Gases Private Limited who stood to benefit and not the applicant. 94. The answer to the question as to why the applicant could have entered into such a difficult bargain even with Goyal MG Gases Private Limited, is very simple to understand. Goyal MG Gases Private Limited had already filed a claim petition as well as an additional claim petition before the Arbitral Tribunal. The reliefs sought by Goyal MG Gases Private Limited before the Arbitral Tribunal in the first instance were as follows:- "In the light of the abovementioned facts and circumstances, it is respectfully prayed that this Hon'ble Tribunal may be pleased to grant the following claims, in favour of the claimant and against the respondent: I. An amount of Rs.6,60,45,280.11 (Rupees Six Crores Sixty Lakhs Fortyfive Thousand Two Hundred and Eighty only) to be paid to the claimant by the respondent, on account of delay in completion of civil works in accordance with the third clause of Article 14 of the contract, for the period prior to the commencement of production of gases; which includes interest @ 1.5% per month with monthly rests, from December 2010 till 30.6.2012. II. An amount of Rs.11,48,10,392.75 (Rupees Eleven Crores Forty Eight Lakhs Ten Thousand Three Hundred and Ninety Two only), to be paid to the claimant by the respondent, on account of non payment, by the respondent, of MTOP monies during the period 14.8.2011 to 30.6.2012; which includes interest @ 1.5% per annum, with monthly rests from the date of default till 30.6.2012. III. An amount of Rs.1,24,58,119.45 (Rupees One Crore Twenty Four Lakhs Fifty Eight Thousand One Hundred and Nineteen only) to be paid to the claimant by the respondent, on account of non payment, by the respondent of the price of gases consumed by it during the period December, 2010 to August, 2011; which includes interest @ 1.5% per annum, with monthly rests from the date of default till 30.6.2012. IV. IV. A direction in the nature of perpetual, permanent mandatory injunction to the respondent to replace and replenish the 60 PDCs issued under Article 14.1 of the contract, with PDCs, in favour of the claimant, for an amount of Rs.39 lakhs, in accordance with Article 14.1 of the Amendment, such that the claimant should have in its possession 60 PDCs of Rs.39 lakhs each, in its favour, at all times, upto the 10th year of the agreement. V. A direction in the nature of a perpetual, permanent mandatory injunction, to the respondent, to provide to the claimant a separate gate with free entry and exit and easementary rights for consent and unhindered access into the ASU Production Facilities, which access is approachable through main roads. VI. A direction in the nature of a perpetual, permanent mandatory injunction, to the respondent, to provide to the claimant uninterrupted power @ 3 MW per hour (operating load) at the production facilities switchboard, strictly in accordance with Article 7.3.2 of the contract; and such additional power as contemplated in Article 7.3.2 at the rates and in terms of the contract and the Amendment. VII. A direction in the nature of a perpetual, permanent mandatory injunction, to the respondent, to provide to the claimant, treated makeup water (about 5 M3/hour), firewater and drinking water of required quantity, quality, pressure as specifically required in Article 7.3.5 of the contract and at the price prescribed in Article 7.3.5 of the contract. VIII. An amount of Rs.12,90,13,808/-(Rupees Twelve Crores Ninety Lakhs Thirteen Thousand Eight Hundred and Eight only) to be paid to the claimant by the respondent, on account of losses caused to the claimant, on account of the closure of its merchant market operations under Article 29 of the contract. IX. Pendentelite interest @ 1.5 per month, with monthly rests, on the amounts of the claims Nos.I, II, III and VIII, till the date of the award. X. Future interest @ 1.5 per month, with monthly rests, on the amounts of the claim Nos.I, II, III and VIII, from the date of the award till the date of realisation and recovery thereof. XI. Perpetual permanent mandatory injunction directing the respondent to pay to the claimant the monthly MTOP amounts as provided in Article 9 of the contract, from 1.7.2012 till the date of the award. XII. XI. Perpetual permanent mandatory injunction directing the respondent to pay to the claimant the monthly MTOP amounts as provided in Article 9 of the contract, from 1.7.2012 till the date of the award. XII. Pendentelite and future escalation on W.P.I. for the period 1.7.2012 till the date of the award. XIII. Actual costs of the present proceedings, incurred by the claimant." 