1. An interesting question arises for consideration in this matter. Whether a prayer for stay of a Reference for Arbitration (RFA) can be maintained by a plaintiff in the suit, when the Defendant seeks the RFA 3 years after having entered his principal defense. It is also necessary to consider the law to be applied in this situtation and as to whether the issues in the RFA are substantially similar to that of the Suit.2. G.A. No. 820 of 2020 has been filed by the Plaintiff on 19th May 2020 seeking to restrain the Defendant from proceeding with the RFA made by communication dated 2nd March, 2020.3. The brief facts as pleaded in the plaint are that the plaintiff No.1 was engaged in the trade and supply of raw materials within and outside India since 1996, inter alia to the Mittal Group of Companies which are owned and controlled by the Defendant No.1. The Defendant No.1 is married to the oldest sister of the Plaintiff No.2.4. Sometime in the year 2010, the plaintiffs and the Defendant No.3 agreed that the latter would be admitted and allotted 25% of issued, subscribed and paid up share capital of the Plaintiff No.1. The balance 75% shares would be held by the Plaintiff No.2 and 3. The Board of directors of the Plaintiff No.1 would consist of 3 directors, 2 of whom would be nominated by the Plaintiffs Nos.2 and 3 and one by the Defendant No.35. It was also agreed that the plaintiff No.1 was to be the sole procurer/supplier for the Arcelor Mittal Group of Companies i.e. Defendants Nos 2 to 38, world wide. The Defendants Nos. 39 to 42 were eventually the actual suppliers under agreements between the plaintiffs and the Defendants Nos.2 to 38.6. The agreements provided for the terms and conditions of management of the Plaintiff No.1, an exit option to the Defendant No.3 and an Arbitration Clause. Disputes and differences arose between the plaintiffs and the Defendant No.3 in connection with supply and payment of goods, hence the suit. The plaintiff sought specific performance of the said agreements, whereas the Defendant No.3 contended that the agreements stood terminated.7. On 5th of January 2017, the Plaintiffs filed the instant suit against 42 Defendants, inter alia praying for the specific performance of a Shareholders’ Agreement dated 21st January 2010, 29th February 2016 and other agreements express, implied, written and unwritten. The Plaintiffs also prayed for permanent injunction against the Defendant No. 39 to 42 from acting in breach of the parts of the aforesaid agreements. The prayers in the plaint are as follows :-“(a) A decree in favour of the plaintiff for specific performance of the pre-incorporation agreement pleaded in paragraph 6 of the plaint against the Defendant Nos. 1 to 38 and/or each of them;(b) A decree in favour of the plaintiff for specific performance of the non-competition agreement pleaded in paragraph 40 of the plaint against the defendant nos. 39 to 42 and/or each of them;(c) If necessary a decree in favour of the plaintiffs for specific performance of the Shareholders’ Agreement dated 21st January, 2010 as well as the Amendment No. 1 dated 29th February, 2016 as against the Defendant nos. 1 to 38 and/or each of them;(d) Declaration that the plaintiff company is exclusively entitled to be the sole purchasing representative in perpetuity of the Defendant nos. 2 to 38 for purchase or procurement of any machinery or materials or services for their respective businesses from India under any circumstances whatsoever;(e) Declaration that the non-competition agreement was and still is valid, operative, binding and subsisting by and between the plaintiff company on the one hand and each of the Defendant nos. 39 to 42 on the other, who continue to be and remain bound and obliged to fully comply therewith and not to have any direct dealings with any of the AM Companies under any circumstances whatsoever,(f) Declaration that the SHA dated 21st January, 2010 as amended on 29th February, 2016 was and is still valid, operative, binding and subsisting and the Defendants and each of them continue to be an remain bound and obliged to fully comply therewith for all commercial purposes as definded therein;(g) A perpetual injunction restraining the Defendant nos. 1 to 38 by themselves or by their directors, or executive officers or their servants or agents or employees or assigns or otherwise howsoever from purchasing or procuring any machinery or materials or services or goods of any kind whatsoever from India by any means other than by making direct purchases for the same only with the plaintiff company to the execution of all others;(h) A perpetual injunction restraining the Defendant nos. 39 to 42 and each of them by themselves or by their directors or executive officers or their servants, agents, employees or assigns or otherwise howsoever from making any contracts for the sale of any of their goods or manufactured products directly to any of the Defendant no. 1 to 38 under any circumstances whatsoever except such contracts for sale as may be made through the plaintiff company;(i) A decree for a sum of Rs.84,32,62,531/- as pleaded in paragraph 59 hereof be passed in favour of the plaintiffs against the Defendant nos. 2 to 38 and/or each of them as may be found to be liable according to their respective liabilities;(j) Alternatively, a decree for interest in favour of the plaintiff company against the Defendant nos. 2 to 38 on the sum of Rs.79,12,84,743/- at such rate and/or on such basis as to this Hon’ble Court may seem fit and proper upon appropriate enquiries;(k) Alternatively, separate decrees for interest be passed in favour of the plaintiff company against the Defendant nos. 2 to 38 or such of them, for such sum as may be found to be liable according to their respective liabilities;(l) A decree for damages for the sum of Rs.750 crores in favour of the plaintiffs against the Defendant nos. 2 to 38 or each of them as pleaded in paragraph in paragraph 50 hereof;(m) Alternatively, such separate decrees for damages be made in favour of the plaintiffs against such of the Defendants as may be found to be liable for the same acording to their respective liabilities;(n) Alternatively, a decree for damages in favour of the plaintiffs against the Defendant nos. 1 to 38 or one or more of them as may be found to be liable according to their respective liabilities for their wrongful acts as pleaded in paragraph 38 to 47 hereof;(o) A decree for damages for the sum of Rs.200 crores in favour of the plaintiffs against the Defendant nos.39 to 42 or each of them as pleaded in paragraph 51 hereof. Alternatively, such separate decrees for damages be made in favour of the plaintiffs against such of the Defendants as may be found to be liable for the same according to their respective liabilities;(p) Alternatively, a decree for damages in favour of the plaintiffs against the Defendant nos. 39 to 42 or one or more of them as may be found to be liable according to their respective liabilities for their wrongful acts as pleaded in paragraphs 39 to 47 hereof;(q) A perpetual injunction restraining the Defendant nos. 1 to 38 and/or each of them either by their directors or executive officers or servants or agents or employees or assigns or otherwise howsoever from acting in breach of the negative covenants as pleaded in paragraph 32 of this plaint;(r) A perpetual injunction restraining the Defendant nos. 39 to 42 and/or each of them either by their directors or executive officers or servants or agents or employees or assigns or otherwise howsoever from acting in breach of the negative covenants as pleaded in paragraph 42 of this plaint;(s) A perpetual injunction restraining the Defendant nos. 1 to 38 and/or each of them either by their directors or executive officers or servants or agents or employees or assigns or otherwise howsoever from either directly or indirectly or otherwise howsoever buying or purchasing or acquiring or procuring any quantities of refractory materials produced by the said Defendants under any circumstances whatsoever except by any through the plaintiff company;(t) A perpetual injunction restraining the Defendant nos. 39 to 42 and/or each of them either by their directors or executive officers or servants or agents or employees or assigns or otherwise howsoever from selling any refractory materials to any of the AM Companies by any direct transaction or otherwise under nay circumstances whatsoever except by and through the plaintiff company;(u) Mandatory injunction directing the Defendants and each of them to give full and proper