JUDGMENT : 1. This civil miscellaneous appeal is preferred against order dated 10.12.2020 passed in IA No. 1065 of 2017 in OS No. 173 of 2017 by the XVI Additional District and Sessions Judge-cum-III Additional Family Court, Malkajgiri, Ranga Reddy District. 2. The appellants herein are defendants in the suit. The suit filed by the respondents 3. The said suit is a summary suit filed by the respondents/plaintiffs under Order XXXVII of the Code of Civil Procedure (CPC) against the appellants/defendants for : (i) Recovery of a sum of Rs. 2,49,50,000/- with interest thereon at 15% p.a. from the date of suit till realization; (ii) Charge on the plaint schedule property till the amount is repaid by the appellants to the respondents; (iii) Charge on the lease rentals being paid by the tenants of the plaint schedule property to the appellants on the said property; (iv) Directing the Sub-Registrar, Malkajgiri, not to entertain any sale transaction relating to the plaint schedule property and also direct them not to undertake any registration/lease till the entire dues of the respondents are cleared; (v) Directing all the tenants to arrange payments of the monthly rentals to the respondents account only and to forbid the appellants from pledging or mortgaging any of the said property till the dues of the respondents is liquidated. 4. The 1st appellant is a Company registered under the Company's Act, 1956 of which the 2nd appellant was the Director. The appellants had entered into a Development Agreement-cum-GPA on 28.7.2008 (Document No. 3258/2008) with the land owners relating to a theater complex situated at Malkajgiri, Hyderabad. 5. The respondents contended that the appellants informed the respondents that they have subsequently, entered into an MoU on 20.10.2010 with the land owners wherein the sharing ratio of the super built up area and other terms and conditions for the execution/completion of the project were agreed upon; that the appellants are entitled for 50% of the super built up area in all floors except 3rd and 4th floors and 60% of the super built up area in 3rd and 4th floors, which comes to the total area of 55,618 Sq.ft. towards the share of the appellants. 6. The respondents contended that they were made to believe the above facts by the appellants and the respondents then entered into two agreements of sale with the appellants on 27.8.2011 for purchase of 35,379 Sq.ft. towards the share of the appellants. 6. The respondents contended that they were made to believe the above facts by the appellants and the respondents then entered into two agreements of sale with the appellants on 27.8.2011 for purchase of 35,379 Sq.ft. and 20,339 Sq.ft. respectively of the super built up area alongwith proportionate share in the land in the proposed complex for Rs. 14.04 crores and Rs. 9.36 crores respectively, totalling to Rs. 23.40 crores. 7. The respondents contended that they paid the appellants an advance of Rs. 4.61 crores, the receipt of which was also acknowledged by the appellants, and that as per the terms of the agreements entered into between the parties, the appellants have to pay interest on the amounts received from the respondents at 15% per annum from the date of payment till the execution and registration of sale deeds in respect of the said property in favour of the respondents. 8. According to the respondents, the appellants had agreed to complete the construction of the complex within a period of 18 months from the date of the agreement with a grace period of 3 months and that the appellants were also under obligation to complete the construction and hand over physical possession of the extent of the property agreed and sold by the appellants to the respondents within the time period agreed and stipulated in the above agreements. 9. The respondents contended that the appellants had miserably failed to fulfill the terms of the agreements and failed to complete even the construction of the complex and did not hand over possession of the same to the respondents as per the terms of the agreements. 10. It is contended by the respondents that on account of the said facts, the respondents suffered a huge financial loss and inconvenience; there were discussions between the appellants and the respondents and it was mutually agreed by them that the agreements of sale dated 27.8.2011 would stand cancelled and the appellants should refund the amounts received under the said agreements under a fresh Memorandum of Understanding (for short, 'MoU') dated 13.12.2013. It is contended by the respondents that under the MoU, the following schedule was fixed for refund of the amounts : (a) On 13.12.2013 Rs.1,00,00,000/- (b) On 20.01.2014 Rs.1,20,00,000/- (c) On 20.02.2014 Rs.1,20,00,000/- (d) On 20.01.2014 Rs.1,20,00,000/- (e) On 20.03.2014 Rs.1,20,00,000/- 11. It is contended by the respondents that under the MoU, the following schedule was fixed for refund of the amounts : (a) On 13.12.2013 Rs.1,00,00,000/- (b) On 20.01.2014 Rs.1,20,00,000/- (c) On 20.02.2014 Rs.1,20,00,000/- (d) On 20.01.2014 Rs.1,20,00,000/- (e) On 20.03.2014 Rs.1,20,00,000/- 11. It is contended that the respondents had agreed to receive the said amounts without any interest if the refunds are made as per the schedule, and it was implied that in default of the appellants paying the amounts agreed, the respondents would also entitled for the said amounts with interest thereon as agreed. 