JUDGMENT : Anubha Rawat Choudhary, J. This Appeal has been filed against the order dated 14th September 2022 passed by the learned Presiding Officer, Commercial Court, Ranchi in Original Suit No. 188 of 2020 (re-numbered as Commercial Suit No. 78 of 2022) whereby the prayer for rejection of plaint filed by the respondents (hereinafter referred to as the defendants) has been allowed. The petition so allowed was numbered as Misc. Civil Application No. 317 of 2022. 2. The petition involved in the present case was filed by the defendants before the learned Commercial Court under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as CPC) and also under section 5 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act of 1996) praying for dismissal of the suit alleging that the suit was barred by law. Such prayer was made in the light of the invocation of the arbitration clause in terms of the agreement dated 12th June 2014 read with orders dated 27th October 2021 and 18th November 2021 passed by Hon’ble Delhi High Court in the arbitration petition filed by the defendants under section 11(6) of the Act of 1996. The petition under section 11(6) of the Act of 1996 was allowed by the Hon’ble Delhi High Court and an arbitrator was appointed for adjudication of the dispute between the parties which was followed by a procedural order dated 07th December 2021 by the Arbitral Tribunal. 3. The aforesaid petition was filed primarily on the ground that there was a valid arbitration clause between the parties contained in the agreement dated 12th June 2014 and in view of section 5 of the Act of 1996 there is a clear embargo on intervention by judicial authority except where so provided by the Act of 1996. It was asserted that on account of the arbitration clause for resolution of disputes between the parties, the suit itself was not maintainable and the plaint was fit to be rejected. It was asserted that on account of the arbitration clause for resolution of disputes between the parties, the suit itself was not maintainable and the plaint was fit to be rejected. It was also asserted in the petition that notice dated 13th August 2020 invoking arbitration clause and calling upon the appellant (hereinafter referred to as the plaintiff) to appoint an arbitrator to settle the dispute between the parties was issued by the defendants to the plaintiff prior to the filing of the suit and the arbitral proceeding had already commenced in view of section 21 of the Act of 1996. The plaintiff refused to comply with the notice and vide reply dated 02nd September 2020 the plaintiff completely denied its liability towards the defendants. A reference was also made, inter alia, to the judgment passed by the Hon’ble Supreme Court in “Hindustan Petroleum Corpn. Ltd. v. Pink city Midway Petroleums” (2003) 6 SCC 503 to submit that it has been held by Hon’ble Supreme Court that the language of section 8 of the Act of 1996 is peremptory in nature and, therefore, in cases where there is an arbitration clause in the agreement, it was obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement and, therefore, if there is an arbitration clause it was mandatory for the Civil Court to refer the dispute to an arbitrator. 4. The plaintiff objected to the aforesaid petition. It was asserted that the petition filed under Order VII Rule 11 of the CPC was neither maintainable in law nor on facts and none of the grounds as contemplated under Order VII Rule 11 of the CPC was attracted. It was also asserted that the dispute in the suit was outside the purview of the agreement. An objection was also taken to the effect that on 05th January 2022, one similar petition filed earlier under section 8 read with section 5 of the Act of 1996 read with Order VII Rule 11 of the CPC was withdrawn by the defendants by endorsing “not pressed” and, therefore, the application was barred by the principles of res judicata, waiver, estoppel and acquiescence. 5. 5. The learned Commercial Court allowed the petition by a reasoned order dated 14th September 2022 whose operative portion is quoted as under: “Thus, from the fore going analysis it can be safely stated that the Civil Procedure Code is not an exhaustive Act in itself and it will have to be read in consonance with other laws to give effect to the matter connected thereto. Here, in the Arbitration and Conciliation Act, 1996 Section 5 clearly bars intervention by judicial authority. When there is arbitration going on, then on the same set of facts and the same set of agreement two parallel proceedings cannot be allowed to go on for the ends of Justice. Order VII Rule 11 of the CPC deals with rejection of plaint and sub section (d) envisages that plaint is to be rejected where the suit appears from the statement in the plaint to be barred by any law. Admittedly that two proceeding cannot be allowed to go on. Of the two proceedings, arbitration proceeding is efficacious and Hon’ble High Court has already appointed the arbitrator and both sides have appeared. Accordingly, the prayer of defendant/petitioner for rejection of plaint is allowed. Accordingly, the plaint stands rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908. All the petitions namely petition filed under Order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure, 1908 stands disposed off in view of this order. In the circumstances, the parties shall bear own cost. Accordingly, in view of this, the suit is disposed off and the same be consigned to the record room.” 6. The present Appeal has been filed on 18th November 2022. 