discovery and disclosure of all their direct dealings and transactions that have taken place by and between any of them since March 2016 and upto date;(v) Mandatory injunction directing the Defendants to discloses particulars of all agreements entered into by and between the Defendant nos. 2 to 38 or any of them with the Defendant nos. 39 to 42 or any of them or any other Indian Vendors for supply of any materials or goods or services in derogation and/or breach of the negative covenants as pleaded in paragraphs 32 and 42 hereof as well as particulars of all payments made by the Defendant nos. 2 to 38 or any of them to the Defendant nos. 39 to 42 or any of them with respect to such supplies for the period between March 2016 and upto date;(w) For the purposes aforesaid, all necessary enquiries, accounts and directions,(x) for the purpose aforesaid, all necessary orders and directions and/or decrees be made by this Hon’ble Court for full and proper discovery and disclosure on the matters aforesaid by the Defendants and each of them;(y) Receiver;(z) Alternatively, orders for injunction in such terms and on such basis as to this Hon’ble Court may seem fit and proper;(aa) interlocutory injunction;(bb) Attachment; (cc) Costs;(dd) Such further and other orders or directions or decrees be made by this Hon’ble Court in favour of the plaintiffs so as to afford adequate relief or reliefs to the plaintiffs and on such terms and conditions as to this Hon’ble Court may seem fit and proper.”8. Prior thereto, in or about December 2016, the Defendant No.3 had filed an application under Section 9 of the Arbitration and Conciliation Act 1996, (1996 Act), being A.P. 1034 of 2016, (Arcelor Mittal Design & Engineering Centre Pvt Ltd Vs Lindsay International Pvt Ltd) against the Plaintiffs, before this Court, interalia seeking orders of security and attachment. The Defendant did not succeed in either before the single or division benches of this Court. It was specifically contended by the 3rd Defendant in the said application that the Share Holders Agreement (SHA) dated 21st January 2010 as amended on 29th February 2016, stood terminated.9. In the instant suit, the Plaintiffs filed an interlocutory application being G.A.No.117 of 2017, seeking interim orders against the Defendants. The matter was heard in aggressive contest at the admission stage over 15 days by a co-ordinate bench, and it was inter alia directed on 17th February 2017 that the Defendant No. 39 , 41 and 42 shall effect supplies to the Defendant Nos. 1 to 38 and receive payment directly. The matter is since pending after exchange of affidavits. An appeal from the said order did not succeed.10. On 3rd March 2017, the 3rd Defendant addressed a further letter to the Plaintiffs, citing additional reasons for terminating the SHA.11. In April 2017, the Defendant No.3 filed a written statement in the suit. In the written statement all general and specific defenses to the plaint were taken comprehensively. However at paragraph 4 of the written statement it was averred as follows :-“4. The Plaintiffs and the Defendant No.3 are parties to a Shareholders’ Agreement dated January 21, 2010 (“SHA”) read with Amendment No.1 dated February 29, 2016. The SHA stands terminated prior to institution of the present Suit by the Plaintiffs. The said SHA contains an arbitration clause at Clause 34. All disputes between the Plaintiffs and the Defendant No.3 which arise out of, connected to and in relation to the terms of the SHA, have to be referred to arbitration by the party claiming the same. Hence, valid legal proceedings for adjudication of any dispute in terms of the SHA, including any dispute with regard to its termination (if the Plaintiffs so elect to challenge the same), can only be adjudicated before the appropriate arbitral forum constituted in terms of Clause 34. The Plaintiffs have at the time of filing of this Written Statement chosen not to dispute the termination of the SHA before an appropriate arbitral tribunal constituted in accordance with Clause 34 of the SHA. The Plaintiffs having accepted the termination of the SHA, no cause of action or decree for specific performance of the SHA can be a subject of adjudication in this Suit. The matters raised in this Suit pertain to terms/agreement/contracts which do not exist. The Defendant No.3 is filing the Written Statement in this Suit, reserving its right in terms of Clause 34 of the SHA, in the event the Plaintiff elects to dispute in accordance with law, the termination of the SHA. In the event, the Plaintiffs seek any adjudication on any matter claiming any relief in relation to SHA in this Suit proceedings, then the same may be deemed to be objected to by the Defendant No.3 in view of the arbitration clause in the SHA read with the Arbitration and Conciliation Act, 1996 (“Arbitration Act”).”12. Three (3) years after filing its written statement, the Defendant No.3, by a communication dated 2nd March 2020 purported to invoke the Arbitration Clause in the SHA and filed a Statement of Claim before the International Chamber of Commerce (ICC). The Plaintiffs were notified. The venue of Arbitration was Kolkata. In the Statement of Claim the Defendant No.3 averred as follows :-“20. In view of the continuous breaches committed by the Respondents of the terms of the SHA, the Claimant was constrained to terminate the SHA vide notice dated 3 March 2017 (“Termination Notice”). In the same notice, the Respondent Nos. 2 and 3 were called upon to purchase the shares of Respondent No. 1 held by the Claimant within 60 days from the date of the notice at book value, failing which steps would have to be taken for the dissolution of the Respondent No. 1. Copy of the Termination Notice is annexed herewith as “Exhibit C”. (c) Respondents’ Violations of Its Legal and Contractual Obligations:21. The Claimant is providing hereunder a brief factual matrix of the disputes that arose under the SHA, as also the disputes arising out of the termination of the SHA by the Claimant:a) breach of the SHA by the Respondents for wrongfully withholding amounts payable to various vendors who have supplied products to ArcelorMittal Companies pursuant to purchase orders placed by the Respondent No.1 on the Indian vendors.b) breach of the SHA by the Respondents Nos. 2 and 3 by wrongfully interfering with the relationship between the Claimant and the Respondent No. 1 based on a deliberate misinterpretation of Clause 2.9 of the SHA that there is an exclusive arrangement requiring ArcelorMittal Companies to only source products in India through the Respondent No. 1.c) breach of the SHA by the Respondents Nos. 2 and 3 by conducting the business (including financial mismanagement) of the Respondent No. 1 in a manner which is contrary to the interest of and detrimental to the Claimant and the Respondent No. 1 itself, causing tremendous harm and damage to the investment made by the claimant in the Respondent No. 1.d) Non-Disclosure of Information, Accounts and Audit Documents as per Clause 13 and 14 of the SHA, and statutory non-compliances adversely affecting the rights of the Claimant as a shareholder;e) breach of the SHA by initiating legal proceedings in the High Court of Calcutta against several ArcelorMittal Companies, including the Claimant, and key vendors on a false and incorrect premise that there is an exclusive arrangement between the Respondents and all Arcelor Mittal Companies that all products/supplies in India has to mandatorily be purchased through the Respondent No. 1, which position is completely contrary to the terms of the SHA.f) breach of Clause 16.4.2 of the SHA by the Respondent Nos. 2 and 3 by failing to buy all the Claimant’s shares held in the Respondent No. 1, which breach continues till date.VI. RELIEF SOUGHT:47. As a result, Claimant respectfully requests the Arbitral Tribunal to issue an award: a) declaring that Respondents violated its obligations under the SHAb) declaring that the termination of the SHA by the Claimant is legal and validc) declaring that Clause 16.2 of the SHA shall survive termination of the SHA by the Claimantd) ordering Respondents to purchase the shares of the Claimant pursuant to Clause 16.4.2 of the SHA; alternatively,e) ordering the Respondents to take all steps necessary for dissolution of Respondent No.1 as per Article 16.1 of the SHA and in terms of the applicable law; andf) ordering Respondent to pay all arbitration costs, including claimant’s counsel’s costs and expenses; 48. For the avoidance of doubt, Claimant reserves its right to:i. raise any and all