95. The reliefs sought by Goyal MG Gases Private Limited in their additional claim petition before the Arbitral Tribunal, were as follows:- "In the light of the abovementioned facts and circumstances, it is respectfully prayed that this Hon'ble Tribunal may be pleased to grant the following claims, in favour of the claimant and against the respondent: I. An amount of Rs.194,75,85,474 (Rupees One Hundred Ninety Four Crores Seventy Five Lakhs Eighty Five Thousand Four Hundred and Seventy Four only) to be paid to the claimant by the respondent, on account of compensation for the premature termination of the aforesaid contract, dated 7.8.2008, which has been caused directly by the respondent's deliberate and persistent breach of the contract dated 7.8.2008. The said amount is payable in accordance with Article 16 read with Article 25 of the contract, dated 7.8.2008, for the balance period of the contract i.e., from 14th September 2012 to 12th December 2025 along with interest @ 1.5% per annum, with monthly rests from the date of default till the date of payment. II. A direction in the nature of a perpetual, permanent mandatory injunction, to the respondent, to provide to the claimant a separate gate with free entry and exit into the Production Facilities, approachable through main roads, in terms of Article 16(iv) of the contract, for dealing with the Production Facility in any manner as may be deemed necessary by the claimant. III. An amount of Rs.3,96,59,62,251 (Rupees Three Hundred Ninety Six Crores Fifty Nine Lakhs Sixty Two Thousand Two Hundred and Fifty One only), being the loss suffered by the claimant on account of the closure of its merchant market operations under Article 29 of the contract dated 7.8.2008, due to the termination of the said contract; which has been caused by the breaches of the contract, committed by the respondent alone. IV. IV. An amount of Rs.3,80,77,545 (Rupees Three Crores Eighty Lakhs Seventy Seven Thousand Five Hundred and Forty Five only) to be paid to the claimant by the respondent, on account of non payment, by the respondent, of MTOP monies during the period 10.7.2012 to 14.9.2012; along with interest @ 1.5% per annum, with monthly rests from the date of default till the date of payment. V. Actual costs of the present proceedings, incurred by the claimant." 96. Therefore, by entering into the agreement dated 17.4.2013, the applicant could have imagined (even if it was only imagination) that a major part of their dispute or problem would get resolved. That the applicant could have gained such an impression, is also confirmed by the application I.A.No.2 of 2012 that they filed before the Arbitral Tribunal on 23.5.2013 for declaring some of the reliefs sought by Goyal MG Gases Private Limited as infructuous. The reliefs that the applicant wanted to be declared as having become infructuous, in their application in I.A. No.2 of 2012, are as follows:- "3. This respondent submits that the parties have entered into a new contract signed on 17.4.2013 and fresh PDC's have been handed over by this respondent to the claimant. The claimant have returned 17 number of cheques to the respondent. In the light of the above prayer "A" in the application has become redundant and infructuous. In so far as relief sought for in prayer "B" is concerned in the light of the new contract as in aforementioned the parties have exchanged draft of the land lease agreement and thus the relief does not survive. 4. The present statement is being preferred to place that the relief sought for in prayer "A" & "B" of the application has become infructuous pursuant to the parties signing the new contract dated 17.4.2013. This respondent in light of the above facts that recently arose is filing the new contract dated 17.4.2013, draft of the cancellation of land lease agreement and draft of the new land lease agreement and prays that this Hon'ble Tribunal may be pleased to take the aforementioned memo in record and pass such further or suitable orders." 97. Therefore, it is clear that by entering into a fresh contract on 17.4.2013 with the very same party viz., Goyal MG Gases Private Limited, the applicant had thought that they could make some prayers as infructuous right there. Therefore, it is clear that by entering into a fresh contract on 17.4.2013 with the very same party viz., Goyal MG Gases Private Limited, the applicant had thought that they could make some prayers as infructuous right there. They also thought that some more prayers retained in the original and additional claim petition filed by Goyal MG Gases Private Limited, could be made infructuous, by working out the contract dated 17.4.2013. This is for the reason that Goyal MG Gases Private Limited had claimed damages for the whole period of their contract, that was to run upto the year 2025. If Goyal MG Gases Private Limited itself had been the contracting party to the agreement dated 17.4.2013 and if the contract dated 17.4.2013 had run its course fully without any impediment, Goyal MG Gases Private Limited, would not stand a chance of getting any compensation at least for the period from 17.4.2013 to 31.12.2025. 