7. The suit was filed on 02nd September 2020 vide affidavit dated 31st of August 2020 before the learned Commercial Court for the relief mentioned in paragraph no. 35 of the plaint as follows: “35. The plaintiff prays for the following reliefs: - (a) a decree for declaration that the agreement dated 12.06.2014 is void, and the same was not acted upon by the parties and the same is not enforceable in the eye of law. (b) a decree for further declaration that the addendum purportedly dated 06.06.2015 is illegal fraudulent void and not binding upon the plaintiff. (b) a decree for further declaration that the addendum purportedly dated 06.06.2015 is illegal fraudulent void and not binding upon the plaintiff. (c) a decree for an amount of Rs.20 crore with 12% interest to be paid to the plaintiff company by the defendant company towards damage, compensation towards loss of trade, business and goodwill and reputation and toward unfair trade practice etc. (d) a decree for refund of Rs.3.60 Crore calculated upto 15.12.2018 with accrued interest till date by passing a preliminary decree in the form of interim order towards payment and satisfaction of the claim of the plaintiffs on ad-hoc basis out of the total amount of Rs.20 Crores as claimed in prayer (c) above. (e) an order for appointment of scientific investigation commissioner and/or special officer by appointment of an export for enquiry and report regarding nature and condition of the defective and condemned rids, equipments lying at “Rock Garden” premises to be submitted before this Learned Court and for passing appropriate order for removal of the condemned rides and equipments from Rock Garden premises at the cost and expenses of the defendants. (f) a decree for mandatory injunction directing the investigating commissioner/special officer to be appointed by this Learned Court for causing immediate inventory and commission of the condemned rides/equipments ext. lying in the Rock Garden premises and passing appropriate and necessary order upon the commissioner for taking custody of the aforesaid rides/equipments etc. lying in the said premises, at the cost of the defendants and remove the same from the Rock Garden premises of the plaintiff for satisfying the claim of the plaintiff raised in the instant suit. (g) a decree for Permanent injunction restraining the defendants, their men and agents from selling transferring and from forcibly removal of the condemned rides and equipment etc. lying in Rock Garden premises till satisfaction of the claim of the plaintiff and/or from giving effect and/or further effect to letter dated 14.02.2020 and 14.03.2020 till disposal of the suit. (h) for appointment of inventory commissioner/special officer to prepare a list of articles and rides, to not nature and conditions thereof, stag them in a safe place at the cost of defendant by removing the same from plaintiffs premises-Rock Garden at the cost to be incurred by the defendant. (i) leave under order 2 rule – 2 of the Code of Civil Procedure. (i) leave under order 2 rule – 2 of the Code of Civil Procedure. (j) a decree for all cost of the suit and litigation expenses. (k) such further order/orders as your honour may deem fit and proper.” Some developments during the pendency of this Appeal 8. During the course of the hearing of this case, it has been jointly informed to this Court by the learned counsels for the parties that the learned arbitrator to whom the dispute was referred for arbitration vide order passed by Hon’ble Delhi High Court under section 11(6) of the Act of 1996 during the pendency of the suit has passed the arbitral award on 24th August 2023. Submissions of Plaintiff 9. The learned counsel appearing on behalf of the plaintiff has submitted that on account of the passing of the aforesaid arbitral award, some of the prayers made in paragraph no. 35 of the plaint of the suit filed before the learned Commercial Court have become infructuous as they were the subject matter of consideration before the learned arbitrator. 10. With respect to prayer in paragraph no. 35(a) of the plaint, the learned counsel for the plaintiff submits that the same does not survive anymore as it was the subject matter of consideration before the learned arbitrator. 11. With respect to prayer in paragraph no. 35(b) of the plaint, the learned counsel for the plaintiff submits that it relates to an addendum dated 06th June 2015 to the agreement dated 12th June 2014 and the dispute in connection with the addendum survives in the suit. 12. With respect to prayer in paragraph no. 35(c) of the plaint, the learned counsel for the plaintiff submits that neither the agreement dated 12th June 2014 nor the addendum dated 06th June 2015 was acted upon, and, therefore, the plaintiff is seeking compensation. So far as prayer made in paragraph no. 35(d) is concerned, the same is a prayer for a preliminary decree which forms a component of prayer no. 35(c). 13. With respect to other reliefs, the learned counsel for the plaintiff has submitted that the dispute does not survive anymore in the suit. 14. So far as prayer made in paragraph no. 35(d) is concerned, the same is a prayer for a preliminary decree which forms a component of prayer no. 35(c). 13. With respect to other reliefs, the learned counsel for the plaintiff has submitted that the dispute does not survive anymore in the suit. 14. The learned counsel for the plaintiff submits that on account of subsequent developments, the plaintiff may be required to amend the plaint, but rejection of the plaint under Order VII Rule 11 of the CPC read with section 5 of the Act of 1996 is not justified. The learned counsel has also submitted that at the stage of consideration of the petition, the learned Commercial Court was only required to consider the plaint and the documents annexed with the plaint. There was no occasion for the learned Commercial Court to consider any other document. The learned counsel has submitted that the learned Commercial Court has erred in law by taking into consideration the subsequent developments which had taken place and were placed on