further claims arising out of or in connection with the disputed matters described in this RFA or otherwise arising between the Parties;ii. amend and/or supplement the relief sought herein;iii. produce such factual or legal arguments or evidence (including witness testimony, expert testimony and other documents) as may be necessary to present its case or rebut any case which may be put forward by Respondents; and iv. seek interim and provisional measures before this Arbitral Tribunal or any competent national court.”13. By communications inter alia dated 8th May 2020, the Plaintiff sought time before the ICC to respond to the notice of reference.14. Mr. S.N.Mukherjee, Ld Senior Advocate for the Plaintiff placed various paragraph, the prayers of the plaint and the pleadings in A.P.1034 of 2016. He submits that the claims of the Plaintiffs against the Defendants have been clearly pleaded in the plaint. He then placed the written statement in detail and submitted that the Defendants have entered their defense to each and every claim of the Plaintiff. He then placed Section 8 of the 1996 Act and submitted that the first comprehensive statement of defense of the Defendants having been filed, the contractual choice of forum in the SHA has been waived by the Defendants.15. Mr. Mukherjee further submits that a mere pleading in the written statement about the Arbitration Clause in the agreement cannot, ipso facto, allow the Defendant to avail the contractual forum. He submits that Section 8 of the 1996 Act provides for a specific procedure to a Defendant seeking to enforce the arbitration agreement, which has not been followed. On the contrary, the Defendant has filed a comprehensive written statement to the claims in the plaint, without an application under Sec. 8(1). He therefore submits that the Defendant has waived his right to have the disputes settled by arbitration.16. Counsel for the Plaintiff next argued that a mere pleading in the written statement that it is being filed without prejudice to the Arbitration agreement is of no consequence. He submits that once the main defense is entered inter-alia in the form of a written statement the Defendant is deemed to have elected to submit to the jurisdiction of the Civil Court and such election of forum must be deemed in the facts of the case.17. He submits by reference to, Haynes Vs Hirst (1927) States Reports (NSW) Pg 480; Sukanya Holdings (P) Ltd Vs Jayesh H Pandya reported in (2003) 5 SCC Pg 531 Tarapore And Company Vs Cochin Shipyard Ltd, and Anr (1984) 2 SCC 680; WBSEB Vs Shanti Conductors (2003) Gauhati Law Reports 76 ; Mr.Ramasamy Athappan and another Vs The Secretariat, Court of ICC and Ors [2009 -3-L.W.580] affirmed in C.G. Holdings Pvt Ltd and Anr Vs Ramasamy Athappan (2011) SCC Online Madras1078 `that the election made by a party must be determined in the facts of the case and not by any specific averment. He thus contends that the expression “without prejudice” in the written statement will not avoid waiver of the Arbitation Clause. He also relied upon the decision of a single judge of the Bombay High Court in Onyx Musicabsolute Com Pvt Ltd reported in 2008 SCC Online Bom 636.18. He next relied upon a decision of a Division Bench of this Court dated 5th February 2019 in APO 430 of 2017 (Debi Resources Ltd Vs Ambo Exports Ltd) and the Case of Caratti Vs Caratti  WASC Pg 65, in support of the proposition that a Court can stay an Arbitral proceeding or reference on various grounds.19. Mr. Harish Salve, Ld Senior Advocate appearing for the Defendants has submitted that his client’s application is not under Section 8 of the 1996 Act but under Section 5 thereof. He placed and submitted that Section 5 of the 1996 Act is all pervading and a Civil forum cannot stay a reference made by a party. He submitted that the scheme of the 1996 Act is such that an Arbitration once commenced cannot be interfered with. It is submitted that the Reference may be held simultaneously with the Civil proceedings, and it is for the Arbitral Tribunal to decide as to whether it has jurisdiction and or whether the arbitration agreement has been waived or not. He relied upon Sub-Section 2 of Section 8 to buttress his argument.20. Mr Salve relied upon the case of Kvaerner Cementation India Ltd Vs. Bajranglal Agarwal reported in (2012) 5 SCC 214 Paragraph 4 and the decision of Secur Industries Ltd Vs Godrej & Boyce MFG Co Ltd and Anr reported in (2004) 3 SCC 447 Paragraphs 11 to 14 and an unreported decision of the Supreme Court dated 23rd August 2019 in C.A.No. 6605 of 2019, National Aluminium Company Ltd Vs Subhash Infra Engineers Pvt Ltd, Vijay Kumar Sharma Vs Raghunandan Sharma reported in (2010) 2 SCC 486 Mayavati Trading Pvt Ltd Vs Pradyuat Deb Barman reported in (2019) 8 SCC 714 in support of the proposition that in terms of Section 16 of the 1996 Act, it is for the Arbitral Tribunal to rule on its own jurisdiction.21. Mr Salve would place the Plaint, written statement and the RFA to argue that the issues in the Arbitration and the suit are wholly different. He submits that his client has nothing to do with the issues in the suit and is only concerned to the mismanagement, failure to submit accounts and excercise of call option under the SHA. He submits that his clients application is not under Section 8, and that his right to file Section 8 would arise when the plaint is amended to include the letter of Termination dated 3rd March 2017 which was issued after the the plaint was filed. He relied upon the cases of Chairman and MD NTPC Vs Reshmi Constructions Builders and Contractors reported in (2004) 2 SCC PG 663, Superintendent (Tech I) Central Excise IDD Jabalpur Vs Pratap Rai reported in (1978) 3 SCC Pg113.22. Mr. Siddhartha Mitra Ld Senior Advocate who appeared along with Mr Salve relied upon the cases of Parasramka Holdings Pvt Ltd Vs Ambience Pvt Ltd of the Delhi High Court decided on 15th January 2018 in [CS OS 125 of 2017], Sharad P Jagtiani Vs Edelweiss Securities Ld FAO (OS) decided on 7th August 188/2014 (DB Delhi HC) and Krishan Radhu Vs Emaar MGF Construction Pvt Ltd [CS(OS) 3281 of 2014 decided on 21st December 2016. (Delhi HC), SSIPL Lifestyles Ltd Vama Apparels (India) Pvt Lt and Anr being order dated 19th February 2020 passed in CS (COMM) 735/2018, I.As. 15576/2018, 2756/2019, 2757/2019 & 2758/2019.23. The following questions fall for determination:-a) Does a Civil forum lose jurisdiction to determine the existence and validity of an Arbitration Clause if a party seeks to wrongfully assert and act in furtherance thereof ?b) Has the Defendant No.3, by its conduct waived the arbitration agreement in the SHA and hence could not have moved for the RFA ?c) Would an averment in the Written Statement of defense that it is being filed “Without Prejudice to the Arbitration Agreement” constitute an application under Section 8 of the 1996 Act ?d) Are the issues in the suit similar to those in the RFA?e) Can a Court pass an order of Stay of RFA when the Defendant has not filed an application under Section 8 ? What would be law to be applied in such a situation ? Answer to Question (a) Does a Civil forum lose jurisdiction to determine the existence and validity of an Arbitration agreement if a party wrongfully seeks to assert the same and acts in furtherance thereof ?24. The Arbitration and Conciliation Act 1996 consolidates, amends and designs the law relating to Arbitration in India to achieve harmony with the UNCITRAL Model. Section 5 of the said Act casts an obligation on a judicial authority to intervene in a dispute only in a manner provided under the Act. Section 4 specifically recognises the concept of waiver. Section 16 of the Act stipulates that the Arbitral Tribunal can rule on its own jurisdiction. The decisions of the Hon’ble Supreme Court in the Kvaerner Case (Supra) the Secur Industries Case (Supra) and the National Aluminium Case (Supra) are clear authorities on the proposition.25. The Scope of Judicial intervention post the 2015 and 2019 amendments to the 1996 Act, has also been clarified by the Supreme Court in Mayavati Trading decision (Supra). It was held that the satisfaction of the Chief Justice or his designate under Section 11(6A) of the 1996 Act, is restricted to a prima facie view as regards the existence of the Arbitration agreement. Such principle was also required to be followed in the case of Section 8 and 45. While setting out the recommendations of the 246th Law Commission at Para 9 continued at Pg 723 and approving the same, the Supreme Court held:-31. The Commission is of the view