( 1 ) A Dealer Sales Agreement ('dsa' for short) was entered into on 1. 11. 1996 between Escorts Yamaha Motors Limited (claim to be the predecessor-in-interest of the defendant) and the plaintiff for sale and service of Escorts Yamaha motors Limited products. The agreement was operated and apparently some disputes arose between the parties inasmuch as the plaintiff owed amounts to escorts Yahama Motors Limited.

( 2 ) ON 8. 12. 2000, an agreement/memorandum of Understanding ('mou' for short) was entered into by exchange of letters. The matter did not get resolved even thereafter with the result that a legal notice was served by the plaintiff on the defendant dated 2. 8. 2004 pointing out the alleged failures of the defendant in complying with the terms of the MOU dated 8. 12. 2000. In view of these disputes, the defendant invoked the arbitration clause in the DSA dated 1. 11. 1996 being clause 'l', which is as under:

"l. ARBITRATION: 1. The PARTIES agree that any dispute arising out of or in connection with this Agreement shall be settled in accordance with the Rules of Indian Council of Arbitration. The venue of arbitration shall be New Delhi. "

( 3 ) THE plaintiff has thereafter filed the present suit for a decree of declaration and permanent injunction. The plaintiff seeks a decree of declaration that there is no subsisting arbitration clause between the parties and for injunction against the proceedings before the arbitrator so appointed by the Indian Council of Arbitration.

( 4 ) SUMMONS in the suit and notice in the application were issued on 19. 10. 2006 when interim orders were granted in favour of the plaintiff. The defendant entered appearance on 8. 1. 2007. The defendant had been served much earlier but no written statement was found on record. The defendant was directed to file the written statement along with documents in accordance with law and the suit was listed for settlement of issues on 17. 4. 2007. The interim order was continued. A date was also fixed before the Joint Registrar for admission/denial of documents on 14. 2. 2007. The defendant failed to file any written statement or documents and thus no effective proceedings took placed on 14. 2. 2007. On 17. 4. 2007 when the matter was listed before the Court, in the absence of any reply the interim order was made absolute during the pendency of the suit. No written statement was again available on record but learned counsel for the defendant stated that he had filed the written statement in the morning of the same date. The written statement was permitted to be taken on record on a concession of the learned counsel for the plaintiff subject to the payment of rs. 5,000. 00 as costs. The order also notes the statement of learned counsel for the defendant that the copy of the DSA dated 1. 11. 1996 and the MOU dated 8. 12. 2000 are not disputed, the originals of which are with the defendant. The defendant was directed to file the two agreements to be exhibited as Exhibit D-1 and Exhibit D-2. The parties stated that the controversy revolved around the interpretation of the two agreements and no oral testimony would be required.

( 5 ) ON the pleadings of the parties, the following issues were framed:

"1. Whether the Memorandum dated 8. 12. 2000 was in abrogation of the earlier Sales Agreement dated 1. 11. 1996 or was supplemental in nature? Onus on parties 2. Relief. "

( 6 ) SINCE no oral testimonies were required to be led and only the aforesaid two agreements were to be relied upon by the parties, the suit was set down for hearing. The suit was listed on 7. 8. 2007 when the counsel for the defendant was not available and thus was renotified for hearing today.

( 7 ) LEARNED counsel for the plaintiff points out that the defendant has failed to pay costs till date and thus no written statement can be taken on record. The defendant has also failed to file the aforesaid two original documents, which were to be exhibited as Exhibit D-1 and Exhibit D-2.

( 8 ) IN re

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