record by the defendants. A plea of res-judicata has also been raised submitting that the earlier petition for the same and similar relief was withdrawn on 05th January 2022 by stating “not pressed” and, therefore, the fresh petition was not maintainable. Submissions of the Defendants 15. The learned counsel for the defendants has submitted that there is no infirmity in the impugned order. Admittedly, the award has already been passed during the pendency of this case and as per the submission of the plaintiff, most of the reliefs prayed for in the suit have become infructuous on account of the passing of the arbitration award. There is no dispute that there was an arbitration clause in the agreement dated 12th June 2014 and so far as the addendum dated 06th June 2015 is concerned, the agreement dated 12th June 2014 itself provides for amendment of the agreement and the entire dispute arising out of the agreement as well as the addendum was subject matter of consideration before the learned arbitrator. He submits that a petition under section 16 of the Act of 1996 was also filed by the plaintiff before the learned arbitrator and the plaintiff had also filed counter-claim before the learned arbitrator. 16. He submits that a petition under section 16 of the Act of 1996 was also filed by the plaintiff before the learned arbitrator and the plaintiff had also filed counter-claim before the learned arbitrator. 16. On the plea of res-judicata, the learned counsel has submitted that the earlier petition which was ‘not pressed’ was filed under section 8 read with section 5 of the Act of 1996 read with Order VII Rule 11 along with section 151 of the CPC so that the suit be not entertained and the dispute be referred for arbitration in terms of the arbitration clause in the agreement between the parties. Since the Hon’ble Delhi High Court allowed the petition filed under section 11(6) of the Act of 1996, the earlier petition seeking reference of the dispute to arbitration had become infructuous and it was “not pressed”. The learned counsel submits that after the order passed by the Hon’ble Delhi High Court appointing an arbitrator, the suit was required to be taken to a logical end as the suit itself was barred by law right from inception. Accordingly, another petition was filed under Order VII Rule 11 of CPC read with section 5 of the Act of 1996 on the ground that the suit was barred by law. The learned counsel has submitted that the plaint was, inter alia, accompanied by the letter dated 13th August 2020 which was a letter invoking the arbitration clause and the suit was filed on 02nd September 2020. As the arbitration clause was already invoked prior to the filing of the suit, the arbitration proceedings had already commenced as per section 21 of the Act of 1996. The suit was filed only to frustrate the arbitral proceedings and defeat the mandate of the Act of 1996 by resorting to clever drafting. The learned counsel has relied on several judgments and in particular, has referred to the following judgments: - a. “K. Akbar Ali Vs. K. Umar Khan and others” (2021) 14 SCC 51 ; b. “Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums”, (2003) 6 SCC 503 c. “Ayyasamy v. A. Paramasivam and others”, (2016) 10 SCC 386 . Findings of this Court Point for consideration 17. K. Umar Khan and others” (2021) 14 SCC 51 ; b. “Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums”, (2003) 6 SCC 503 c. “Ayyasamy v. A. Paramasivam and others”, (2016) 10 SCC 386 . Findings of this Court Point for consideration 17. After hearing the learned counsel for the parties, the point for determination in the present Appeal is as under: - “Whether the learned Commercial Court has rightly allowed the petition filed by the defendants under Section 5 of the Act of 1996 read with Order VII Rule 11 of CPC by holding that the suit was barred by law?” Scope of Order VII Rule 11 CPC 18. Order VII Rule 11 of the CPC is quoted as under: “11. Rejection of plaint. —The plaint shall be rejected in the following cases— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9: Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamppapers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.” 19. The scope of examination of the plea seeking rejection of the plaint under Order VII Rule 11 of the CPC has been considered by the Hon’ble Supreme Court in the judgment in “K. Akbar Ali Vs. The scope of examination of the plea seeking rejection of the plaint under Order VII Rule 11 of the CPC has been considered by the Hon’ble Supreme Court in the judgment in “K. Akbar Ali Vs. K. Umar Khan and others” (2021) 14 SCC 51 wherein it has been held that the plaint has to be read as a whole and clever drafting creating an illusion of a cause of action is not permitted in law. It has also been held that while considering the petition under Order VII Rule 11 of the CPC it is open to the Court to read even the terms of the power of attorney along with the plaint in the same manner as documents appended to the plaint which form part of the plaint. Paragraph nos. 5 to 9 of the aforesaid judgment are quoted as under: “5. It is well settled that while considering an application under Order 7 Rule 11 CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order 7 Rule 11 CPC, the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant. 6. In this case, the petitioner-plaintiff has, as stated above, asserted that the power of attorney was given to Mr Zahir Ali to maintain and administer the suit property. There is no assertion in the plaint that the power of attorney authorised Mr Zahir Ali to execute any preemption agreement. 7. In any case, an application under Order 7 Rule 11 CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC Ltd. v. Debts Recovery Appellate Tribunal, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly, the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Similarly, the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order 7 Rule 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court. 