that, in this context, the same test regarding scope and nature of judicial intervention, as applicable in the context of Section 11, should also apply to Sections 8 and 45 of the Act — since the scope and nature of judicial intervention should not change upon whether a party (intending to defeat the arbitration agreement) refuses to appoint an arbitrator in terms of the arbitration agreement, or moves a proceeding before a judicial authority in the face of such an arbitration agreement.32. In relation to the nature of intervention, the exposition of the law is to be found in the decision of the Supreme Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. [Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC 234] , (in the context of Section 45 of the Act), where the Supreme Court has ruled in favour of looking at the issues/controversy only prima facie.33. It is in this context, the Commission has recommended amendments to Sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of the judicial intervention is only restricted to situations where the court/judicial authority finds that the arbitration agreement does not exist or is null and void. Insofar as the nature of intervention is concerned, it is recommended that in the event the court/judicial authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the Arbitral Tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. In the event that the judicial authority refers the dispute to arbitration and/or appoints an arbitrator, under Sections 8 and 11 respectively, such a decision will be final and non-appealable. An appeal can be maintained under Section 37 only in the event of refusal to refer parties to arbitration, or refusal to appoint an arbitrator.’26. In Ameet Lalchand Shah and Ors Vs Rishab Enterprises and Anr reported in (2018) 15 SCC Pg 678, the Hon’ble Supreme Court held as follows :-28. “Principally four amendments to Section 8(1) have been introduced by the 2015 Amendments — (i) the relevant “party” that is entitled to apply seeking reference to arbitration has been clarified/amplified to include persons claiming “through or under” such a party to the arbitration agreement; (ii) scope of examination by the judicial authority is restricted to a finding whether “no valid arbitration agreement exists” and the nature of examination by the judicial authority is clarified to be on a “prima facie” basis; (iii) the cut-off date by which an application under Section 8 is to be presented has been defined to mean “the date of” submitting the first statement on the substance of the dispute; and (iv) the amendments are expressed to apply notwithstanding any prior judicial precedent. The proviso to Section 8(2) has been added to allow a party that does not possess the original or certified copy of the arbitration agreement on account of it being retained by the other party, to nevertheless apply under Section 8 seeking reference, and call upon the other party to produce the same.” (Ref.: Justice R.S. Bachawat's Law of Arbitration and Conciliation, Sixth Edn., Vol. I (Sections 1 to 34) at p. 695 published by LexisNexis).29. Amendment to Section 8 by the 2015 Act, are to be seen in the background of the recommendations set out in the 246th Law Commission Report. In its 246th Report, Law Commission, while recommending the amendment to Section 8, made the following observation/comment:LC Comment:“The words “such of the parties … to the arbitration agreement” and proviso (i) of the amendment have been proposed in the context of the decision of the Supreme Court in Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya [Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya, (2003) 5 SCC 531] in cases where all the parties to the dispute are not parties to the arbitration agreement, the reference is to be rejected only where such parties are necessary [Ed.: Emphasis in original.] parties to the action — and not if they are only proper parties, or are otherwise legal strangers to the action and have been added only to circumvent the arbitration agreement. Proviso (ii) of the amendment contemplates a two-step process to be adopted by a judicial authority when considering an application seeking the reference of a pending action to arbitration. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the Arbitral Tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void.(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 or a copy accompanied by an affidavit calling upon the other party to produce the original arbitration agreement or duly certified thereof in circumstances where the original arbitration agreement or duly certified copy is retained only by the other party.”27. It is thus seen that while the amendments in 2015 and 2019 have sought to restrict the scope of judicial intervention, the scope of examination under Section 8 and 45 are slightly larger than those under Section 11. Section 11(6A) was introduced 2015 and survived only until 2019. Hence, in a suit the Court can examine prima facie as to whether the arbitration agreement is in existence or not.28. Section 5 and 16 under Part I of the 1996 Act and Section 45 under Part II thereof mandate that an Arbitration agreement must be given primacy by Courts seized of a cause, so as to enable the Arbitral Tribunal to determine all issues including jurisdiction and validity of the Arbitration Clause. Section 8 and section 45 call for examination by Courts on the matters mentioned therein. Hence, the caveat set out in Section 5 (Interference by Civil Fora only as specified under the Act) mandates the application of Section 8. This Court holds that Civil fora retain jurisdiction to examine/determine, if “no Arbitration clause exists” or has been waived (under Section 8 in Part I) or has become null and void, inoperative or incapable of being enforced (Under section 45 in Part II). The finding of waiver or whether the Arbitration agreement is null and void is also required to be prima facie.Answer to Question (b) Has the 3rd Defendant waived the Arbitration Agreement contained in the SHA by its conduct ?29. Section 8 of the 1996 Act after amendment in the year 2015 is as follows :-8. Power to refer parties to arbitration where there is an arbitration agreement.—(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party 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 along with 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.30. In Booz Allen Hamilton Vs SBI Home Finance Ltd (2011) 2 SCC 781 the Hon’ble Supreme Court elaborated on the scope and application of Section 8 and 16 of the Arbitration Act 1996. While it is true that the matter dealt with was a case under the Transfer of Property Act 1882 and enforcement of a mortgage, the dicta laid down after analysing the earlier decisions on the subject, is explicit and clear. At Paragraphs 19,25,32 and 33 it was held as follows :-19. Where a suit is filed by one of the parties to an arbitration agreement against the other parties to the arbitration agreement, and if the Defendants file an application under Section 8 stating that the parties should be referred to arbitration, the court (judicial authority) will have to decide:(i) whether there is an arbitration agreement among the parties;(ii) whether all the parties to the suit are parties to the arbitration agreement;(iii) whether the disputes which are the subject-matter of the suit fall within the scope of arbitration agreement;(iv) whether the Defendant had applied under Section 8 of the Act before submitting his first statement on the substance of the dispute; and(v) whether the reliefs sought in the suit are those that can be adjudicated and granted in an arbitration.25. Not only filing of the written statement in a suit, but filing of any statement, application, affidavit by a Defendant prior to the filing of the written statement will be construed as “submission of a statement on the substance of the dispute”, if by filing such statement/application/affidavit, the Defendant shows his intention to submit himself to the jurisdiction of the court and waives his right to seek reference to arbitration. But filing of a reply by a Defendant, to an application for temporary injunction/attachment before judgment/appointment of Receiver, cannot be considered as submission of a statement on the substance of the dispute, as that is done to avoid an interim order being made against him.29. Though Section 8 does not prescribe any time-limit for filing an application under that section, and only states that the application under Section 8 of the