12. The respondents alleged that the appellants did not repay the amounts as per the schedule except making part payment of Rs. 2,11,50,000/- and the balance amount of Rs. 2,49,50,000/- was not paid. 13. The respondents issued legal notice dated 8.12.2015 to which the appellants gave a reply notice dated 30.12.2015. 14. Thereafter, the respondents filed on 13.12.2016, the suit for recovery of this amount with interest at 15% per annum from the date of the suit till realization after to the appellants claiming the said amount with interest. IA No. 1065 of 2017 15. After receiving summons, the appellants filed IA No. 1065 of 2017 invoking Section 8 of the Arbitration and Conciliation Act, 1996. 16. In the said application, the appellants contended that though the agreements of sale had been entered into between the respondents and the appellants on 27.8.2011, the respondents never paid the amounts under the said agreements and did not perform their part of the contract under the agreements. 17. They alleged that the respondents exerted pressure and under the threat of coercion, got executed the MoU dated 13.12.2013. 18. Alternatively, according to the appellants, the MoU was executed and the amounts were agreed to be returned without prejudice to the rights and contentions of the appellants, and that the same forms part and parcel of the agreements dated 27.8.2011. They then referred to the arbitration clause containing in Clause 27/29 of the agreements dated 27.8.2011 which provided for any dispute or difference arising out of or in connection with the performance or obligations under the agreements shall be resolved by arbitration in terms of the Arbitration and Conciliation Act, 1996 with the place of arbitration at Hyderabad. 19. They then referred to the arbitration clause containing in Clause 27/29 of the agreements dated 27.8.2011 which provided for any dispute or difference arising out of or in connection with the performance or obligations under the agreements shall be resolved by arbitration in terms of the Arbitration and Conciliation Act, 1996 with the place of arbitration at Hyderabad. 19. It is the contention of the appellants that since the respondents are claiming rights under the MoU dated 13.12.2013, as per the last clause contained therein the said MoU forms part and parcel of the agreements of sale dated 27.8.2011, and so the arbitration clause is deemed to be subsisting and the parties are governed by the said clause. 20. They contended that the respondents in the suit did not disclose about subsistence of the arbitration clause in the agreements of sale dated 27.8.2011 and played fraud on the Court. 21. Other contentions such as MoU dated 13.12.2013 being inadmissible under Section 35 of the Stamps Act and also the Registration Act, 1908, are raised in addition to the suit being barred under Section 8 of the Arbitration and Conciliation Act. 22. This application was filed on 28.8.2017. 23. By that date, no application for leave to defend was filed inspite of expiry of the period of 10 days from the date of service of Judges' summons in the suit. Counter of respondents in IA No. 1065 of 2017 24. Counter-affidavit was filed in IA No. 1065 of 2017 by the respondents pointing out that the appellants did not enter appearance within 10 days of service of notice; judgment summons were also issued to the appellants and they received the summons and did not file any application for leave to defend under Order XXXVII CPC. 25. According to them, the instant application cannot be entertained as they did not file any application for leave to defend within the stipulated time. 26. It was also pointed out that in the reply notice dated 30.12.2015 the appellants had admitted that they entered into the MoU and agreed to refund the amounts received by them under the agreements of sale. 27. 26. It was also pointed out that in the reply notice dated 30.12.2015 the appellants had admitted that they entered into the MoU and agreed to refund the amounts received by them under the agreements of sale. 27. It was, therefore, contended that unless the suit amount was deposited into the Court by the appellants under Order XXXVII CPC, they were not entitled to raise any defence or file IA No. 1065 of 2017 and so the said I.A. has to be dismissed. 