8. In this case, a meaningful reading of the plaint as a whole makes it abundantly clear that the relief claimed in the suit is barred in view of the restricted scope of the power of attorney given by the first defendant to Mr Zahir Ali. 9. Where on the face of the averments in the plaint, the claim in a suit is based on an agreement executed through a power of attorney holder, the Court is not debarred from looking into the power of attorney. It is open to the Court to read the terms of the power of attorney along with the plaint in the same manner as documents appended to the plaint, which form part of the plaint.” 20. In view of the aforesaid judgment, the averments in the plaint along with the documents filed with the plaint are required to be considered. 21. As per the plaint, the plaintiff and the defendants entered into an agreement on 12th June 2014, inter alia, for the supply of amusement rides/games worth Rs. 1.46 crores and it was agreed that the supply was on revenue sharing basis and the profit was to be shared 40% to plaintiff and 60% to defendants. Paragraph no. 7 of the plaint is quoted as under: “7. That the Plaintiff and defendants entered into a contract on 12.06.2014 (herein after referred as the said agreement) and specifically mentioned in the schedule below. In the said agreement the Defendants had agreed to supply Amusement rides/games approx. of value 1.46 Crores. It was further agreed that the supply of equipments was on revenue sharing basis i.e. the profit will be shared 40% to Plaintiffs and 60% to the Defendants. That by bare reading of the contract dt. 12.06.2014, it will be evident that there is no clause for any sell and purchase of the Amusement rides/games at all. It was further agreed that the supply of equipments was on revenue sharing basis i.e. the profit will be shared 40% to Plaintiffs and 60% to the Defendants. That by bare reading of the contract dt. 12.06.2014, it will be evident that there is no clause for any sell and purchase of the Amusement rides/games at all. It was incumbent upon the Defendants that they will install all the Amusement rides/games and make it operational and after commissioning of the same, the revenue generated by the said Amusement rides / games shall be shared.” 22. It has been stated in paragraph no. 8 of the plaint that a refundable security deposit of Rs. 20 lakhs was paid by the plaintiff to the defendants on the date of the agreement. It was the case of the plaintiff in paragraph no. 10 of the plaint that the plaintiff incurred huge expenses, but the defendants failed to supply amusement rides/games in terms of the contract and rather, the defendants had supplied old, un-functional, and used equipment and failed to make them operational. The specific case as per the plaint was that the plaintiff discharged all its obligations as per the agreement dated 12th June 2014, but the defendants failed and neglected to comply with their part and consequently, the theme park Rock Garden at Ranchi could not operate and the plaintiff could not earn a single penny from the rides and incurred huge losses. It was alleged that the defendants committed a gross breach of contract. It was the further case of the plaintiff in paragraph no. 20 of the plaint that the defendants sent a termination notice dated 14th February 2020 on false and fabricated grounds just to save their skin. It was also the case of the plaintiff in paragraph no. 21 of the plaint that the defendants, with their ill motive to defame the plaintiff’s reputation, sent a letter to RRDA on 04th March 2020 based on false and concocted facts. 23. It was the case of the plaintiff in paragraph no. 22 of the plaint that the contract was never acted upon right from its inception. It remained a void and dormant contract and, therefore, there was no occasion on the part of the defendants to terminate the contract dated 12th June 2014. 24. In paragraph no. 23. It was the case of the plaintiff in paragraph no. 22 of the plaint that the contract was never acted upon right from its inception. It remained a void and dormant contract and, therefore, there was no occasion on the part of the defendants to terminate the contract dated 12th June 2014. 24. In paragraph no. 26 of the plaint, it was stated that the defendants sought to create a frivolous cause of action and claims by issuing several letters and correspondences by involving third parties and Ranchi Regional Development Authority (RRDA) to settle alleged disputes. It was further stated that the third parties and RRDA are not parties to the contract dated 12th June 2014 and, accordingly, the dispute involved was not arbitrable. 25. It was further averred in paragraph no. 27 of the plaint that the addendum dated 06th June 2015 to the agreement dated 12th June 2014 was illegal, fraudulent, void, and without any authority and not binding upon the parties nor the same was acted upon in any manner whatsoever. It was averred in the plaint that the addendum was not executed between the parties and it was fraudulent. In paragraph no. 27 itself, it was stated that the addendum dated 06th June 2015 mentioned in the letter dated 14th February 2020 issued by the defendants was forged. The plaintiff denied the execution of the addendum and vide its letter dated 30th June 2020 had asked for a duly executed copy of the addendum which was not handed over in spite of repeated requests. 