2. That SPPL will refund the entire amount of ₹ 12 Crores with interest calculated @24% p.a. The interest will be calculated from the date of receipt of advance of ₹ 12 Crores and till the entire amount together with interest is refunded by SPPL to AHCL.

3. That the entire amount of ₹ 12 Crores together with interest thereon would be refunded by SPPL to AHCL latest by 31st December, 2013 failing which AHCL shall be at liberty to adjust amount due to SPPL in any other account.

4. That AHCL shall not claim any right on the Said Land or the Project being developed on the Said Land.

5. That this Deed of Cancellation is subject to jurisdiction of Courts at New Delhi.”

6. On the other hand, the case of the respondent herein before the learned Single Judge was that the Deed of Cancellation dated April 20, 2013, which did not contain any arbitration clause was in supersession of the MoU dated July .....

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..... ight of the defence of the defendant of such adjustment, cannot be said to be arising out of the MoU, to be covered by the arbitration clause in the MoU.

19. The facts and circumstances of the present case thus do not make out a case of survival of the arbitration clause in the MoU.”

8. That apart, the learned Single Judge has also relied upon the judgment of the Supreme Court in Damodar Valley Corporation Vs. K.K. Kar (1974) 1 SCC 141; Chatterjee Petrochem Company Vs. Haldia Petrochemicals Ltd. (2014) 14 SCC 574; Hema Khattar Vs. Shiv Khera (2017) 7 SCC 716, Nalini Singh Associates Vs. Prime Time – IP Media Services Ltd. 2008 (106) DRJ 734; C.E. Construction Ltd. Vs. Intertoll ICS Cecons O&M Company Pvt. Ltd. 2017 SCC OnLine Del 6401 and other judgments has dismissed the application.

9. Mr. Vivek Kohli, learned counsel for the appellant would make similar submissions as were made before the learned Single Judge and had also placed reliance on the judgment of the Bombay High Court in Mulheim Pipecoatings GmbH (supra). According to him, the .....

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..... xpressly incorporated an arbitration clause in the MoU and having not done that in the Deed of Cancellation, the necessary implication is that they have decided not to incorporate the same. The MoU stands superseded by the Deed of Cancellation. A fresh agreement has been entered without arbitration clause.

13. Insofar as the other submissions made by Mr. Kohli by placing reliance on the judgment in the case of Mulheim Pipecoatings GmbH (supra) is concerned, in Mulheim Pipecoatings GmbH (supra), the Bombay High Court has summarized the law in terms of the following paragraphs:-

“(i) The arbitration agreement constitutes a collateral term in the contract which relates to the resolution of disputes and not to the performance of the contract. Whereas the substantive terms of a contract define the rights and obligations of the parties, an arbitration agreement provides for modalities agreed upon by parties for the resolution of their disputes. Parties agree thereby to have their disputes resolved before an arbitral tribunal as distinct from the ordinary courts of law in the jurisdiction;

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..... r impeaching the arbitration agreement must be based on facts which are specific to the arbitration agreement. There may, of course, be facts which are specific to both the main agreement and the arbitration agreement, but there may well be facts which are specific to the main agreement, but not to the arbitration agreement. In the former case, the arbitration clause would perish with the main contract while in the latter case, it would not. Another way of considering the matter is whether it is the further performance of the contract that is brought to an end or it is the existence of the contract which is brought to an end. In the former case, where the further performance of the contract has been brought to an end, the arbitration clause would survive whereas when the existence of the contract is itself brought to an end, the arbitration clause would not survive.”

(emphasis added)

14. Whereas the reliance placed by the respondent on the judgment of the Coordinate Bench of this Court in Young Achievers (supra), the Court has summarized the law in paras 8 to 16, which are reproduced as under:-

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..... hat the parties gave up the terms of the old contracts, including the arbitration clause. The case-law referred to by the learned counsel in this connection does not, in our view, lend support to his broad contention and indeed the principle on which the said decisions are based is a pointer to the contrary.

9...These observations throw considerable light on the question whether an arbitration clause can be invoked in the case of a dispute under a superseded contract. The principle is obvious; if the contract is superseded by another, the arbitration clause, being a component part of the earlier contract, falls with it... But where the dispute is whether the said contract is void ab initio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. So too, if the dispute is whether the contract is wholly superseded or not by a new contract between the parties, such a dispute must fall outside the arbitration clause, for, if it is superseded, the arbitration clause falls with it."

(emphasis supplied)

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..... agreement with no arbitration clause for adjudication of disputes, the application of the appellant was rightly rejected.

 16. We may add that, even otherwise, suppose there was no dispute about any item relating to the Exit Paper, then can it really be said thereafter a number of years if the trademark is infringed that the respondent will still have to resort to the contract where there was an agreement inter se the parties for mutual business containing the arbitration clause? The answer to this obviously would be in the negative.”

(emphasis added)

15. That apart, we find, as noted by the learned Single Judge, even the judgment of the Division Bench in Young Achievers (supra) has been upheld by the Supreme Court, wherein the Supreme Court in paras 7 and 8 has held as under:-

“7. Exit paper would clearly indicate that it is a mutually agreed document containing comprehensive terms and conditions which -admittedly does not contain an arbitration clause. We are of the view that the Hig .....

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