JUDGMENT : BIREN VAISHNAV, J. 1. This petition filed under Section 11 of the Arbitration & Conciliation Act, 1996, (hereinafter referred to as “the Act of 1996”) has been filed by the petitioners praying for appointment of an arbitrator. 2. Facts in brief are as under: 2.1 It is the case of the petitioners that they entered into a Non Compete Agreement with the respondents on 01.08.2011. As per the said agreement, the petitioners agreed not to manufacture or sell/market any products relating to Asphalt mixing plants. Further, according to the petitioners, the respondents on 19.12.2012 executed a binding agreement with the Ammann Group, Switzerland. Pursuant to these two business agreements, the respondents transferred their business in concrete batching plants for consideration to the group. 2.2 The Non Compete Agreement dated 01.08.2011 was amended on 06.07.2015 by which it was agreed that the Ammann Group of Companies will be exempted from the non compete laws by which the respondents were prevented from entering into the business of concrete. It appears that on 25.01.2021, the respondents issued a notice to the petitioners contending that by virtue of the Non Compete Agreement dated 01.08.2011 which was subsequently amended on 18.06.2015 it had come to their notice that the petitioners have started manufacturing or selling of the products relating to asphalt which the Non Compete Agreement prevented them to do. By the notice therefore, the petitioners were asked to stop immediately dealing in such products. 2.3 To the notice, the petitioners responded on 05.02.2021 contending that there is no breach of any agreement and that the petitioners could not be restricted to manufacture construction equipments relating to asphalt. It was their contention too that the agreement was void as it was hit by Section 27 of the Indian Contract Act. The response further indicated that even when the Tri Party Agreement was entered, the respondents had sold their entire share to the group in Switzerland, and therefore, there is no restriction from manufacturing construction equipments for application of asphalt. The dispute having been so raised, by such a response, the petitioners invoked the arbitration clause calling upon the respondents to appoint one of the named arbitrators. The dispute having been so raised, by such a response, the petitioners invoked the arbitration clause calling upon the respondents to appoint one of the named arbitrators. 2.4 The respondents, through an advocate, on 09.03.2020 responded relying on the Non Compete Agreement and also on the Tri Partite Agreement, it was the case of the respondents that the petitioners could not after receiving consideration in light of the relaxation of the non compete clause, in respect of the third party turn around. 3. Mr. K.G. Sukhwani, learned counsel appearing for the petitioners would submit that the Non Compete Agreement dated 01.08.2011 is void and not enforceable. He would further submit that once the amendment was made in the Non Compete Agreement, by which, Annexure ‘B’ was not to apply to the company Ammann Apollo India Limited, the petitioners were wrongfully blamed of having committed breach of any agreement as the petitioners cannot be restricted to manufacture the construction equipments for concrete application but can also manufacture construction equipments for asphalt and other road construction equipments. 3.1 Mr. Sukhwani, learned counsel for the petitioners, would further submit that by relying on arbitration clause connected to the Non Compete Agreement and submit that even if the Non Compete Agreement was hit under the provisions of the Contract Act and so unconscionable, the arbitration clause in the agreement was a stand alone clause of the parties, therefore, were bound to settle their inter se disputes by invoking the mechanizm under the Act of 1996. 3.2 Mr. Sukhwani, learned counsel for the petitioners, would further submit that merely because consideration pursuant to the Tri Partite arrangement had been paid would not by itself disqualify the petitioner from invoking the arbitration clause. In support of his submissions that the arbitration agreement was a stand alone agreement, Mr. Sukhwani, learned counsel, would rely on the decisions in the case of N. Srinivasa vs. Kuttukaran Machine Tools Limited, (2009) 5 SCC 182 , SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011) 14 SCC 66 and Deccan Paper Mills Company Limited vs. Regency Mahavir Properties and Others, (2021) 4 SCC 786 . 4. Mr. Shalin Mehta, learned Senior Counsel appearing with Mr. 4. Mr. Shalin Mehta, learned Senior Counsel appearing with Mr. Rohan Lavkumar Shah, learned advocate has submitted as under: 4.1 He would submit that it is not open for the party to claim that the Non Compete Agreement itself is contrary to law and to rely upon a clause within such agreement, namely, the clause pertaining to settlement of disputes by arbitration. 4.2 Mr. Mehta, learned Senior Counsel, would submit that the dispute sought to be referred to arbitration has a substantial over leap with a Trade Mark Suit No. 1 of 2021 and would amount to bifurcation of disputes and multiplicity of evidence. 4.3 Mr. Mehta, learned Senior Counsel, would take the Court through the order passed in the trade mark suit and submit that Ammann India Private Limited has filed the suit praying for permanent injunction against the petitioners for using the trade name “Apollo”. The said suit is pending in the District Court at Mehsana. It is not open for the petitioner to contend that the Non Compete Agreement is void. He would rely on the application filed by the petitioners under Order VI Rule 16 of the C.P.C, wherein, it is their contention that the allegation in the plaint passed based on such agreements are unnecessary and therefore are liable to be struck out the order so passed by the competent Court rejecting such an application. 