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5. The Government of India launched an initiative for development of Mega Power Projects for easing the power deficit in the country. This initiative was launched in the year 2005-2006 and accordingly in August 2007, Reliance Power Ltd. was awarded the first Ultra Mega Power Project which is located in village Sasan, District Singrauli, in the State of M.P. and for the purpose of execution of this project, three captive coal blocks were also allotted to M/s Reliance Power Project. On 20th September 2007, Reliance Power Project executed a Memorandum of understanding with North America Coal Corporation (NACC-US) and based on the aforesaid understanding on 1.1.2009, Sasan Power Ltd., the appellant's Company entered into an association agreement for mine development and operation with NACC-US. On 1.4.2011, NACC-US vide an assignment agreement assigned all its rights, liabilities and obligations under the association agreement of 1.1.2009 to the respondent Company namely, North America Coal Corporation, India (hereinafter referred to as “NACC- India”). By this assignment agreement all the rights and obligations under the original Association Agreement dated 1.1.2009 with respect to NACC-US was transferred to NACC-India. In the course of carrying out various activities and work in pursuance to the agreement, disputes started arising between the parties and on 23.7.2014, the respondent Indian Company issued a letter of termination in respect of the associate agreement on 8.8.2014 and also filed a request for arbitration with the International Council for Arbitration (ICC) being Arbitration No.20432/TO and claimed a compensation to the tune of 18,259,301=16 US Dollars along with compound interest. The documents evidencing the association agreement dated 1.1.2009, the assignment agreement dated 1.4.2011, the termination of association agreement dated 23.7.2014 and the request for arbitration are filed as Annexure A/2, A/3, A/4, A/5 and A/6 respectively. On 20th October 2014, the appellant sent to the ICC its reply to the respondent's request for arbitration without prejudice to their legal right as may be available and on 10.11.2014 filed the suit in question in the District Court at Singrauli being Civil Suit No.4A/2014 and on 11.11.2014, ex-parte injunction was granted against the ICC for proceeding with the arbitration. In the meanwhile, on 2nd December 2014 the respondents informed all concerned that it intends to respect the terms of the ex-parte injunction granted by the Indian Court but simultaneously NACC- US on 12.12.2014 wrote to the ICC intimating that the appellant's letter dated 20th November, 2014, placing on record its objection should be treated as an answer to the request for arbitration and consequentially a second request for arbitration was filed by NACC-US vide its communication dated 12.12.2014. On 22.12.2014 appellant sent their response to this and on 6.1.2015 appellant received a letter from ICC with regard to the second request for arbitration and were granted 30 days period to give their response. It is said that the appellant without prejudice to their rights raised and submitted their objection. On 7.1.2015 in the Civil Suit in question, the injunction was extended by the learned District Judge and in the meanwhile, respondent filed two applications being I.A.No.5/2015 under Order VII Rule 11 CPC read with Section 45 of the Act of 1996 and I.A.No.4/2015, an application under Order 39 Rule 4 CPC seeking vacation of the ad interim injunction granted. In between the matter came to this Court in a Miscellaneous Appeal at the instance of the respondent challenging the injunction granted and this Court passed an order on 14.1.2015 directing the District Judge to decide the applications filed by the respondent i.e. I.A. No.4/2015 and I.A. No.5/2015 within a period of one month. The proceedings were held and by the impugned order passed on 19.3.2015 as the objection of the respondent has been upheld, this appeal has been filed. In the meanwhile, appellant filed a second suit challenging the action of the NACC-US in requesting for arbitration and simultaneously without prejudice to their right, nominated their arbitrator in the arbitration proceedings pending with ICC.

