A.S. Oka, J.

1. A Notice of Motion was taken out by the appellants-defendants in the suit filed by the respondents-plaintiffs for seeking an order to refer the dispute in the suit to arbitration. By the impugned order, the said Notice of Motion has been dismissed by the learned Single Judge.

2. There was a Clearing and Forwarding Agency agreement (for short “the said Agreement”) executed by and between the plaintiffs and the defendants on 1st January 2007. In the said agreement, the plaintiffs were described as Sellers and the defendants were described as Clearing and Forwarding Agents. The defendants agreed to act as agents of the plaintiffs' products for the purpose of importing/stocking the products and selling the products as instructed at the risk of the plaintiffs.

3. The case made out in the plaint is that upon the request of the defendants, the plaintiffs supplied and delivered certain pharmaceutical products to the defendants between the period from January 2008 till November 2009. Total 14 invoices were raised by the plaintiffs upon the defendants in respect of the pharmaceutical products supplied to the defendants. The plaintiffs drew 14 Bills of Exchange, the particulars of which have been set out in paragraph 5 of the plaint. According to the case of the plaintiffs, the Bills of Exchange were duly accepted by the defendants for payment. The case made out in the plaint is that the defendants have accepted the Bills of Exchange drawn by the plaintiffs which were payable to the Bankers of the plaintiffs or to their orders. According to the case of the plaintiffs, they paid and discharged the dues of their Bankers under the Bills of Exchange and therefore, they are entitled to recover the amounts payable under the Bills of Exchange from the defendants. The plaintiffs are relying upon Section 145 of the Indian Contract Act, 1872. According to the case of the plaintiffs, the defendants in their several emails acknowledged the outstanding amount due and payable to the plaintiffs. As the amount was not paid, the summary suit which is the subject matter of this appeal was filed by the plaintiffs for recovery of the amounts more particularly specified in Exhibit-C to the plaint together with interest at the rate of 18% thereon.

4. The suit was lodged after the learned Single Judge granted leave under clause 12 of the Letters Patent. The plaintiffs took out Summons for Judgment. The Defendants took out a Notice of Motion for seeking an order to refer the dispute in the suit to arbitration in accordance with Rules of Arbitration of International Chamber of Commerce to be held at Berlin and decided as per the German law. The said Notice of Motion was taken up for hearing on which impugned order has been passed by the learned Single Judge holding that as the plaintiffs have filed the suit purely on the basis of the Bills of Exchange and not under the contract, the arbitration clause namely Article 12.1 of the said agreement cannot come into force. Therefore, Notice of Motion was dismissed.

5. Reliance was placed by the defendants on Articles 12.1 and 12.2 of the said Agreement dated 1st January 2007. Articles 12.1 and 12.2 read thus:

“ARTICLE 12 – Miscellaneous

12.1 Any dispute between the parties, whether resulting from a provision in this agreement or from the applicable statutory law, which may arise in connection with this Agreement, or the interpretation, application, implementation, validity or termination of this Agreement or of any provision thereof shall exclusively be referred to and finally settled by Arbitration in accordance with the rules of Arbitration of the International Chamber of Commerce as valid at the date of the proceedings, excluding ordinary proceedings. The place of Arbitration proceedings shall Berlin.

12.2 The validity, construction and performance of agreement shall be governed by German Law. The contractual language is English. The parties further agree that English shall be the language applicab