ORDER 1. This application under section 11 of the Arbitration and Conciliation Act, 1996 is for appointment of the independent arbitrator for resolving the dispute between the parties. 2. In brief, the case of applicant is that a tripartite agreement dated 1.9.1999 was executed between applicant and respondents and in terms of the clause 12 of the tripartite agreement, the dispute between the parties is to be settled by panel of arbitrators and since the dispute exists therefore, the applicant had sent the notice dated 24.3.2009 for appointing a panel of arbitrators for resolving the dispute but the respondents had not appointed the arbitrator therefore, he has filed the present application. 3. Respondent No.1 by filing the reply has opposed the application raising the plea that tripartite agreement dated 1.9.99 does not survive since subsequently at the request of applicant the loan amount was bifurcated between the applicant and three other institutions and in respect of liability of applicant separateseparate agreement and other documents were executed on 27.3.2002 therefore, the tripartite agreement dated 1.9.99 had come to an end. A further plea has been raised that in terms of the order of this Court passed in WP No.8960/09 the matter is pending before the arbitration council. 4. Respondent No.2 has also filed a separate reply stating that the applicant was extended financial assistance in the year 1997 and by way of mutual agreement sum of the dues amounting to Rs.5.73 crores were assigned to respondent No.1 and accordingly tripartite agreement was signed. The outstanding amount of Rs.3.45 crores was retained by respondent No.2 for recovery from the applicant and the applicant had committed default therefore, the sole arbitrator was appointed and no objection was taken by the applicant in arbitration proceedings and the arbitrator has passed the award dated 15.1.2003 directing the applicant and its guarantor to pay a sum of Rs.3.87 crores jointly and severely. Since the present dispute is about the liability which was assigned to respondent No.1 therefore, respondent No.2 is not concerned with the present dispute. 5. Having heard the learned counsel for the parties and on perusal of the record, it is found that the applicant is seeking appointment of arbitrator on the basis of tripartite agreement dated 1.9.99 but the said agreement does not survive on account of subsequent development. 5. Having heard the learned counsel for the parties and on perusal of the record, it is found that the applicant is seeking appointment of arbitrator on the basis of tripartite agreement dated 1.9.99 but the said agreement does not survive on account of subsequent development. The reply of respondent No.1 reveals that under tripartite agreement a sum of Rs.5,73,35,489/- was payable by the applicant to respondent No.1. At the instance of applicant, the said liability was bifurcated between the applicant, STI international Limited, STI Finance Limited and STI Product India Limited which is clear from the letters of applicant dated 27.3.2002 and 30.3.2002 filed as Annexure R/2 alongwith the reply of respondent No.1. Thus, the applicant continued to be liable to pay sum of Rs.3,87,75,000/- to respondent No.1 and other three companies noted above had taken over the liability of the remaining amount. The applicant thereafter had executed fresh agreement dated 27.3.2002 with respondent No. 1 in respect of liability of Rs.3,87,75,000/-. Necessary documents in this regard are filed as Annexure R/3 with the reply of respondent No.1. 6. The above facts clearly reveal that tripartite agreement dated 1.9.99 did not survive on account of subsequent development and execution of fresh agreement dated 27.3.2002. Thus, it is not open to the applicant to seek appointment of arbitrator under the agreement dated 1.9.99 which does not survive now. 7. The Supreme Court in the matter of National Insurance Company Ltd. v. Boghara Polyfab Pvt. Ltd., reported in (2009)1 SCC 267 has held that an arbitration agreement contained in a contract cannot be invoked to seek reference of any dispute to arbitration, interalia where parties to the contract by mutual agreement, accept performance of altered, modified and substituted obligations and confirm in writing the discharge of contract by performance of the altered, modified or substituted obligations. It has further been held that a validly executed contract may put an end by the parties and substitute a new contract for it, solely governing their rights and liabilities and in such an event, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it. 8. It has further been held that a validly executed contract may put an end by the parties and substitute a new contract for it, solely governing their rights and liabilities and in such an event, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it. 8. The respondent has also raised the plea that in respect of transaction between applicant and respondent No.1, the suit is maintainable under section 56 of Madhya Pradesh Swayatta Sahkarita Adhiniyam, 1999 and that writ petitions No.8960/09, 8958/09 and 8959/09 filed by applicant and other companies (to whom the partial liability is assigned) wherein this Court by order dated 22.4.2010 had disposed of the writ petitions giving liberty to the applicant to submit a preliminary objection before the arbitration council and a direction was issued to the arbitration council to decide preliminary objection. The application filed before this Court reveals that the proceedings are already pending before the arbitration council. 9. Keeping in view the aforesaid aspect of the matter, I am of the view that the prayer made by the applicant for appointment of arbitrator on the basis of arbitration clause contained in tripartite agreement dated 1.9.99 cannot be allowed, since the agreement itself does not survive on account of subsequent development and execution of the fresh agreement. Thus, the application filed under section 11 of the Act is rejected. Rohit Gupta for applicant; Sharad Panwar for respondent No.1; Umesh Gajankush for respondent No.2.