4.4 Mr. Mehta, learned Senior Counsel appearing for the respondents, would further submit that on perusal of the plaint of the Trade Mark Suit, it will be evident that the issues pertaining to the true nature of arrangement between the petitioners and the respondent is a subject matter of such suit. In support of his submission that there can be no bifurcation of proceedings or splitting the cause referring the matter to arbitration, Mr. Shalin Mehta, learned Senior Counsel, would rely on a decision in the case of Sukanya Holdings (P) Ltd vs. Jayesh H. Pandya and Others, 2003 (5) SCC 531 . 5. Having considered the submissions made by the learned counsels appearing for the respective parties, as the facts unfold, what is evident is as under: 5.1 The petitioners and the respondents had entered into a Non Compete Agreement on 01.08.2011. By such agreement, they had agreed not to manufacture or sell/market any products pertaining to asphalt mixing plants. That agreement underwent an amendment on 06.07.2015. By such agreement, they had agreed not to manufacture or sell/market any products pertaining to asphalt mixing plants. That agreement underwent an amendment on 06.07.2015. By an amendment so made, it was agreed that pursuant to a Tri Partite Agreement entered into between the petitioner, respondent and Ammann Apollo India Private Limited, it was agreed that Ammann India could start activities concerning concrete production which was otherwise not possible for the respondents to undertake as a result of the Non Compete Agreement. In consideration of this relaxation, Ammann India paid an amount of compensation to the petitioners. 5.2 In other words, after the principal Non Compete Agreement was entered into between the petitioners and the respondents, by virtue of amendment in the agreement on 06.07.2015, which was necessitated by virtue of the Tri Partite Agreement, it appears that a dispute arose between the petitioner and the respondent as set out in the notice issued by the respondents. In other words, the root of the entire dispute between the petitioner and the respondent was a communication addressed by the respondent to the petitioner pointing out that it had come to their notice that the petitioners had started manufacturing or selling of the products which though otherwise were prevented from by virtue of the Non Compete Agreement (Annexure ‘A’). 5.3 According to the respondents, the petitioner was acting in breach of the Non Compete Agreement. It is in response to this that the petitioners by a notice of 05.02.2021 disputed the Non Compete Agreement contending that it was void on the ground that it was hit by Sec. 27 of the Indian Contract Act, Sec.3 of the Competition Act etc. They invoked the arbitration clause and named three arbitrators of which one was to be appointed for resolution of this dispute. The contention of the respondents that the dispute is not arbitrable and the Ammann India is a necessary party to the dispute, is not acceptable. 5.4 Evident it is from the communication dated 25.01.2021 that the root of the dispute was between the petitioner and the respondents in light of the main agreement of 01.08.2011 which had no relation with the Tri Partite Agreement entered into subsequently by the petitioner and the respondents with the third party i.e. Ammann India. 5.4 Evident it is from the communication dated 25.01.2021 that the root of the dispute was between the petitioner and the respondents in light of the main agreement of 01.08.2011 which had no relation with the Tri Partite Agreement entered into subsequently by the petitioner and the respondents with the third party i.e. Ammann India. That the dispute is arbitrable and merely because the Non Compete Agreement is branded as one hit as being void, cannot disqualify the dispute as being referred to arbitrator. In case of N. Srinivasa (supra), the Hon’ble Supreme Court has held that even if an agreement ceases to exist, the arbitration clause remains in force and any dispute pertaining to the agreement to be resolved according to the conditions mentioned in the agreement. Even in the case of SMS Tea Estates Private Limited (supra), Hon’ble Supreme Court has held that even if the agreement is held to be not enforceable, the arbitration agreement would remain unaffected. The arbitration clause is an agreement independent of the other terms of the contract or the instrument. Paragraphs 12 and 13 of the decision read as under: “12. When a contract contains an arbitrate in agreement, it is a collateral term relating to the resolution of disputes, unrelated to the performance of the contract. It is as if two contracts - one in regard to the substantive terms of the main contract and the other relating to resolution of disputes - had been rolled into one, for purposes of convenience. An arbbitration clause is therefore an agreement independent of the other terms of the contract or the instrument. Resultantly, even if the contract or its performance is terminated or comes to an end on account of repudiation, frustration or breach of contract, the arbitration agreement would survive for the purpose of resolution of disputes arising under or in connection with the contract. 