98. Therefore, entering into a fresh contract with the very same party viz., Goyal MG Gases Private Limited, was beneficial to the applicant in two ways. They are (i) if the fresh contract dated 17.4.2013 had worked out smoothly, a major portion of the claim of Goyal MG Gases Private Limited before the Arbitral Tribunal would have certainly become infructuous and (ii) alternatively if the fresh contract dated 17.4.2013 had also gone into difficulties, they would not have been able to make two claims for damages in respect of the very same period from the very same party. Therefore, the applicant is right in contending that they only wanted to enter into a fresh contract with the very same party, as it was expected to bring some concrete benefit to them. 99. But at the same time, the agreement dated 17.4.2013 was not entered into by the parties, for the purpose of resolving all the disputes that had arisen upto that date. In other words, it was not a novation of the original contract. On account of the failure of the applicant under the old contract dated 7.8.2008, for whatever reasons, it was not expected of Goyal MG Gases Private Limited, to put an end to all the earlier disputes and to terminate the arbitration, by entering into a fresh contract. That was the least that the parties could have bargained for. On account of the failure of the applicant under the old contract dated 7.8.2008, for whatever reasons, it was not expected of Goyal MG Gases Private Limited, to put an end to all the earlier disputes and to terminate the arbitration, by entering into a fresh contract. That was the least that the parties could have bargained for. Therefore, the parties had agreed to have the fresh contract dated 17.4.2013 without prejudice to the rights and claims in respect of the earlier contracts. The clauses contained in the agreement dated 17.4.2013 that the rights under the previous contracts are not to be frustrated or prejudiced by the new contract, are intended to ensure that the parties are not put back to their original position whenever there was a failure of the second contract also. 100. To put it differently, it was not intended by both parties to enter into a contract dated 17.4.2013 and to have all previous disputes wiped out and the arbitral proceedings completely terminated. Both parties had suspicion about each other. Therefore, it was natural for both parties to retain the rights under the old contract and to incorporate a "without prejudice" clause in the new contract. This does not mean that the parties intended to have two sets of disputes, one under the old contract and another under the new contract. The clause "without prejudice to the rights under the old contract", was not intended and cannot be interpreted to be intended to have effect even if the fresh contract worked itself out very well. The said clause can be seen only as a clause in terrorem to compel the applicant to perform its obligations under the new contract. If it was not intended to be a clause in terrorem, Goyal MG Gases Private Limited would actually reap two benefits, one under the old contract by way of damages for the very same period from the very same party and another under the new contract either by supplying gas and getting the price therefor at the same rate or by claiming damages for the very same period. Therefore, I do not think that the "without prejudice" clause was intended to bring such a disastrous result as sought to be projected by the respondent. Hence, I hold that the applicant has a prima facie case in his favour. BALANCE OF CONVENIENCE AND IRREPARABLE HARDSHIP: 101. Therefore, I do not think that the "without prejudice" clause was intended to bring such a disastrous result as sought to be projected by the respondent. Hence, I hold that the applicant has a prima facie case in his favour. BALANCE OF CONVENIENCE AND IRREPARABLE HARDSHIP: 101. The question of balance of convenience and irreparable hardship can be tested very easily in the case on hand. The test for determining in whose favour balance of convenience lies, is very simple. The Court has to find out what would happen if an interim order is granted, but the applicant fails in the final adjudication or what would happen if no interim order is granted, but the applicant succeeds in the final adjudication. 