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"Both ONGC and Contractor hereby agree that once the amounts payable and receivable as detailed above including the Income-tax Deduction at Source has been paid and received, there shall lie no claim on any account whatsoever either by ONGC on the Contractor or by the Contractor on ONGC and the aforesaid contracts shall be deemed to have been closed and both the Parties shall have discharged their respective obligations in respect of the said contracts."

That MoU is duly signed by the parties and witnesses.

(c) It is for the arbitral Tribunal to rule on its own jurisdiction, including any objection with respect to the existence or validity of Arbitration Agreement.

(d) The MoU is void, as it is executed under economic duress and coercion.

(e) There has been unjust enrichment on the part of the Respondent, and, therefore, for restitution of unjust enrichment, the matter is required to be referred to arbitration.

8. To these, Mr. Zaiwala, learned Counsel appearing on behalf of the Respondent, submitted that (a) in view of the MoU dated 9th September, 1993, the contract, which was executed in 1989 stands cancelled and the said MoU does not contain any arbitration clause. Hence, there is no question of referring the matter to arbitration, (b) the dispute, if any, was finally settled in terms of the MoU and the Applicant has accepted the amount in full and final satisfaction of its claim. The subsequent allegation of coercion is an afterthought and a device to get over the settlement of the dispute, acceptance of the payment and the receipt voluntarily given and (c) this Application is filed beyond time, because if this Application seeks to rely upon the earlier contract, that contract was executed on 26th May, 1987 and the works under the said contract was completed on 21st March 1989. Therefore, in any case, the Applicant was required to file the Arbitration Application within three years from that date. With regard to fresh contract or MoU, it is executed on 9th September, 1993. The amount is received by the Applicant on 13th September, 1993. After receipt of that amount as per MoU, Notice of Arbitration was given on 10th August, 1996 and this Application for referring the matter for arbitration was lodged before this Court on 9th September, 1996.

16. From the aforesaid discussion it is clear that the parties can put an end to a contract as if it had never subsisted and can substitute it with a new contract governing their rights and obligations. In such a case, the arbitration clause in the original contract perishes. In such a case, the arbitration clause in the substituted or abrogated contract cannot be invoked for the determination of the questions under the new agreement for a claim to set aside a contract on the grounds such as fraud, duress or coercion. Once the contract is substituted by a new contract, the old contract does not subsist. In a contract which is substituted or abrogated, the parties have no right to invoke the clause which has perished with the contract. In such a case, there is no question of appointing arbitrator as the very jurisdiction of the Arbitrator is dependent upon the existence of the arbitration clause. Facts of the present case clearly reveal that parties to the contract, which was executed in 1987, have subsequently agreed to bring it to an end to all intents and purposes and to treat it as if it had never existed by substituting a fresh MoU. Fresh contract does not provide for arbitration and it has been specifically stated in the MoU that both the parties have discharged their respective obligations in respect of the contract. In full and final settlement the Applicant had received the amount stated in the MoU for the work done. Hence for that purpose there existed no arbitrable dispute for reference.

20. In any case, whether fresh contract/MoU is void or not on the ground of economic duress or coercion cannot be decided in this proceeding,

21. Lastly, the contention of the learned counsel for the Applicant that there has been unjust enrichment on the part of the Respondent, and, therefore, for restitution of unjust enrichment, the matter is required to be referred to arbitration, is required only to be stated for its rejection. In this proceeding, this question also cannot be decided.