13. Similarly, when an instrument or deed of transsfer (or a document affecting immovable property) contains an arbitration agreement, it is a collateral term relating to resolution of disputes, unrelated to the transfer or transaction affecting the immovable property. It is as if two documents - one affecting the immovable property requiring registration and the other relating to resolution of disputes which is not compulsorily registerable - are rolled into a single instrument. It is as if two documents - one affecting the immovable property requiring registration and the other relating to resolution of disputes which is not compulsorily registerable - are rolled into a single instrument. Therefore, even if a deed of transfer of immovable property is challenged as not valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer.” 5.5 Even in the case of Deccan Paper Mills (supra), the Hon’ble Supreme Court after considering the case law on the question of the validity of the arbitration agreement has held that the clause pertaining to arbitration is a stand alone clause. Para 8 of the decision read as under: “8. We are also inclined to accept Shri Navare’s argument on Section 8 of the 1996 Act, in view of some of the recent judgments on Section 8 after the 2015 Amendment Act. It is enough to state that there is a sea change between Section 8 of the 1996 Act and Section 20 of the Arbitration Act, 1940, as has been held in Paras 17 to 21 of Avitel Post Studioz Ltd vs. HSBC PI Holdings (Mauritius) Ltd. Post amendment, it is clear that the judicial authority before which an action is brought shall, if the other conditions of Section 8 are met, refer the parties to arbitration unless it finds that prima facie, no valid arbitration agreement exists. As has been held hereinabove, in the present case, the finding that is returned is correct - a valid arbitration agreement certainly exists as the agreements that are sought to be cancelled are not stated not to have ever been entered into.” 6. In light therefore of these decisions, the decision of the Hon’ble Supreme Court in the case of Sukanya (supra) will be of no help to the respondents. In case of Deccan Papers (supra), Hon’ble Supreme Court has extensively relied on a decision in the case of Avitel Post Studioz Ltd vs. HSBC PI Holdings (Mauritius) Ltd. (2021) 4 SCC 713 . Para 20 of the said decision read as under: “20. It will be seen from Section 20 of the 1940 Act, as was held in Abdil Kadir, that a wide discretion is vested in the Court if sufficient cause is made out not to refer parties to arbitration. Para 20 of the said decision read as under: “20. It will be seen from Section 20 of the 1940 Act, as was held in Abdil Kadir, that a wide discretion is vested in the Court if sufficient cause is made out not to refer parties to arbitration. It was in that xontext that the observations in Abdul Kadir as to serious allegations of fraud triable in a civil court, being “sufficient cause” shown under Section 20(4) of the 1940 Act were made. Also, the approach of the 1940 Act is made clear by Section 35(1), which is set out hereinbelow: “35. Effect of legal proceedings on arbitration :-(1) No reference nor award shall be rendered nivalid by reason only of the commencement of legal proceedings upon the subject-matter of the reference, but when legal proceedings upon the whole of the subject-matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire, all further proceedings in a pending reference shall, unless a stay of proceedings is granted under Section 34, be invalid.” Thus, even where arbitral proceedings are ongoing, such proceedings become invalid the moment legal proceedings upon the whole of the subject-matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire. As against this, Sections 5, 8 and 16 of the 1996 Act reflect a completely new approach to arbitration, which is that when a judicial authority is shown an arbitration clause in an agreement, it is mandatory for the authority to refer parties to arbitration bearing in mind the fact that the arbitration clause is an agreement independent of the other terms of the contract and that, therefore, a decision by the Arbitral Tribunal that the contract is null and void does not entail ipso jure the invalidity of the arbitration clause.” 7. Coming to the alternative submission of the respondents with regard to the dispute not being arbitrable due to the pendency of the trade mark suit, what is evident in considering the suit in question is that, it is the case of Ammann India Limited, the plaintiff, that the defendants are using the trade mark “Apollo” by entering into conflicting business of manufacturing asphalt based road construction equipments under the identical trade mark of Apollo. The suit, therefore, is basically one pertaining to infringment of a trade mark by the petitioners vis-a-vis the concerned plaintiff who is not a party to the arbitration agreement and certainly therefore, based on such a suit, it cannot be said by referring the matter to arbitration there will be splitting of the causes because the subject matter of the suit and the subject matter of the dispute which is sought to be referred to arbitration are completely different. 8. For the aforesaid reasons, the Arbitration Petition No. 79 of 2021 is allowed. FURTHER ORDER: The parties are hereby directed to obtain consent and declaration of Hon’ble Mr. Justice M.R. Shah, Retired Judge, Hon’ble Supreme Court of India. The registry to accept the consent and declaration. The same may be filed by 21.07.2023.