28. It was also pointed out that the appellants admitted about the execution of MoU in the reply notice dated 30.12.2015 with their free consent and will and so they were estopped from contending that the MoU was obtained under coercion or under threat. 29. They also contended that there is no whisper in the reply notice dated 30.12.2015 given by the appellants about the alleged coercion or threat to their lives etc., while executing MoU and that the said defence was false defence. 30. It was then contended that once the MoU was entered into cancelling the agreements of sale, and the appellants had agreed to refund the amounts paid by the respondents under the said agreements of sale, the arbitration clause had no relevancy and had become redundant. 31. They also contended that the dispute arising under the agreements of sale is not arbitrable. IA Nos. 1064 and 1066 of 2017 filed by appellants 32. The appellants had also filed IA No. 1064 of 2017 for stay of proceedings of the suit till disposal of the IA No. 1065 of 2017. 33. Apart from that, the appellants had also filed IA No. 1066 of 2017 for rejection of plaint under Order VII Rule 11 CPC. The events after filing of IA No. 1065 of 2017 and the first order passed therein 34. While these applications were pending, there was a change in the Presiding Officer of the Court of the XVI Additional District and Sessions Judge, Ranga Reddy District at Malkajgiri in June, 2019. 35. Thereafter, both parties were not ready for hearing of IA No. 1065 of 2017 on 4.7.2019. On 20.8.2019, the appellants were absent, but the respondents were present. While these applications were pending, there was a change in the Presiding Officer of the Court of the XVI Additional District and Sessions Judge, Ranga Reddy District at Malkajgiri in June, 2019. 35. Thereafter, both parties were not ready for hearing of IA No. 1065 of 2017 on 4.7.2019. On 20.8.2019, the appellants were absent, but the respondents were present. The matter underwent several adjournments thereafter and on 10.3.2020, the XVI Additional District and Sessions Judge, Ranga Reddy District at Malkajgiri heard the respondents and treated the appellants as heard and posted the matter for orders. 36. In the meantime, there was lockdown imposed by the State and Central Governments on account of Covid-19 pandemic. 37. On 15.7.2020, the order was pronounced in IA No. 1065 of 2017, four months after the matter was heard and reserved. 38. On the same day, IA No. 1066 of 2017 filed by the appellants for rejection of plaint, invoking Order VII Rule 11 CPC, was also dismissed. 39. Consequent to the dismissal of IA No. 1065 of 2017, IA No. 1064 of 2017 was also dismissed. CMA No. 392 of 2020 40. Challenging the order dated 15.7.2020 in IA No. 1065 of 2017, the appellants filed CMA No. 392 of 2020 before this Court contending that since the order was pronounced on 15.7.2020, four months after the arguments were heard on 10.3.2020, and it is not possible for the Presiding Officer of the Court below to remember the contentions raised by the parties after lapse of such time and since the appellants were also not heard on 10.3.2020 or on earlier date, the matter must be remanded back to the Court below for hearing and passing orders afresh. Order dated 12.11.2020 in CMA No. 392 of 2020 41. After issuing notices to the respondents and after hearing both sides, the said CMA was allowed on 12.11.2020 and the order dated 15.7.2020 in IA No. 1065 of 2017 in OS No. 173 of 2017 was set aside; and the said I.A., was remanded back to the XVI Additional District & Sessions Judge, Ranga Reddy District at Malkajgiri for fresh considering on merits. This Court directed the appellants to appear and argue the matter before the Court below on 18.11.2020 and the Court below was directed to hear the respondents and then again pass orders on or before 15.12.2020. This Court directed the appellants to appear and argue the matter before the Court below on 18.11.2020 and the Court below was directed to hear the respondents and then again pass orders on or before 15.12.2020. The impugned order dated 10.12.2020 in IA No. 1065 of 2020. 42. After remand, the Court below heard both sides and dismissed the IA No. 1065 of 2017 on 10.12.2020. 43. After referring to the contentions of both parties and noting that the suit filed was a summary suit for recovery of money with interest at 15% per annum as per the MoU entered into by the parties after execution of the agreements of sale on 27.8.2011, the Court below observed that the appellants, having received the judgment summons in the summary suit, did not file any application for leave to defend, but filed IA No. 1065 of 2017 and IA No. 1066 of 2017. 44. However, it held that even if leave to defend application was not filed, the application under Section 8(1) of the Arbitration and Conciliation Act, 1996, would be maintainable. 