A subsequent agreement that supersedes the original contract and does not contain an arbitration clause will not be governed by the arbitration clause in the original contract.

( 1 ) QUESTIONS for decision in this appeal from an order of the learned single Judge rejecting the application filed by the appellants under section 34 of the Arbitration Act are: (1) whether the original contract of sale between the parties containing an arbitration clause stood superseded by the subsequent arrangement agreed to between them and (2) whether the appellants have taken part in the proceedings of the suit to disentitle them to the relief under section 34 of the Arbitration Act, 1940.

( 2 ) THE respondent. Bird and Co. (Private) Limited, hereinafter called "the plaintiff", filed a suit for recovery of Rs. 32,14,850. 12 p. with the allegation that during the period between June II, 1968 and December, 24, 1968 the defendants, M/s. Dadri Cement Company and its sole proprietor Shri Ram Krishna Dalmia alias Ram Krishna Harjimull (defendants 1 and 2 respectively) contracted to purchase from them heavy cement bags and between February, 1969 to August, 1969 they despatched to the defendants these bags by rail or truck under railway receipts or truck consignment notes, and along with the railway receipts or the truck consignment notes they sent through the Central Bank of India, Darya Ganj, Delhi, relevant invoices and twenty-two bills of exchange, payable 1. 20 days after sight, representing the price of the bags supplied and interest for 120 days. The railway receipts and/or truck consignment notes were delivered by the Bank to the defendants, on the latter s acceptance of the said 22 bills of exchange and the defendants on the basis of these receipts and consignment notes took deliveries of the bags. On maturity of the bills they failed to honour them and to make the payments. According to the plaint, the defendants represented that they were in financial difficulties and the amount due from them aggregating to Rs. 31,42,064. 30 may be accepted in instalments. They also offered to get the payment of instalments guaranteed by defendant No. 2 and further to secure the amount by pledge of debentures and shares held by defendant No. 2 in Edward Keventer (S) Private Limited and Durga Enterprises Private Limited. The plaintiff agreed to these proposals. In pursuance of this arrangement, on September 13, 1969 the defendants executed an agreement acknowledging the above stated amount to be due from them and agreed to pay the same in instalments in terms of the agreement with interest at the rate of 10 per cent per annum. Defendant No. 2 guaranteed payment of this amount by a deed of guarantee and also pledged with the plaintiff the debentures/shares of the face value of rupees sixty-four lakhs by separate documents executed in favour of the plaintiff. To effectuate this arrangement, defendant No. 2 also executed an irrevocable power of attorney in favour of the plaintiff in regard to the transfer of shares if the instalments were not paid. Defendant No. 1, in terms of the arrangement, did make payment of one instalment due under the agreement dated September 13, 1969 but defaulted thereafter and made no other payment. Hence the suit. The relief prayed in the suit was in the following terms:-

"the plaintiff prays for: - (a) a decree for a sum of Rs. 32,14,850. 12p. against the defendants and in favour of the plaintiff. (b) Interest at the agreed rate of 10 per cent per annum from the date of suit till payment. (c) A decree for sale of the shares and debentures pledged with the plaintiff shown in Schedule attached to Annexure e . (d) Cost of the suit. (e) Such other or further relief or reliefs as this Hon ble Court may deem fit. "

( 3 ) THE suit was filed on May 12, 1970. On the same date the plaintiff made an application (I. A. 630 of 1970) under Order 38 rule 5 and Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure praying for attachment before judgment of immovable property and the shares and debentures of defendant No. 2 mentioned in the schedule annexed to the application and for i