Act should be filed before submission of the first statement on the substance of the dispute, the scheme of the Act and the provisions of the section clearly indicate that the application thereunder should be made at the earliest. Obviously, a party who willingly participates in the proceedings in the suit and subjects himself to the jurisdiction of the court cannot subsequently turn around and say that the parties should be referred to arbitration in view of the existence of an arbitration agreement. Whether a party has waived his right to seek arbitration and subjected himself to the jurisdiction of the court, depends upon the conduct of such party in the suit. (Emphasis applied)32. The nature and scope of issues arising for consideration in an application under Section 11 of the Act for appointment of arbitrators, are far narrower than those arising in an application under Section 8 of the Act, seeking reference of the parties to a suit to arbitration. While considering an application under Section 11 of the Act, the Chief Justice or his designate would not embark upon an examination of the issue of “arbitrability” or appropriateness of adjudication by a private forum, once he finds that there was an arbitration agreement between or among the parties, and would leave the issue of arbitrability for the decision of the Arbitral Tribunal. If the arbitrator wrongly holds that the dispute is arbitrable, the aggrieved party will have to challenge the award by filing an application under Section 34 of the Act, relying upon subsection (2)(b)(i) of that section.33. But where the issue of “arbitrability” arises in the context of an application under Section 8 of the Act in a pending suit, all aspects of arbitrability will have to be decided by the court seized of the suit, and cannot be left to the decision of the arbitrator. Even if there is an arbitration agreement between the parties, and even if the dispute is covered by the arbitration agreement, the court where the civil suit is pending, will refuse an application under Section 8 of the Act, to refer the parties to arbitration, if the subject-matter of the suit is capable of adjudication only by a public forum or the relief claimed can only be granted by a special court or Tribunal.31. It is therefore clear that the once a suit is filed by a party to an arbitration agreement the other party must at the earliest stage in the proceedings or at the time when the first statement of defence to the Plaintiffs claims file an application under 8. It is only then, that the Court may refer the parties to Arbitration after applying the tests in the Booz Allen Case (Supra),.32. The effect of the amendment to Section 8 has already been discussed in Ameet Lalchand Shah and Ors Vs Rishab Enterprises and Anr (Supra). Courts are required to consider the following, post the 2015 Amendments :-(i) the relevant “party” that is entitled to apply seeking reference to arbitration, has been clarified/amplified to include persons claiming “through or under” such a party to the arbitration agreement;(ii) scope of examination by the judicial authority is restricted to a finding whether “no valid arbitration agreement exists” and the nature of examination by the judicial authority is clarified to be on a “prima facie” basis;(iii) the cut-off date by which an application under Section 8 is to be presented has been defined to mean “the date of” submitting the first statement on the substance of the dispute; and (iv) the amendments are expressed to apply notwithstanding any prior judicial precedent.33. The proviso to Section 8(2) has been added to allow a party that does not possess the original or certified copy of the arbitration agreement on account of it being retained by the other party to nevertheless apply under Section 8 seeking reference and call upon the other party to produce the same.34. The following considerations are to be borne in mind by a judicial authority when considering an application seeking the reference of a pending action to arbitration.i) The judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void.ii) If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the Arbitral Tribunal.iii) However, if the judicial authority concludes that the agreement does not exist, its conclusion will be final and not prima facie.iv) The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void.35. It follows from the above that a prima facie examination of whether an arbitration agreement has been waived or does not exist, is a part of the decision of a Court under Section 8. A Court, while holding this has to make a fair attempt to ascertain whether a party to the arbitration agreement has by conduct waived its right to have its disputes adjudicated by Arbitration.36. On similar lines is the Supreme Court Decision in the Sukanya Holdings decision (Supra). At paragraph 12 it was held as follows12. For interpretation of Section 8, Section 5 would have no bearing because it only contemplates that in the matters governed by Part I of the Act, the judicial authority shall not intervene except where so provided in the Act. Except Section 8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the Arbitral Tribunal, if: (1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that the Arbitration Act does not oust the jurisdiction of the civil court to decide the dispute in a case where parties to the arbitration agreement do not take appropriate steps as contemplated under sub-sections (1) and (2) of Section 8 of the Act.37. While it is true that the Sukanya Holdings and Booze Allen decisions (Supra) were rendered before the amendment to Section 8, the aforesaid paragraph would be most relevant to refer to, in view of the decisions of Kvarner Case (Supra), Secur Industries Ltd Case (Supra) and the National Aluminium Case (Supra) cited by Mr. Salve. These decisions cannot be applied in the instant case as in the facts of these cases, the Civil Suits were filed after the Reference was made, or the arbitrability of the dispute before the forum in question was not in issue.38. In Ramasamy Athappan (Supra), Justice Ramasubramanian, of the Madras High Court (as his Lordship then was) stated at paragraph 48,48. The concept of holding the parties to their bargain and driving them to arbitration is based on the principle of one-stop adjudication. If the parties are already engaged in gorilla warfare at several locations in the battle field, asking them to submit to arbitration, in addition to those proceedings, would not serve the purpose for which an arbitration clause is provided for. Arbitration is devised as an alternative dispute resolution mechanism and not as an additional dispute resolution mechanism. Therefore I am of the opinion that the Defendants 6 and 10 have made the arbitration agreement (or clause) inoperative-by resorting to a series of litigation before various fora.39. The said decision was upheld by a Division bench of that Court in an appeal carried by one of the respondents C.G. Holdings (Supra) where the Division Bench of the Madras High Court headed by Justice R. Bhanumati (as her Lordship then was) at paragraphs 110 to 114 held as follows :-110. In determining whether a party has waived its right to arbitration, the Court examines the following factors:-(i) Whether the party's actions are inconsistent with the right to arbitrate;(ii) Whether the litigation machinery has been substantially invoked;(iii) Whether dispute arising out of the contract was adjudicated and whether in judicial process important events had taken place;(iv) Whether delay affected or prejudiced the opposing party.111. The learned counsel for the appellants contended that the arbitration clause does not prohibit the filing of Company Petition, which mainly pertains to the management of the Company and thus filing of Company Petition is subject to the right of the party in requesting to refer the dispute to arbitration. It was further contended that a party cannot be said to have waived his right merely because the criminal cases were registered.112. As pointed out earlier, several criminal cases have been filed and number of quash petitions also came to be filed. Of course a party does not waive his right to invoke the arbitration of the dispute by filing of criminal complaints. when a party deliberately choses not to adopt a particular course of action, the arbitration agreement becomes inoperative and as the parties have waived or abandoned the arbitration clause, by invoking the jurisdiction of Civil Court, the doctrine of waiver applies. The