45. It them took note of the fact that the appellants had filed in November, 2020, IA No. 497 of 2020 under Order XXXVII Rule 3 CPC seeking leave to defend unconditionally. 46. It then considered the arbitration clause under agreements of sale dated 27.8.2011 and held that the summary suit is not filed basing on such agreements of sale, but it was filed Ion the basis of the MoU dated 13.12.2013; as per the averments in the MoU, discussions and meetings took place between the parties to the agreements of sale and they decided to treat the existing agreements of sale dated 27.8.2011 as inconsequential and invalid for the reasons that the terms and conditions had not been entirely met, and thereby the appellants agreed to repay the amount estimated to the respondents/plaintiffs. 47. It then referred to the contentions of the appellants that though the agreements of sale were cancelled, the arbitration clause would survive because the MoU is in continuation of the earlier agreements of sale warranting reference of the matter to the Arbitrator, but rejected the same on the ground that the parties had not agreed that such arbitration clause would be part of the MoU. 48. 48. It distinguished the decisions cited by the appellants by pointing out that the existence of the MoU was not disputed by the appellants, that though the obligations under the agreements of sale were not performed, the appellants did not go for arbitration, but resolved their differences with the respondents and agreed to return the amounts to the respondents. It also noted that in the reply notice given by the appellants, they did not dispute the existence of the MoU or that it was entered into by them with their free consent and will but only in IA No. 1065 of 2017, more than three years after the MoU was executed for the first time, plea of coercion, threat and pressure apart from fraud was raised. It observed that fraud is one of the categories of dispute which are normally treated as non-arbitrable and followed the judgment in A. Ayyaswamy v. A. Paramasivam and others, 2016 (6) ALD 146 (SC) : (2016) 10 SCC 386 . 49. It then referred to sub-sections (1) and (2) of Section 8 of the Arbitration and Conciliation Act, 1996 and held that for a reference to Arbitration, the subject-matter of the suit must be same as the subject-matter of the agreements of sale, but such was not the case before it because the agreements of sale pertain to purchase of property that was alleged to fall to the share of the appellants in view of the agreement with the original land owners, whereas the subject-matter of the suit was based on a Memorandum of Understanding dated 13.12.2013; and the subject-matter of the suit is not the same as the subject-matter of the agreements of sale; and so it cannot be referred to arbitration before the Arbitrator. 50. It also took note of the fact that IA No. 1066 of 2017 filed by the appellants for rejection of plaint under Order VII Rule 11 CPC was dismissed and no Revision had been preferred against it by the appellants and held that since the issue of Section 8 of the Arbitration and Conciliation Act, 1996 was also raised in the said application, the principle of res judicata will apply. The present Appeal 51. Challenging the same, the present appeal is filed by the appellants. 52. The present Appeal 51. Challenging the same, the present appeal is filed by the appellants. 52. Sri Sharad Sanghi, learned Counsel for the appellants, contended that as per the recitals in the MoU dated 13.12.2013, the MoU formed part and parcel of the agreements of sale dated 27.8.2011 and therefore, the arbitration Clause 27/29 contained in the agreements of sale would also become part of the MoU. According to him, the last sentence in the MoU "Please understand that this letter forms part and parcel of our existing agreement with you and will be considered as such" is important and it was not taken note of by the Court below. He contended that the appellants had paid entire amount due to the respondents as agreed and there has been a reference in the plaint to the agreements of sale between the parties at several places including the paragraph dealing with limitation and cause of action; and so, one of the causes of action for filing the instant suit is also the agreements of sale dated 27.8.2011. He reiterated that the arbitration clause in the original agreements of sale dated 27.8.2013 continues to be in force even when the MoU dated 13.12.2011 was entered into. According to him there was no novation of contract and the Trial Court erred in holding that the subject-matter of MoU dated 13.12.2013 was not the subject-matter of the earlier agreements of sale dated 27.8.2011. The consideration by the Court 53. From the facts noted above, it is clear that the appellants had entered into agreements of sale with the respondents on 27.8.2011 agreeing to sell 35,379 Sq.ft. and 20,239 Sq.ft. of super built up area for Rs. 23.40 crores, which the appellants would get pursuant to the Development Agreement-cum-GPA dated 28.7.2008 entered into by the appellants with the land owners and under a later MoU dated 20.10.2010 entered into by them with the original land owners of the Theater complex at Malkajgiri, Hyderabad. 