26. Paragraph nos. 26 and 27 of the plaint are quoted as under: “26. That in consequence of Defendants letter dt. 14.02.2020 and 14.03.2020, the R.R.D.A. served a notice dated 22.06.2020 along with letter of the Defendants seeking clarifications from the Plaintiff. It appears that by letter dated 14.03.2020 the defendant requested R.R.D.A. Authority to help them in realizing alleged money due from plaintiff company. The said letter dated 14.02.2020, 14.03.2020, 22.06.2020 are specifically described in the schedule below. Thus the conduct of the defendants company is very much clear that by issuing several letters and correspondences, the defendant company has sought to create a frivolous cause of action and claim by involving third parties and R.R.D.A. to settle alleged dispute allegedly made by defendant of plaintiff/company and the defendants/company. Thus the conduct of the defendants company is very much clear that by issuing several letters and correspondences, the defendant company has sought to create a frivolous cause of action and claim by involving third parties and R.R.D.A. to settle alleged dispute allegedly made by defendant of plaintiff/company and the defendants/company. That the said third parties and R.R.D.A. are not parties to the contract date 12-06-2014 and accordingly the alleged dispute involved as mentioned above is not an arbitrable dispute. 27. That after receiving the notice of R.R.D.A, the Plaintiff came to know that the Defendants have made false allegations of fraud and defendants inter-alia alleged that illegal activities are being carried out by the Plaintiff in Rock garden. The plaintiff further state that the alleged addendum dated 06.06.2015 mentioned in schedule below is illegal, fraudulent, void and without any authority and not binding upon the parties nor the same was acted upon in any manor whatsoever. The same was not executed between parties. The particulars of the fraud inter- alia involved are pleaded below in seriatim:- (a) That the advance/security amount to be provided within stipulated period as per annexure-1 was not provided inspite of contract and mandate which is fraudulent. (b) That the rides proposed to be installed as per the agreement dated 12.06.2014, were not installed and only some defective rides were placed which were never made operational. (c) There was never any commissioning of the installation of rides by the team and mechanical engineer of the defendants at site. (d) That no certificate of any such commissioning has been handed over to the plaintiff till date. (e) First time in termination letter it has been alleged that there are out sourcing of rides. That since execution of the agreement, not a single correspondence shows such allegation. Moreover, the discharge of mechanical and technical team was with M/S Prakash Amusement Rides and Fun World Private Limited i.e. the defendant No. 1, who never cared to provide the said facilities, so as to make the rides operational, on contrary with malafide motive for first time alleged allegation against plaintiff. (f) That the correspondence since execution of the agreement extracts makes evident that there was never deputation of mechanical team, who discharged duty in recurring way. (f) That the correspondence since execution of the agreement extracts makes evident that there was never deputation of mechanical team, who discharged duty in recurring way. (g) That till issuance of termination notice and with the execution of agreement in the year 2014 in the midst between there has been series of communication and correspondence through mail e-mail, Telephone etc. discussing other avenue in respect of the park for running of rides. However, all those communications, discussions, correspondences, mails e-mails, etc. were never acted upon by the parties and accordingly all such acts were futile inasmuch there was never any contract in respect thereto. (h) On 15.12.2018, the defendants received plaintiff's company's demand notice pertaining to loss suffered for an amount of Rs. 3.60 crore and despite receipt of the demand, the losses as assessed, and raised as per letter dated 15.12.2018 were never re-imbursed and on flimsy pretext the defendant gained time for years for re- imbursement and ultimately almost after two years later, by termination letter dated 14.02.2020 turned around and adopted a deceptive way to escape the re-imbursement and on contrary raised sham dispute raising a purported and evasive claim of the defendants own just to by-pass demand existing as against the defendants. (i) That the complaint lodged before R.R.D.A. dated 14.02.2020 and 14.03.2020 is made with malafide and ulterior design and motive and to cause huge loss to the business of the plaintiff company. This is for a malafide purpose to damage and defame the plaintiff company in the eye of R.R.D.A., which ultimately would lead to loss of business trade and goodwill of plaintiff company and the plaintiff have every doubt that the defendant company is hand in gloves in collusion with the third party for extraneous purposes and upon taking recourse to unfair trade practice. The said attempts also are with the oblique and malafide motive to invite R.R.D.A. for taking some actions against the plaintiff company so as to cause loss of trade and business and goodwill of the plaintiff company and to defame the plaintiff company in the eyes of public at large and defame the company in the eyes of Government Authority. The said attempts also are with the oblique and malafide motive to invite R.R.D.A. for taking some actions against the plaintiff company so as to cause loss of trade and business and goodwill of the plaintiff company and to defame the plaintiff company in the eyes of public at large and defame the company in the eyes of Government Authority. (j) In the facts stated above there are serious issues of fraud, deception, unfair trade practice and severe factor with malafide intention perpetrated by defendant so as to ruin the business and goodwill of the plaintiff company and with a