JUDGMENT

SABYASACHI MUKHARJI J:— This application for leave to appeal is from the decision of the Division Bench of the High Court of Bombay, dated 26th April, 1988. By the said decision the Division Bench summarily dismissed the appeal thereby affirming the order of the learned single Judge of the High Court. On 12th January, 1980 the petitioner herein signed what has been treated as the first contract with the respondent for the supply of 5000 Mts. of Indian H.P.S. Groundnut Kernels Javas (hereinafter referred to as the said goods) for the year 1979-80. The second contract in respect of the same was signed for 4000 Mts. on 3rd April, 1980.

2. On 18th August, 1980 since 3100 Mts. of the remaining first contract and total of 4000 Mts. of the second contract had not been supplied, the contract was extended for t he balance quantity for the next crop season 1980-81. On 20th December, 1980 the petitioner informed the respondent not to nominate any vessels to load goods as they were unable to get necessary clearance from the Government. The petitioner on 27th January, 1981 sent a telex informing the respondent that the goods could not be exported on account of executive/ legislative ban on such exports.

3. On 6th March, 1981 the Federation of Oil Seeds and Fats Association (FOSFA) informed the petitioner by its letter of the appointment of an arbitrator because of non-shipment due to Governments refusal. Thus the respondent invoked the arbitration proceedings with FOSFA. On 19th March, 1981 the petitioner filed a petition in the Delhi High Court challenging the arbitration proceedings by FOSFA. The Delhi High Court on 23rd March, 1981 passed a stay order and restrained the arbitration proceedings by FOSFA. On 11th December, 1981, the Delhi High Court held that no arbitration agreement existed with regard to the second contract dated 3rd April, 1980 and as such none was entitled to seek reference to arbitration. It was further held that vis-a-vis the first contract dated 12th January, 1980 there was an arbitration clause existing. The National Agricultural Co-operative Marketing Federation of India Ltd., filed a special leave petition in this Court on 1st April, 1982 challenging the decision of the Delhi High Court on the ground that there was no valid FOSFA arbitration clause incorporated in the first contract dated 12th January, 1980. On 2nd December, 1982 this Court passed an interim order granting special permission to the respondent to file a money suit in any court against the respondent since the claims were getting barred by time. The said order stated as follows :

"The order of this Court dated 30-4-1982 is modified to the extent that Alimenta S.A. is at liberty to file suit against N.A.F.E.D. in respect of its claims/disputes under the two contracts dated 12-1-1980 and 3-4-1980. It is directed that such suit shall not constitute abandonment of the pending arbitrations instituted/commenced by Alimenta S.A. against N.A.F.E.D. or in any manner prejudice the said arbitrations or any awards made therein or the enforcement thereof and shall not prejudice Alimentas contention in any of the cases."

4. On 17th December, 1983 the respondent filed a regular money suit No. 488 of 1984 for an amount of US $.1,70,39,544 (equivalent to Rs. 17,93,93,440) and interest on the same of US $.11,23,500/- (equivalent to Rs. 11,23,35,000/-). Written statement was filed by the respondent raising several objections, inter alia, limitation, maintainability etc. On or about 24th July. 1984, the respondent filed another identical suit in the Bombay High Court being suit No. 2657/84 for recovering damages for which the written statement was filed on 20th March, 1984. The respondent also filed another identical suit No. 1241 of 1981 in the High Court on 21st March, 1985 for which also the written statement was filed. The SC on 9th January, 1987 (reported in AIR 1987 SC 643) held that there was a valid arbitration clause of the first contract dated 12-1-198