54. No doubt, Clause 27/29 of the agreements of sale stated that "any dispute or difference arising out of, or in connection with the performance of the obligations under the agreement shall be resolved by arbitration in terms of Arbitration and Conciliation Act, 1996 and the place of arbitration is Hyderabad". 55. 54. No doubt, Clause 27/29 of the agreements of sale stated that "any dispute or difference arising out of, or in connection with the performance of the obligations under the agreement shall be resolved by arbitration in terms of Arbitration and Conciliation Act, 1996 and the place of arbitration is Hyderabad". 55. The primary purpose of the agreements of sale was transfer of title of the super built up area which the appellants would get from the land owners under the Development Agreement-cum-GPA entered into by them with the land owners on 28.7.2008 and the subsequent agreement dated 20.10.2010. 56. As per the terms of the agreements of sale, the construction of the complex was to be completed in 18 months with grace period of 3 months and the area offered for sale to the respondents should be handed over within the said period only. 57. As per Clauses 4 and 3 respectively of the said agreements of sale, the appellant had agreed to pay interest @ 15% per annum from the date of payment till execution and registration of sale deeds in favour of the respondents. 58. The respondents alleged in the summary suit that after the agreements of sale were entered into on 27.8.2011, they had paid Rs. 4.61 crores as advance, but the appellants did not fulfill the terms of the agreements and did not complete even the construction of the complex and also did not hand over the possession of the same to the respondents as per the terms of the agreements. It is their contention that MoU dated 13.12.2013 was then entered into between the parties after deliberations between them. 59. The terms of the MoU are set out below : "This has reference to the ongoing discussions and meetings held between us till date. We thank you for the kind courtesies extended to us till date. We may inform you that at the last meeting held between us, it was decided to treat the existing agreements of sale dated 27.8.2011 and 27.8.2011 by and between us and your good selves as inconsequential and invalid for reasons that the terms and conditions had not been entirely met, putting us into great inconvenience and difficulty. We may inform you that at the last meeting held between us, it was decided to treat the existing agreements of sale dated 27.8.2011 and 27.8.2011 by and between us and your good selves as inconsequential and invalid for reasons that the terms and conditions had not been entirely met, putting us into great inconvenience and difficulty. As a measure of our transparent polices, we are pleased to commit to you that the amounts paid by you till date on these agreements will be returned to you without prejudice. The schedule of payments envisaged by us is as follows: 1. On 13.12.2013 Rs. 1,00,00,000/- (One crore only) 2. On 20.1.2014 Rs. 1,20,00,000/- (One crore twenty lakhs only) 3. On 20.2.2014 Rs. 1,20,00,000/- (One crore twenty lakhs only) 4. On 20.3.2014 Rs. 1,20,00,000/- (One crore twenty lakhs only) We may clarify that the amounts pertain to the funds remitted to us, and no interest payments are envisaged. Similarly, as a measure of our good relations, the interest component for the delayed payments on your part is also foregone. In the circumstances, please sign a copy of this letter accepting the finality of cancellations to our existing agreements, so that we may take he next step. Please understand that this letter forms part and parcel of our existing agreements with you and will be considered as such. The above is been accepted." (Emphasis supplied) 60. A reading of the above MoU clearly indicates that the parties had decided to treat the agreements of sale dated 27.8.2011 as inconsequential and invalid i.e., that they had decided to abandon the same and treated them as null and void and absolved themselves of the obligations under the said agreements subject to the appellants refunding the amounts as per the schedule mentioned therein. It was agreed that if by the dates mentioned in the MoU, the installments of the refunds as stipulated in the MoU are paid, no interest payment would be envisaged. 61. Prima facie, in our considered opinion there has been novation of the agreements of sale dated 27.8.2011 by the execution of MoU dated 13.12.2013 between the parties. 