8- It is said that the Assignment Agreement was signed in India between two Indians and NACC US Company, by the said Agreement relinquished all its rights and obligations in favour of the respondent Indian Company; accordingly, the Agreement in question becomes an agreement between two Indian Companies and, therefore, the provisions of Section 45 were not attracted. Learned Senior Counsel further invited our attention to the judgments of the Supreme Court in the case of Union of India Vs. Kishori Lal Gupta and Brothers, AIR 1959 SC 1362; Young Achievers Vs. IMS Learning Resources Private Limited, (2013) 10 SCC 535, to say that an arbitration clause in an Agreement cannot survive if the agreement containing the arbitration clause has been superceded or novated by a later agreement. It was submitted that the arbitration agreement originally contained in section 12 of the Association Agreement stands assigned in favour of the respondent after execution of the Assignment Agreement; accordingly, post assignment, the Arbitration Agreement does not fall in the category of an International Commercial Arbitration as defined under section 2(1)(f) of the Act of 1996 and, therefore, Part II of the Arbitration Act in its entirety and section 45 in particular will not apply in the matter of arbitration between two Indian companies.

62- The intention of the parties to arbitrate has been emphasized by the Supreme Court in the case of Enercon (India) Limited (supra) and if it is found that the intention of the parties was to resolve their dispute through arbitration, then it is the bounden duty of the Court to give effect to the intention of the parties. 63- In the present case, if the test laid down with regard to the provisions of section 45; the intention of the parties; and, the principle of least intervention not only crystallized in the case of Enercon (India) Limited (supra), but also in the case of Chatterjee Petroleum Company (supra), is taken note of, it would be seen that once the parties have agreed to resolve their dispute by arbitration and when the learned Court below has only referred the parties for arbitration, this Court should not interfere into the matter until and unless the agreement is itself found to be null or void or inoperative. 64- After analyzing the matter as detailed herein above, we find that in this case even though initially the association agreement was entered into between the petitioner-Company and NACC US on 1st January 2009 but by virtue of the assignment agreement NACC US assigned all its rights, obligations and liabilities to the Indian subsidiary i.e. NACC-India, thereafter certain dispute have arisen between the two Indian Companies, when the claims and vouchers issued by the respondents was not honored by the appellant. As a result vide Annexure A/5 dated 23rd July, 2014, the respondent terminated the association agreement. In the association agreement under Section 12(1) a detailed arbitration procedure is contemplated for resolution of the dispute. As per the agreement entered into in the said clause, the seat of the Arbitration is London and the arbitration is to be undertaken as per the law applicable at the place of arbitration. Even though Shri Tankha, learned Senior Counsel tried to indicate that in view of the law laid down in the case of Kishori Lal (supra) and Young Achievers (supra) when an agreement is novated or assigned, the arbitration clause goes, we are unable to accept the said contention. The novation agreement only permits the Indian Company to step into the shoes of American Company but all other terms and conditions contained in the Association Agreement of 1st of January, 2009 continued to be existing between the parties and the appellant and respondents agreed to carry out the work as per original Association Agreement dated 1st January 2009. It was said that the entire section 12(2) of the Association Agreement goes and there cannot be an arbitration in accordance to the aforesaid provision. It was said that section 12 of the Association Agreement also stands novated on execution of the Assignment Agreement. It was argued that post assignment, the arbitration agreement does not fall within the definition of International Commercial Arbitration. This argument cannot be accepted in the Assignment Agreement it is indicated that NAC ( i.e. the US Company ) has incorporated NACC India and desires to transfer and assign all of NAC’s rights and obligations under the Association Agreement to NACC India, which desire is accepted and as Reliance is also willing to such consent and assignment entered into, i.e. the Assignment and Assumption Agreement, and it goes to indicate that NAC transfers and assigns all its rights and obligations under the Agreement to NACC India and as provided under Section 15(6) of the Association Agreement i.e… the provision for Succession and Assignment, transfers and assigns all of its rights and obligations to NACC India; and, thereafter NACC India accepts the transfer and assignment and assumes all NAC’s obligations and in Clause 2, the following stipulations are contained in the assignment agreement: