If the subsequent agreement creates new rights and liabilities which can be considered as a new agreement between the parties then the arbitration clause under the old agreement will not apply to such new rights and liabilities.

JUDGMENT - SUJATA V. MANOHAR, J.:---This is a Notice of Motion taken out by the defendants for the stay of the suit under the provisions of section 34 of the Arbitration Act, 1940. The predecessors in title of the plaintiffs entered into an agreement dated 23rd June, 1961 under which the plaintiffs agreed to supply to the defendants saleable raw petroleum coke produced at the Nunemati Refinery of the Indian Refineries Limited at a price of Rs. 124/- per metric ton exclusive of excise duty, sales tax and other taxes. The agreement provided that the standard of moisture-content of the petroleum coke was as specified in Schedule "A" annexed to the agreement. The actual moisture-content was to be determined from time to time by analysis in the laboratory of the said refinery and rebate at the rates specified in Schedule 'B' annexed to the agreement was to be allowed to the purchasers viz. the defendants. Under Clause 2 of the said agreement, the agreement was to be initially for a period of 7 years and was renewable, at the option of the purchaser for further periods of 5 years on the same terms and conditions except as to price which may be mutually agreed upon. Under Clause 3 of the said agreement delivery of all saleable raw petroleum coke was to be given at the Refinery Coke yard and the purchaser was required to remove the same at his own costs. Delivery was required to be taken within 7 days from the notice given by the company to the purchaser. Payment was to be made within 7 days of the receipt of the bills. There were other provisions in the said agreement relating to deposit etc. Under Clause 10 of the said agreement it was provided as follows :---

"10. If any dispute or difference arises between the parties to these present regarding any of the matters arising out of or connected with the same or regarding the interpretation of those presents or otherwise, the matter in dispute or difference shall be referred to the arbitration of the Indian Chamber of Commerce, under the rule of the Tribunal of arbitration at the said Chamber, provided that at the option of the Company, the arbitration proceedings shall be held at Bombay".

2. Under a writing dated 22nd April, 1970, an agreement finalised at the meeting of both the parties held on 25th May, 1969 was recorded. Under this agreement it was agreed that the agreement of 23rd June, 1961 was renewed for a period of 5 years as provided under Clause 2 of the agreement of 23rd June 1961. The price however, was increased to Rs. 165/- per metric tonne and certain additional clauses were inserted in the original agreement of 23rd June, 1961. These clauses relate to (1) payment of penalty, (2) carnage charges, (3) haulage charges and (4) a force major clause. Under these new clauses it was provided that the purchaser was to uplift all available coke produced at Gauhati Refinery on a regular basis every week so as to avoid accumulation and congestion in the Refinery's coke yard. It was inter alia provided that the accumulated quantity of coke in the Refinery's coke yard should not fall below 2500 metric tonnes and should not exceed 4500 metric tonnes. There were other provisions relating to lifting of coke in excess of 4500 metric tonnes in the manner provided in the said clauses. The defendants were also given the facility of using the said plaintiffs crane for removing the raw petroleum coke from the plaintiffs coke yard on payment of certain charges. Under the terms relating to haulage charges, the defendants were required to arrange their own shunter for loading the coke wagons. There was also a force major clause as set out in the said agreement. The original agreement as altered at the meeting of 25th May, 1969 remained in force till 1974. Thereafter, the parties recorded a memorandum of understanding arrived at between them at meetings held on 11th, 12th and 13th of March, 1974. This memorandum relates to the supply of raw petroleum coke at Barauni refinery under an agreement d

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