62. It was agreed that if by the dates mentioned in the MoU, the installments of the refunds as stipulated in the MoU are paid, no interest payment would be envisaged. 61. Prima facie, in our considered opinion there has been novation of the agreements of sale dated 27.8.2011 by the execution of MoU dated 13.12.2013 between the parties. 62. While the obligation under the agreements of sale was for the appellants to sell the share of built up area of super structure in favour of the respondents and pay interest at 15% per annum on the advances paid till execution of the sale deeds, the obligations under the MoU dated 13.12.2013, were totally different. 63. Firstly, there is no longer an obligation on the appellants to transfer any immovable property to the respondents and the obligation to pay interest @ 15% p.a. on the advances received which was contained in the agreements of sale dated 27.8.2011 was also altered while stipulating that no interest would be paid if the agreed installments of refund are paid on specific dates by the appellants. By implication, according to the respondents, the levy of interest thereon was contemplated only if there is default on the part of the appellants in complying with the said obligation by the dates specified in the MoU. 64. Thus the terms of the MoU dated 13.12.2013 are different from that of the agreements of sale dated 27.8.2011. They have been completely altered. 65. Therefore, we reject the contention of the Counsel for the appellants that there was no novation of contract by the execution of the MoU dated 13.12.2013 and that the terms and conditions of the agreements of sale dated 27.8.2011 continue to survive. 66. No doubt, in the last sentence of the MoU it was mentioned as under : "Please understand that this letter forms part and parcel of our existing agreements with you and will be considered as such". 67. When the primary intention under the MoU was to invalidate/render void the agreements of sale dated 27.8.2011 between the parties, and thus, the agreements of sale were rendered ineffective and were abandoned, the question of MoU forming part and parcel of the said agreement does not arise. It does not make sense. 67. When the primary intention under the MoU was to invalidate/render void the agreements of sale dated 27.8.2011 between the parties, and thus, the agreements of sale were rendered ineffective and were abandoned, the question of MoU forming part and parcel of the said agreement does not arise. It does not make sense. The word "existing agreements" used in the last sentence of the MoU therefore has no effect because under the MoU, the agreements of sale dated 27.8.2011 had been invalidated and rendered void and so they no longer "existed". 68. This sentence and the main terms of the MoU are mutually contradictory and in our opinion this sentence has to be treated as having no effect at all and would not keep subsisting any obligation under the original agreements of sale dated 27.8.2011 including the arbitration clause contained in Clause 27/29 thereof. 69. If the parties really intended any clause such as arbitration clause to subsist even after entering into the MoU on 13.12.2013, they should have specified it expressly. By implication it cannot be said that only the arbitration clause was intended to be made to survive the invalidation/cancellation of the agreements of sale and not all other clauses. 70. In this context we may refer to Section 8 of the Arbitration and Conciliation Act, 1996. It states : "8. By implication it cannot be said that only the arbitration clause was intended to be made to survive the invalidation/cancellation of the agreements of sale and not all other clauses. 70. In this context we may refer to Section 8 of the Arbitration and Conciliation Act, 1996. It states : "8. Power to refer parties to arbitration where there is an arbitration agreement.--1[(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 to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] (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: [Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application alongwith a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.] (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." 71. The original agreements of sale dated 27.8.2011 containing Arbitration clauses were admittedly produced by the appellants themselves in the Court below. Therefore, sub-section (2) of the Section 8 of the Arbitration and Conciliation Act was already fulfilled. 72. In P. Anand Gajapati Raju v. P.V.G. Raju, 2000 (4) ALD 46 (SC) : (2000) 4 SCC 539 , he Supreme Court held as follows : "5. Therefore, sub-section (2) of the Section 8 of the Arbitration and Conciliation Act was already fulfilled. 