malafide intent to cause and diminish the wide name and fame of the plaintiff company and its trade and business. These acts are further instance of unfair trade practices as the defendant company used the alleged agreement not for the purpose for which it was created but the same was used as tool/weapon to cause loss of business of plaintiff as a whole by inviting the R.R.D.A. and to maligning the plaintiff company in the eyes of Govt. authority and to ruin the future prospect of the plaintiff company with R.R.D.A. (k) The aforesaid facts mentioned herein above are the instances of fraud, perpetrated by the defendant company and the act of the defendant company in issuing successive letter dated 14.02.2020, 14.03.2020 and 13.08.2020 issued to addressee mentioned therein goes outside the ambit of the contract and the dispute and issues raised herein by the plaintiff are required to be decided by competent civil court in the instant suit. (1) That the forged addendum dated 06.06.2015 has been mentioned in the letter dated 14.02.2020. The plaintiff denied execution of such fraudulent document, and through its letter dated 30.06.2020 asked for a duly executed copy of the same which was not handed over and the defendant fraudulently concealed the said document ignoring repeated request of the plaintiff.” 27. The plaint was accompanied by a number of documents mentioned in the schedule to the plaint. The Schedule to the plaint is quoted as under: “Item No. 1 An award of Rs. 16.40 Crores calculated towards plaintiffs business loss of trade goodwill reputation and toward cost and expenses incurred by plaintiff to be payable by defendants. Item No. 2 A decree for an amount of Rs. The Schedule to the plaint is quoted as under: “Item No. 1 An award of Rs. 16.40 Crores calculated towards plaintiffs business loss of trade goodwill reputation and toward cost and expenses incurred by plaintiff to be payable by defendants. Item No. 2 A decree for an amount of Rs. 3.60 Crore calculated upto 15.12.2018 as per claim dated 15.12.2018 with accrued interest till realization and final payment made to plaintiff. Item No. 3 All the rides/equipment and articles placed by the defendant company lying in the Rock Garden Premises. Item No. 4 Agreement dated 12.06.2014 Item No. 5 Purported addendum dated 06.06.2015 Item No. 6 Letter dated 14.02.2020 issued by defendant company. Item No. 7 Letter dated 14.03.2020 issued by defendant company. Item No. 8 Letter dated 13.08.2020 issued by defendant company.” 28. This Court finds that the entire dispute involved in the plaint arose out of the agreement dated 12th June 2014 whose execution is not in dispute. The dispute also involves an alleged addendum dated 06th June 2015, which is an addendum to the agreement dated 12th June 2014. This Court also finds that as per the averments made in the plaint, the allegation of fraudulent execution of the addendum dated 06th June 2015 is essentially a matter between the parties and it is not in dispute that the alleged addendum was in connection to the agreement dated 12th June 2014 which admittedly has an arbitration clause for resolution of the dispute between the parties. 29. The plea of the defendants was that the suit itself was barred by law on account of the existence of an arbitration clause in the agreement between the parties. 30. Clause 8.2 of the agreement dated 12th June 2014 provides for the resolution of disputes between the parties through Arbitration; clause 8.7 enables modification of the agreement. Clauses 8.2.1 and 8.7 of the agreement dated 12th June 2014 are quoted as under: - “8.2 Arbitration 8.2.1 If any dispute, claim or action shall at any time arise between the Parties with respect to the meaning or effect of or interpretation of any clauses of this Agreement or the rights or obligations of the Parties hereto hereunder, then such a question or dispute shall be referred to the Arbitration of a sole arbitrator to be appointed jointly by the Parties. In the event of the Parties not being able to concur on the appointment of a sole arbitrator, such sole arbitrator shall be appointed in the manner provided for in Arbitration and Conciliation Act, 1996. The provisions of the Arbitration and Conciliation Act, 1996, or any enactment, modification or re-enactment thereof shall govern such arbitration. The award of the Arbitrator shall be final and binding on the Parties hereto. 8.7 Amendments No change or modification of this Agreement shall be valid unless the same shall be in writing and signed by all Parties.” 31. The letter dated 13th August 2020 invoking the arbitration clause includes disputes arising out of the agreement dated 12th June 2014 as well as the addendum dated 06th June 2015 to the agreement dated 12th June 2014. The said letter dated 13th August 2020 was annexed with the plaint. 32. This Court finds that all the reliefs in the plaint arising out of the main agreement dated 12th June 2014 and the alleged addendum dated 06th June 2015 to the agreement dated 12th June 2014. The plaintiff admits receipt of the letter dated 13th August 2020 invoking the arbitration clause. Under section 21 of the Act of 1996, the arbitral proceedings would be deemed to commence from the date of receipt of the notice. 33. In the judgment passed by the Hon’ble Supreme Court in “Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums” (2003) 6 SCC 503 it has been clearly held that in view of the mandatory language of section 8 of the Act of 1996, the Courts ought to refer the dispute to arbitration on account of the existence of arbitration clause. 