102. In this case, if an interim order is granted, the respondent may not be able to encash the cheques. In the event of the applicant failing before the Arbitral Tribunal in their claim, the respondent may have apprehension that they may not be able to recover the amount. But even if an interim order is not granted, I do not think that the applicant is going to honour the cheques, going by the serious disputes between the parties pending all over. Therefore, the respondent will not be better off by my refusal to grant an interim order. 103. On the contrary, if an interim order is refused and the applicant succeeds, the applicant would have been put to irreparable loss and hardship either in the form of being forced to pay the value of the cheques or being forced to face other proceedings. Therefore, the balance of convenience is clearly in favour of the applicant. 104. The applicant will suffer irreparable loss and hardship, if an injunction is not granted. This is for the reason that the applicant is already facing a claim for the very same period from Goyal MG Gases Private Limited. It must be remembered that the cheques in question do not represent the value of gas supplied by the respondent. The cheques represent the amount that the applicant is liable to pay towards what is known as "MTOP" (Minimum Take or Payment). In other words, the cheques represent only liquidated damages. The respondent has not done anything under the present agreement dated 17.4.2013. The cheques represent the amount that the applicant is liable to pay towards what is known as "MTOP" (Minimum Take or Payment). In other words, the cheques represent only liquidated damages. The respondent has not done anything under the present agreement dated 17.4.2013. As a matter of fact, the respondent had chosen to describe itself as the seller and as the person who set up the liquid storage facility, vaporisers etc. But these actions were done by Goyal MG Gases Private Limited. Therefore, the respondent will not be put to any hardship much less irreparable hardship, if the parties to go back to the position in which they were before the contract dated 17.4.2013. If the cheques in question are allowed to be encashed by the respondent, the respondent would be enriching themselves unjustly, without having done anything in pursuance of the contract dated 17.4.2013, but by simply falling back upon the facilities installed by Goyal MG Gases Private Limited. Therefore, the applicant passes the third test also. Hence the applicant alone will suffer irreparable loss and hardship if an injunction is not granted. 105. Thus I find that the applicant has a prima facie case and balance of convenience in their favour and that the applicant will suffer irreparable loss and hardship if injunction is not granted. 106. However, there is one more issue that requires to be sorted out. It is about the 17 postdated cheques that the applicant received under the contract dated 17.4.2013. It is only by entering into this contract dated 17.4.2013 that the applicant got back 17 postdated cheques, each of a value of Rs.35 lakhs lying with Goyal MG Gases Private Limited. Once the agreement dated 17.4.2013 is assailed as void or at least voidable, the applicant is not entitled to retain the benefit that accrued under such an agreement. If there had been no agreement dated 17.4.2013, the applicant should have either honoured those 17 cheques or at least faced prosecution for dishonouring those cheques. The applicant cannot take away this benefit. Therefore, I am of the view that by granting a conditional order of injunction, the parties can be put back to the position in which they were before entering into the contract dated 17.4.2013. 107. The applicant cannot take away this benefit. Therefore, I am of the view that by granting a conditional order of injunction, the parties can be put back to the position in which they were before entering into the contract dated 17.4.2013. 107. In view of the above, the application is allowed to the following effect:- (i) There will be an interim order of injunction restraining the respondent from presenting the 60 postdated cheques bearing Nos.504016 to 504075 and from taking any action in pursuance thereof; (ii) However, within a week of receipt of a copy of this order, the applicant shall return to Goyal MG Gases Private Limited, 17 postdated cheques bearing Nos. 688444 to 688460. If the applicant fails to comply with this order, they will not have the benefit of the order of injunction. 108. The application is allowed on the above terms. However, there will be no order as to costs.