72. In P. Anand Gajapati Raju v. P.V.G. Raju, 2000 (4) ALD 46 (SC) : (2000) 4 SCC 539 , he Supreme Court held as follows : "5. The conditions which are required to be satisfied under sub-sections (1) and (2) of Section 8 before the Court can exercise its power are: (1) there is an arbitration agreement; (2) a party to the agreement brings an action in the Court against the other party; (3) subject-matter of the action is the same as the subject-matter of the arbitration agreement; (4) the other party moves the Court for referring the parties to arbitration before it submits its first statement on the substance of the dispute." 73. Thus, for application of Section 8, subject-matter of the suit ought to be the same as the subject-matter of the arbitration agreement. If not, Section 8 cannot be invoked and the Civil Court cannot be stopped from hearing the suit. 74. In our opinion, in the instant case, the prerequisites for an application under Section 8 of the Arbitration and Conciliation Act are not fulfilled. Consequently, the Civil Court has jurisdiction to entertain the suit and application under Section 8 of the Arbitration and Conciliation Act has to be rejected. 75. Though Counsel for appellants sought to rely on the judgment in Hema Khatter and another v. Shiv Khera, 2017 (4) ALD 85 (SC) : (2017) 7 SCC 716 , there is a finding of fact in that case that the oral agreement between appellant No. 2 and respondent was substituted in place of the prior written agreement dated 6.6.2009, that it contained a clause for arbitration, and the same clause for arbitration would also be applicable to the oral agreement; and the subject-matter of the suit was same as the subject-matter of the arbitration agreement and the prerequisites for an application under Section 8 were fulfilled, unlike in the instant case. In that context, an observation was made that if an agreement is terminated by one party on account of breach committed by the other, merely because agreement has come to an end by its termination, the arbitration clause does not perish. In that context, an observation was made that if an agreement is terminated by one party on account of breach committed by the other, merely because agreement has come to an end by its termination, the arbitration clause does not perish. These observations cannot be read out of context and applied to the instant case where there was no oral agreement subsequent to the written MoU and specifically no particular clause in the cancelled agreements of sale dated 27.8.2011 were made part of the MoU. 76. In Today Homes and Infrastructure Pvt. Ltd. v. Ludhiana Improvement Trust and another, 2013 (6) ALD 31 (SC) : (2014) 5 SCC 68 , cited by the Counsel for appellants, the Supreme Court held that notwithstanding the main agreement itself being declared void, the arbitration agreement would stand independent of the main agreement and did not necessarily become otiose, even if the main agreement, of which it is a part, is declared void. But, in the instant case, the main agreements dated 27.8.2011 are not void and the subsequent MoU dated 13.12.2013 entered into between the parties novated/substituted the initial contracts dated 27.8.2011 for the purchase and sale of property into a contract for repayment of the received amount. Therefore, the principle laid down in this decision also does not apply. 77. The decision in Shakti Concrete Industrial Ltd. and others v. HBL Power Systems Ltd. and others, 2020 (6) ALD 69 (TS), cited by the Counsel for the appellants, also does not apply because in that case the original agreement was entered into by the parties on 30.9.2009 which provided for arbitration, but there was a supplementary agreement dated 13.3.2010 which contained a special clause that "parties hereto agree that this supplementary agreement shall constitute an integral part of the original agreement". Unlike in the instant case, in that case there was only a modification in the supplementary agreement of the number of shares to be sold as agreed in the original agreement. In the instant case, the parties had cancelled the original agreements dated 28.7.2011 in toto and entered into the MoU for refund of the amounts paid by the respondents to the appellants during the subsistence of the original agreements dated 28.7.2011; and stipulated new timelines for the appellants to make refund to the respondents without interest. In the instant case, the parties had cancelled the original agreements dated 28.7.2011 in toto and entered into the MoU for refund of the amounts paid by the respondents to the appellants during the subsistence of the original agreements dated 28.7.2011; and stipulated new timelines for the appellants to make refund to the respondents without interest. Thus, the MoU dated 13.12.2013 totally replaced the original agreements of sale dated 28.7.2011 and it was not a mere modifications of the said agreements. There was a new contract between the parties under the Mou dated 13.12.2013 for payment by the appellants to the respondents instead of sale of immovable property. So, this decision is also distinguishable. 