appellants had the option to go before ICC even in 2005, but the appellants chose to file C.P. No. 65 of 2005 and also stoutly defended C.P. No. 76 of 2005 filed by ORE Holdings. Even in C.P. No. 76 of 2005, the appellants have not sought for reference to arbitration. By agitating the matter before the Company Law Board for nearly two years, and filing the Civil Suit in O.S. No. 90 of 2007 before District Munsif's Court, Kangeyam, by their conduct, the appellants must be deemed to have given a go bye to the arbitration clause.113. The parties have been engaged in pitched battle before the Company Law Board and orders were passed by the Company Law Board on 13.8.2008. When the matter was pending before the Company Law Board, the Company Law Board has passed interim orders at various stages. The learned counsel for Plaintiffs would submit that even settlements/proposals have been made disclosing parties intentions and discovery process has been utilised. We find much force in the contention of the respondents that Athappans and ORE have spent considerable time and money before the Company Law Board. In so far as O.S. No. 90 of 2007 pending before District Musnif's Court, Kangeyam, the suit is ready ripe for trial and the respondents are diligently defending the same. Having initiated proceedings before various forums, cannot now seek to invoke arbitration as an additional remedy.114. Thus, the appellants initiated/participated substantially in various litigation proceedings. As pointed out earlier, after the Company Law Board passed the order (13.8.2008) directing CEPL to return the investment made by ORE and Athappans, by letter dated 20.8.2008, in compliance of the order of Company Law Board, appellants offered to pay the amount of Rs. 545.52 lakhs as the sum refundable to N. Athappan in full settlement. The waiver is clearly implicit from the acts of the appellants, which indicates their intention not to proceed with the arbitration. On the facts and circumstances of the case and in view of the pitched battle of litigations between the parties, the learned single Judge rightly held that there is a waiver by estoppel and that the arbitration clause in JVA has become “inoperative”. The said conclusion is based on materials on record warranting no interference. We do not find any ground for interference with the order of the learned single Judge allowing injunction application - A. No. 277 of 2008 restraining C.G. Holdings and K.C. Palanisamy from proceeding with the arbitration and dismissing A. No. 1270 of 2008 filed by the appellants under Section 45 of Arbitration and Conciliation Act.40. In Shanti Conductors (Supra) the Gauhati High Court has, in similar facts, held as follows, which Court cites with approval:-9. In the case at hand, the application under section 8 was made by the Defendants after the written statement stood submitted. Hence, this application was not maintainable. The fact that the existence of the arbitration clause was admitted in the plaint or asserted in the written statement is immaterial inasmuch as the Court, under section 8, can refer for arbitration a dispute pending in a civil suit only when the party or parties concerned make application for getting the dispute referred to arbitration. If despite existence of arbitration clause, the parties choose to contest the suit, the powers under section 8 cannot be invoked.41. The only contesting 3rd Defendant had originally filed an application under Section 9 and abandoned further remedies under the 1996 Act, after failing to obtain favourable orders from this Court. The said Defendant thereafter went on to contest the instant suit at the interlocutory stage in G.A.No.117 of 2017, for over 2 months without a whisper about the Arbitration agreement. An affidavit in opposition was filed to the said interlocutory application substantially indicating its defence in the suit. No mention of the arbitration agreement is made therein. The Defendant then went on to file a comprehensive Written Statement of Defence taking objections and addressing on merits each of the claims in the plaint individually and specifically. It is not until the expiry of three full years that the said Defendant has moved for RFA. It could therefore safely be said that the 3rd Defendant has waived the Arbitration agreement and has submitted to the jurisdiction of this Court for all intents and purposes. The Arbitration agreement has been rendered inoperative by waiver.Answer to question (C) Would an averment in the Written Statement of defense that it is being filed “Without Prejudice to the Arbitration agreement” constitute an application under Section 8 of the 1996 Act ?42. The next issue to be determined is the use of the expression “Without prejudice to the Arbitration Clause” by the Defendant No.3 in its written statement, and whether the Defendant must have deemed to have made an application under Section 8 as a consequence thereof. It is now settled by judicial dicta set out hereinabove, and a plain reading of Section 8, that what is contemplated is making of a formal, clear and unequivocal application seeking reference to Arbitration. A clear, specific and overt Act in the form of an independent, stand alone application is required to be made. The Defendant has not done this. The Defendant has referred to the Arbitration agreement in his written statement but has not prayed or pleaded that it seeks reference of the Disputes to Arbitration. With respect, this Court is unable to accept the decisions of the Delhi High Court in the cases of Parasramka Holdings Pvt Ltd (Supra) and Sharad P Jagtiani (Supra) as referred to in the case of SSIPL Lifestyles Ltd Vama Apparels (India) Pvt Lt and Anr being order dated 19th February 2020 passed in CS (COMM) 735/2018, I.As. 15576/2018, 2756/2019, 2757/2019 & 2758/2019, that an even such a pleading in the written statement would amount to an application under Section 8.43. The language of Section 8 before and after the amendments is explicit and clear. It requires a formal, independent, specific application before and or at the time of the filing of the written statement for seeking reference to Arbitration. This has clearly not been done by the 3rd Defendant. The expression “without prejudice to the Arbitration agreement” cannot, therefore, come to the rescue of the Defendant. The said application is required to be made at the earliest stage in proceeding and or with the written statement. The Defendant’s conduct to the contrary is further confirmation of the waiver and abandonment of the Arbitration Clause.44. Actions taken “without prejudice” do not totally negate them or revive the reserved stand at the drop of a hat. The expression without prejudice cannot be a ruse to approbate and reprobate. The validity of such reservation is to be determined in the facts of each case.45. Reference in this regard is made to the case of Tarapore and Company Vs Cochin Shipyard, reported in (1984) 2 SCC 680. At paragraph 33 it was stated as follows :- “33. Before we conclude on this point we must take note of a contention of Mr Pai that the respondent cannot be estopped from contending that the arbitrator had no jurisdiction to entertain the dispute as the respondent agreed to the submission without prejudice to its rights to contend to the contrary. It is undoubtedly true that in the letter dated March 29, 1976 by which the respondent agreed to refer the dispute to the arbitrator, it was in terms stated that the reference is being made without prejudice to the position of the respondent as adopted in the letter meaning thereby without prejudice to its rights to contend that the claim of the appellant is not covered by the arbitration clause. In the context in which the expression “without prejudice” is used, it would only mean that the respondent reserved the right to contend before the arbitrator that the dispute is not covered by the arbitration clause. It does not appear that what was reserved was a contention that no specific question of law was specifically referred to the arbitrator. It is difficult to spell out such a contention from the letter. And the respondent did raise the contention before the arbitrator that he had no jurisdiction to entertain the dispute as it would not be covered by the arbitration clause. Apart from the technical meaning which the expression “without prejudice” carries depending upon the context in which it is used, in the present case on a proper reading of the correspondence and in the setting in which the term is used, it only means that