34. Paragraph nos.13 and 14 of the aforesaid judgment are quoted as follows: - “13. A perusal of this clause clearly shows that the parties to the Dealership Agreement had agreed to refer their dispute arising out of the Agreement, of whatever nature it may be, to an arbitrator as contemplated in that Agreement. Section 8 of the Act in clear terms mandates that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement to refer such parties to arbitration, the language of this section is unambiguous. 14. Section 8 of the Act in clear terms mandates that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement to refer such parties to arbitration, the language of this section is unambiguous. 14. This Court in the case of P. Anand Gajapathi Raju v. P.V.G. Raju has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that if, as contended by a party in an agreement between the parties before the civil court, there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator. In the instant case the existence of an arbitral clause in the Agreement is accepted by both the parties as also by the courts below but the applicability thereof is disputed by the respondent and the said dispute is accepted by the courts below. Be that as it may, at the cost of repetition, we may again state that the existence of the arbitration clause is admitted. If that be so, in view of the mandatory language of Section 8 of the Act, the courts below ought to have referred the dispute to arbitration.” 35. Thus in a case where there is an arbitration clause in the agreement between the parties, the matter for resolution of disputes arising out of the agreement is required to be referred to arbitration in view of section 8 of the Act of 1996. In the present case the arbitration clause was invoked prior to filing of the suit still the plaintiff filed the suit making claims alleging violation of contractual obligations by the defendants and in such circumstances, the suit was barred by law right from inception. 36. This Court also finds that the plaintiff filed the suit on 02nd September 2020 immediately after receipt of the letter dated 13th August 2020 issued by the defendants invoking the arbitration clause. 36. This Court also finds that the plaintiff filed the suit on 02nd September 2020 immediately after receipt of the letter dated 13th August 2020 issued by the defendants invoking the arbitration clause. The plaintiff made an allegation of fraudulent execution of the addendum dated 06th June 2015 and also alleged that the agreement dated 12th June 2014 as well as the alleged addendum dated 06th June 2015 was never acted upon by the parties and that they remained void and inoperative. This was apparently done to avoid arbitral proceedings by resorting to clever drafting. 37. The learned Commercial Court while passing the impugned order holding that the suit was barred by law has incidentally taken note of the undisputed fact that the dispute was already referred to arbitration for adjudication by Hon’ble Delhi High Court by order passed under section 11(6) of the Act of 1996. This Court is of the considered view that the learned Commercial Court has not committed any illegality or perversity while rejecting the plaint holding it to be barred by law. Arbitrability of dispute. 38. So far as the point of arbitrability of dispute in connection with the allegation of fraudulent execution of the addendum to the agreement dated 12th June 2014 is concerned, it would be useful to refer to the judgment passed by the Hon’ble Supreme Court in “Ayyasamy v. A. Paramasivam and others” (2016) 10 SCC 386 wherein it has considered allegations of fraud arising out of civil disputes between the parties. Paragraph no. 45.2 of the aforesaid judgment is quoted as under: “45.2. Allegations of fraud are not alien to ordinary civil courts. Generations of judges have dealt with such allegations in the context of civil and commercial disputes. If an allegation of fraud can be adjudicated upon in the course of a trial before an ordinary civil court, there is no reason or justification to exclude such disputes from the ambit and purview of a claim in arbitration. The parties who enter into commercial dealings and agree to a resolution of disputes by an arbitral forum exercise an option and express a choice of a preferred mode for the resolution of their disputes. The parties in choosing arbitration place priority upon the speed, flexibility and expertise inherent in arbitral adjudication. The parties who enter into commercial dealings and agree to a resolution of disputes by an arbitral forum exercise an option and express a choice of a preferred mode for the resolution of their disputes. The parties in choosing arbitration place priority upon the speed, flexibility and expertise inherent in arbitral adjudication. Once parties have agreed to refer disputes to arbitration, the court must plainly discourage and discountenance litigative strategies designed to avoid recourse to arbitration. Any other approach would seriously place in uncertainty the institutional efficacy of arbitration. Such a consequence must be eschewed.” 39. Thus, an arbitrator is competent to adjudicate on frauds committed in connection with civil disputes. It is important to note that the execution of the agreement dated 12th June 2014 containing the arbitration clause as well as the enabling provision for amendment of the agreement is not in dispute. So far as the addendum dated 06th June 2015 is concerned, the same is an addendum to the agreement dated 12th June 2014 and the letter invoking the arbitration clause included disputes arising out of the agreement dated 12th June 2014 as well as the addendum dated 06th June 2015 to the agreement dated 12th June 2014. On the face of the averments made in the plaint, the alleged actions and the allegations about the agreement and the addendum are in personam and not in rem and would accordingly affect only the parties to the agreement and is essentially a civil dispute between the parties. In such circumstances, there is no legal bar in the adjudication of such dispute which involves an allegation of fraud giving rise to civil liabilities between the parties. No public element is involved in the dispute. The above observations have been made looking into the plaint and the documents annexed with the plaint and shall have no bearing on the case of the parties in the arbitral proceedings or the proceedings, if any, arising out of the arbitral award. On the point of res-judicata. 