78. Even the decision in Avinash Hi-Tech City 2 Society and others v. Boddu Manikya Malini and another, 2020 (1) ALD 32 (SC) : (2019) 8 SCC 666 , has no application because in the said case the question was whether the arbitration Clause 19 of the Addendum would also bind the appellant No. 1 which was a co-developer, and a finding of fact was recorded that it binds the developers, owners, societies and the original owners and even subsequent societies formed. Its facts are entirely distinguishable and the principle therein is not attracted to the instant case. 79. The clause in the MoU stating that 'this letter forms part and parcel of our existing agreements with you', can also be looked at from another angle. Clause 25/27 of the Agreement of sales dated 27.8.2011 provides that the agreement 'may be amended, modified or supplemented only by a written instrument'. As the parties have arrived at an understanding that the existing agreements of sale would be 'inconsequential and invalid', and committed to return the amounts specified therein, the parties desired that by accepting to the terms of MoU, termed as letter, 'finality of cancellations to our existing agreements', can be achieved. The cancellation of agreement of sale under the MoU-letter, cannot therefore be construed as a mere amendment or modification, whereby the clause relating to reference to Arbitration in case of dispute, can be said to survive. On the other hand, the endeavour of the parties in entering into MoU-letter, appears to resolve the dispute by arriving at an understanding, without taking recourse to Arbitration, as a prudent business decision. On the other hand, the endeavour of the parties in entering into MoU-letter, appears to resolve the dispute by arriving at an understanding, without taking recourse to Arbitration, as a prudent business decision. Thus, it can safely be construed that the parties desired to make the said MoU-letter as part and parcel of the agreement of sale, only for the limited purpose of giving effect to cancellation thereby relieving the parties from performing their respective obligations, except for the payment and receipt of monetary consideration specified therein. 80. The decision in Vidya Drolia and others v. Durga Trading Corporation, considered the question 'Whether landlord-tenant disputes governed under the provisions of the Transfer of Property Act, 1882 are arbitrable or not?', and concluded that such disputes are arbitrable. It also held that even if allegations of fraud are made, the same can be subject-matter for arbitration. It held : "229. Before we part, the conclusions reached, with respect to Question No. 1, are: a. Sections 8 and 11 of the Act have the same ambit with respect to judicial interference. b. Usually, subject-matter arbitrability cannot be decided at the stage of Section 8 or 11 of the Act, unless it is a clear case of deadwood. c. The Court, under Sections 8 and 11, has to refer a matter to arbitration or to appoint an arbitrator, as the case may be, unless a party has established a prima facie (summary findings) case of non-existence of valid arbitration agreement, by summarily portraying a strong case that he is entitled to such a finding. d. The Court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above, i.e., 'when in doubt, do refer'. e. The scope of the Court to examine the prima facie validity of an arbitration agreement includes only: (i) Whether the arbitration agreement was in writing? Or (ii) Whether the arbitration agreement was contained in exchange of letters, telecommunication, etc."? (iii) Whether the core contractual ingredients qua the arbitration agreement were fulfilled? (iv) On rare occasions, whether the subject-matter of dispute is arbitrable?" (Emphasis supplied) 81. Or (ii) Whether the arbitration agreement was contained in exchange of letters, telecommunication, etc."? (iii) Whether the core contractual ingredients qua the arbitration agreement were fulfilled? (iv) On rare occasions, whether the subject-matter of dispute is arbitrable?" (Emphasis supplied) 81. Thus, the Supreme Court held that normally subject-matter arbitrability cannot be decided at the stage of Section 8 or 11 of the Act, unless it is a clear case of dead-wood, i.e., when there is no doubt that the subject-matter is non-arbitrable. 82. In our considered opinion, the instant case falls in the above category and consequently we hold that application under Section 8 of the Arbitration and Conciliation Act, 1996 filed by the appellants is misconceived and the same was rightly dismissed by the Court below. 83. We therefore do not find any merit in the appeal, and it is accordingly dismissed. 84. As a sequel, miscellaneous petitions pending if any, in this civil miscellaneous appeal, shall stand closed.