the respondent reserved to itself the right to contend before the arbitrator that a dispute raised or the claim made by the contractor was not covered by the arbitration clause. No other meaning can be assigned to it. An action taken without prejudice to one's right cannot necessarily mean that the entire action can be ignored by the party taking the same. In this case, the respondent referred the specific question of law to the arbitrator. This was according to the respondent without prejudice to its right to contend that the claim or the dispute is not covered by the arbitration clause. The contention was to be before the arbitrator. If the respondent wanted to assert that it had reserved to itself the right to contend that no specific question of law was referred to the arbitrator, in the first instance, it should not have made the reference in the terms in which it is made but should have agreed to the proposal of the appellant to make a general reference. If the appellant insisted on the reference of a specific question which error High Court appears to have committed, it could have declined to make the reference of a specific question of law touching his jurisdiction and should have taken recourse to the Court by making an application under Section 33 of the Arbitration Act to have the effect of the arbitration agreement determined by the Court. Not only the respondent did not have recourse to an application under Section 33 of the Arbitration Act, but of its own it referred a specific question of law to the arbitrator for his decision, participated in the arbitration proceeding, invited the arbitrator to decide the specific question and took a chance of a decision. It cannot therefore, now be permitted to turn round and contend to the contrary on the nebulous plea that it had referred the claim/dispute to the sole arbitrator without prejudice to its right to contend to the contrary. Therefore, there is no merit in the contention of Mr Pai.”46. The Haynes Vs Hirst (supra) decision of the Supreme Court of New South Wales, Australia at Pg 489 makes interesting reading.“A party cannot, except in a strictly limited class of cases, protect himself against the legal consequences of his acts by stating that he does them without prejudice. No one, for instance, would suggest that a person could protect himself against liability for a breach of promise of marriage by taking the precaution of making the offer without prejudice. Nor can a debtor, who gives notice that he is about to suspend payment of his debts, protect himself against the consequences flowing from the commission of this act of bankruptcy, by giving such notice “without prejudice” : In re Daintrey; Ex parte Holt ([1893 2 Q.B. 116). Nor, in my view, could a person, having a right to sue either in tort or in contract in respect of a claim arising out of the one transaction, preserve his right to sue in tort after suing in contract, by prefacing his declaration by the averment that he sued in assumpsit without prejudice to his right to sue in tort. For similar reasons it appears to me that a purchaser, having the option of either repudiating the contract by reason of a defect in title, or of keeping it alive for the benefit of the other party as well as his own, cannot, while electing to treat the contract as subsisting and requiring the vendor to remove the objection and to alter his position to his detriment in attempting to do so, avoid the consequences flowing from this exercise of his election by stating that he does so without prejudice to his right to repudiate. In plain language a man can only elect one, and when once he has elected he is bound by his election and cannot against avail himself of his former option, merely because he claimed in the first instance to exercise his election without prejudice. A man, having eaten his cake, does not still have it, even though he professed to eat it without prejudice.”47. The 3rd Defendant, in this suit and prior thereto, clearly appears to have been speculative. Not having obtained favourable orders in A.P.1034 of 2016 (Supra), it tried its luck in this Suit in G.A.117 of 2017 in vain. Even an appeal from the order dated 17th February 2017 (Supra) has failed. The third Defendant clearly and unequivocally submitted to the jurisdiction of this Court and waived the Arbitration agreement. The belated reference to Arbitration is thus another instance of a speculative after thought. The conduct of the Defendants is akin to a “fishing expedition”, an expression used in Private International Law.48. Mr Harish Salve relied upon the decision of Superintendent Central Excise, IDD Jabalpur and Ors (supra), particularly paragraph 6 thereof, where the dictionary meaning of the expression “without prejudice” has been set out and used in the facts. A quasi-judicial order of the Appellate Collector that was passed against a decision of an Assistant Collector was in question before the Supreme Court. This decision has no application in the facts of the case.49. In, Chairman MD NTPC Vs Reshmi Construction (Supra) the Supreme Court explained that the expression “without prejudice” may differ in meaning in different situations. At paragraph 32 it was stated that:-“32. Even correspondences marked as “without prejudice” may have to be interpreted differently in different situations.33. What would be the effect of without-prejudice offer has been considered in Cutts v. Head [(1984) 2 WLR 349 : (1984) 1 All ER 597 : 1984 Ch 290 (CA)] wherein Oliver, L.J. speaking for the Court of Appeal held: (All ER p. 613e-g) “In the end, I think that the question of what meaning is given to the words ‘without prejudice’ is a matter of interpretation which is capable of variation according to usage in the profession. It seems to me that, no issue of public policy being involved, it would be wrong to say that the words were given a meaning in 1889 which is immutable ever after, bearing in mind that the precise question with which we are concerned in this case did not arise in Walker v. Wilsher [(1889) 23 QBD 335 (CA)] and the court did not deal with it. I think that the wide body of practice which undoubtedly exists must be treated as indicating that the meaning to be given to the words is altered if the offer contains the reservation relating to the use of the offer in relation to costs.”34. Yet again in Rush & Tompkins Ltd. v. Greater London Council [(1988) 1 All ER 549 : 1989 AC 1280 : (1988) 2 WLR 533 (CA)] it was held: (All ER pp. 551g-552b)“The rule which gives the protection of privilege to ‘without prejudice’ correspondence ‘depends partly on public policy, namely the need to facilitate compromise, and partly on implied agreement’ as Parker, L.J. stated in South Shropshire DC v. Amos [(1987) 1 All ER 340 : (1986) 1 WLR 1271 (CA)] (All ER at p. 343, WLR at p. 1277). The nature of the implied agreement must depend on the meaning which is conventionally attached to the phrase ‘without prejudice’. The classic definition of the phrase is contained in the judgment of Lindley, L.J. in Walker v. Wilsher [(1889) 23 QBD 335 (CA)] , qbd at p. 337: ‘What is the meaning of the words “without prejudice”? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’Although this definition was not necessary for the facts of that particular case and was therefore strictly obiter, it was expressly approved by this Court in Tomlin v. Standard Telephones and Cables Ltd. [(1969) 3 All ER 201 : (1969) 1 WLR 1378 (CA)] , All ER at pp. 204, 205, WLR at pp. 1383, 1385, per Danckwerts, L.J. and Ormrod, J. (Although he dissented in the result, on this point Ormrod, J. agreed with the majority.) The definition was further cited with approval by both Oliver and Fox, L.JJ. in this Court in Cutts v. Head [(1984) 2 WLR 349 : (1984) 1 All ER 597 : 1984 Ch 290 (CA)] , All ER at pp. 603, 610, Ch at pp. 303, 313. In our judgment, it may be taken as an accurate statement of the meaning of ‘without prejudice’, if that phrase be used without more. It is open to the parties to the correspondence to give the phrase a somewhat different meaning e.g. where they reserve the right to bring an offer made ‘without prejudice’ to the attention of the court on the question of costs if the offer be not accepted (see Cutts v. Head [(1984) 2 WLR 349 : (1984) 1 All ER 597 : 1984 Ch 290 (CA)] ) but subject to any such modification as may be agreed between the parties, that is the meaning of the phrase. In particular, subject to any such modification, the parties must be taken to have intended and agreed that the privilege will cease