40. On 18th November 2021 an application was filed by the defendants under section 8 read with section 5 of the Arbitration and Conciliation Act, 1996 read with Order VII Rule 11 along with section 151 of CPC. The petition was dismissed as not pressed vide order dated 05th January 2022. 41. On the point of res-judicata. 40. On 18th November 2021 an application was filed by the defendants under section 8 read with section 5 of the Arbitration and Conciliation Act, 1996 read with Order VII Rule 11 along with section 151 of CPC. The petition was dismissed as not pressed vide order dated 05th January 2022. 41. On 07th March 2022 another petition was filed by the defendants under Order VII Rule 11 of CPC read with section 5 of the Arbitration and Conciliation Act, 1996 as amended by the Arbitration and Conciliation (Amendment) Act, 2019. The petition was allowed vide impugned order dated 14th September 2022. 42. To appreciate the point of res-judicata as raised by the plaintiff it would be useful to compare the reliefs of both the petitions which are as follows: - Reliefs of Petition dated 18th November 2021 Reliefs of Petition dated 07th March 2022 “It is therefore most respectfully prayed that this Hon’ble court may be pleased to: (A) Dismiss the present suit in view of Arbitration Petition bearing ARB.P No.771/2020 filed by the present defendant under section 11 of the Arbitration and Conciliation Act, 1996 pending before the Hon’ble High Court of Delhi at New Delhi for referring the matter to a sole arbitrator; Or (B) Refer the matter to a sole arbitrator since the entire subject-matter of the suit is within the scope of the arbitration agreement; and (C) Pass any other or such further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” “It is therefore most respectfully prayed that this Hon’ble court may be pleased to: (A) Dismiss the present suit as the same is barred by law in view of the section 5 of the Arbitration and Conciliation Act, 1996 as well as the fact that the sole Arbitrator is already appointed by the Hon’ble High Court of Delhi in the Arbitration Petition being Arb. P No.771/2020 filed under section 11 of the Arbitration and Conciliation Act, 1996 and the Arbitration Proceeding has commenced pursuant thereto; (B) Pass any other or such further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 43. P No.771/2020 filed under section 11 of the Arbitration and Conciliation Act, 1996 and the Arbitration Proceeding has commenced pursuant thereto; (B) Pass any other or such further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 43. The Petition dated 18th November 2021 was filed seeking dismissal of the suit on account of the pendency of an application filed before Hon’ble Delhi High Court for the appointment of an arbitrator under section 11(6) of the Act of 1996 to resolve the disputes between the parties and an alternative relief was also prayed i.e. to refer the matter to a sole arbitrator stating that the entire subject-matter of the suit is within the scope of the arbitration agreement. A subsequent petition dated 07th March 2022, which is involved in this case, was filed seeking dismissal of the suit being barred by law in view of section 5 of the Act of 1996 stating the fact that the sole Arbitrator was already appointed by the Hon’ble High Court of Delhi in the Arbitration Petition filed under section 11 of the Act of 1996 and that the arbitration proceeding had commenced pursuant thereto. 44. Thus, the earlier petition was filed for dismissal of the suit as a petition was filed before Hon’ble Delhi High Court under section 11(6) of the Act of 1996 and for a prayer under section 8 of the Act of 1996 seeking reference of the dispute for adjudication through arbitration. The subsequent petition was filed seeking rejection of plaint by stating that the suit was barred by law of arbitration in view of section 5 of the Act of 1996. 45. Upon comparison of the reliefs of the two petitions, this Court finds that the reliefs prayed for are materially different. As already held above, the arbitral proceedings had commenced prior to the filing of the suit in terms of section 21 of the Act of 1996. During the pendency of the suit, the Hon’ble Delhi High Court had allowed the petition filed under section 11(6) of the Act of 1996 and appointed an arbitrator, therefore the earlier petition filed in the suit seeking reference of the dispute to arbitration on account of the existence of arbitration clause had become infructuous. During the pendency of the suit, the Hon’ble Delhi High Court had allowed the petition filed under section 11(6) of the Act of 1996 and appointed an arbitrator, therefore the earlier petition filed in the suit seeking reference of the dispute to arbitration on account of the existence of arbitration clause had become infructuous. It was on account of changed circumstances, that another petition was filed under Order VII Rule 11 of CPC stating that the suit was barred by law in view of section 5 of the Act of 1996. Thus, the argument of the plaintiff that the subsequent petition was barred by principles of res-judicata, is devoid of any merits, hence rejected. 46. This Court finds that the learned Commercial Court has rightly rejected the plaint holding the same to be barred by law. Accordingly, we do not find any merit in this Appeal, which is hereby dismissed.