if and when the negotiations ‘without prejudice’ come to fruition in a concluded agreement.”50. This Court is of the clear view that the filing of a written statement without prejudice to the Arbitration Clause is not the equivalent to an application under Section 8 and thereby consequences of waiver of arbitration cannot be avoided. It is now a well settled proposition, that where a statute prescribes that something ought to be done in a particular manner it has to be done only in that way. Rights cannot be “kept in the sleeve” for being used as per the whim and fancy of a party. Rights cannot be claimed, contrary to and militating against, the prescribing statute. Given the complete primacy given to an Arbitration agreement under the 1996 Act, a Defendant cannot be allowed to blow hot and cold or be a fence sitter. He has to exercise a clear and prompt option as statutorily available. This Court is thus of the clear view that the Defendant No.3 has waived the Arbitration agreement and hence the same does not exist. The third Defendant has by its conduct, unequivocally submitted to the jurisdiction of this Court.51. Useful reference may be made to the decision of the Supreme Court in the case of Kandla Export Corporation and Ors Vs OCI Corporation and Anr reported in (2018) 14 SCC Pg 715. It was held at 19 as follows :-19. The Court went on to discuss this Court's judgment in Union of India v. Mohindra Supply Co. [Union of India v. Mohindra Supply Co., (1962) 3 SCR 497 : AIR 1962 SC 256] and ultimately concluded: (Fuerst Day Lawson case [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , SCC p. 371, paras 89-91)“89. It is, thus, to be seen that the Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672] ) was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the Uncitral Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, usin
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g the lucid expression of Tulzapurkar, J., that it carries with it “a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done”. In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. Answer to Question (d) Are the issues in the Suit and the RFA different.52. The prayers in the plaint and the relevant pleadings in the Statement of Claim in the RFA have been set out hereinabove. It is absolutely clear and evident that the common lis between the party are the Shareholders Agreements, the exclusive supply agreement and failure to give effect to the said exclusive supply agreement. While the Plaintiff seeks specific performance of the agreements, the 3rd Defendant seeks termination of the same and wishes to exercise its exit option. The termination of the SHA by the Defendant No.3 was subject matter of the said application under Section 9 and has also been pleaded in the plaint. The Defendant No 3 admitted in the written statement (at Paragraph 4 set out hereinabove) that the SHA has been terminated. The letter dated 3rd March 2017 only seeks to add further reasons for the termination. The issue as regards Termination of the SHA, was clearly subject matter of the suit. The said letter dated 3rd February 2017 can definitely be produced in the suit. The termination of the SHA is a consequence of the disputes and differences pleaded in the suit and the RFA. It is therefore held, that the subject matter of the RFA and the Suit are substantially similar if not the same. Answer to Question (e) Can Court order stay of RFA when the Defendant has not filed an application under Section 8 of the 1996 Act ? What would be the law to be applied in such situations ?53. The next argument advanced by Mr. Harish Salve, is that the 1996 Act does not permit stay of the Arbitration proceedings. It is argued that, the Arbitral Tribunal will decide the validity of the Arbitration Agreement. I am unable to accept the argument for more than one reason. It is a contractual choice of forum or statutory forum, that keeps the parties away from a civil forum. Even such compulsion is subject to the exceptions in the statute or carved out by judicial dicta. Hence, the power of the Court to stay Arbitration must be impliedly read into the 1996 Act. It is indeed true that provisions similar to Section 35 of the 1940 Act have been left out of the 1996 Act. However, to allow an Arbitration to proceed even after the Defendant has waived the Arbitration agreement, or that the same is null and void or inoperative would be a travesty of Justice.54. Useful reference is made in this regard to the decision of the Devi Resources Limited (Supra). A division bench of this Court has at Pr 53 held as follows :-53. While it is impossible to imagine every possible ground that can be urged by a party to arrest the initiation or the continuation of a foreign arbitral reference even by inviting an injunction in personam, there can be certain broad categories in which such grounds may be placed. There could be classes of cases challenging the jurisdiction of the foreign arbitral tribunal on the ground of the very existence of the arbitration agreement or the efficacy of the arbitration agreement or the survival of the arbitration agreement or the jurisdiction of the arbitral tribunal. Likewise, an antiarbitration injunction may be sought on the ground of the incapacity of the party seeking the injunction or grounds of overwhelming inconvenience to such party. Another class of reasons invoked to seek an anti-arbitration injunction could be the egregious fraud committed by the party seeking to initiate or pursue the arbitral reference or of the arbitral reference being patently vexatious or unbearably oppressive. In every case, it is the duty of the court to exercise extreme caution and circumspection before issuing an anti-suit or anti-arbitration injunction and, as high authorities instruct, the injunction should be in personam and issued against a party amenable to the jurisdiction of the court issuing the injunction and not issued against a foreign court or a foreign arbitral tribunal.55. A similar view has also been taken by the Supreme Court of Wesstern Australia, by Allanson J in the Caratti Vs Caratti decision (Supra) in respect of Sec. 8 of the Commercial Arbitration Act 2012 (WA) Australia which is similar to Sec. 8 of the 1996 Act. Section 5 and 8 of the said Act are set out hereinbelow.“5. Extent of court intervention (cf. Model Law Art 5) In matter governed by this Act, no court must intervene except where so provided by this Act. 8. Arbitration agreement and substantive claim before court (cf. Model Law Art 8)(1) A court before which an action is brought in an matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.(2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”56. At Paragraph 12 of the Caratti decision (Supra) it was observed as follows :-“  If cl 11 of the 2002 Deed is an arbitration agreement, Allen has submitted his first statement on the substance of the dispute. The court is not required to refer the parties to arbitration under s 8(1) of the Commercial Arbitration Act 2012 (WA). Section 8(2) of that Act permits arbitral proceedings to be commenced or continued, and an award made, while the issue is pending before the court. John submits that provision is permissive only, and subject to the power of the court to restrain them. In my opinion, the submission is correct and the court may restrain parallel arbitral proceedings where that course is necessary to protect its own proceedings or processes or, more generally, where the administration of justice so demands.”57. Mr. Salve also relies on sub-section (2) of Section 8 to submit that the proceedings before the Arbitral Tribunal would have to continue parallelly with the instant Suit. This argument cannot be accepted as Sub Section (2) would come to play only after Section 8 is invoked by the Defendant. It is rather contradictory on the part of the Defendant, to on one hand argue that its application is not under Section 8 and on the other hand, invoke the provisions of sub section (2) thereof.58. The Defendant next pleaded that the Plaintiff, in response to the notice of reference to the ICC, had sought time to respond on the ground that the pandemic prevented it from obtaining suitable legal advice. It was argued that the plaintiff had not challenged the jurisdiction of the ICC or the reference and hence must be deemed to have accepted it. This argument is also not acceptable. In terms of the 1996 Act, post suit, it is only the Civil forum that can decide, under Section 8, as to whether the Arbitration agreement has been waived or not.