Judgment

DUTT, J. :- These two appeals by special leave one preferred by the National Agricultural Co-operative Marketing Federation of India Ltd. (for short NAFED) and the other by Alimenta S.A. (for short Alimenta), a Swiss Company are both directed against the judgment of the Delhi High Court dated December 11, 1981 whereby the application of NAFED under S. 33, Arbitration Act, 1940, has been allowed in part.

2. A contract dated January 12, 1980 was entered into by and between the parties, namely, NAFED and Alimenta for the sale and supply of 5,000/8,000 M.T. of HPS groundnut kernels Jaras. After the usual terms as to quality, quantity, price, etc., the contract provided in clause 11 thereof as follows: -

"Other terms and conditions as per FOSFA 20 contract terms."

The expression FOSFA means the Federation of Oils, Seeds and Fats Association Ltd. Subsequently, another contract dated April 3, 1980 was entered into between the parties in respect of 4,000 metric tonnes of groundnut kernels. Clause 9 of this contract provided as follows :-

"All other terms and conditions for supply not specifically shown and covered hereinabove shall be as per previous contract signed between us for earlier supplies of H.P.S."

3. The FOSFA-20 contract contains an arbitration clause which is as follows: -

"Arbitration : Any dispute arising out of this contract, including any question of law arising in connection therewith, shall be referred to arbitration in London (or elsewhere if so agreed) in accordance with the Rules of Arbitration and Appeal of the Federation of Oils, Seeds and Fats Association Limited, in force at the date of this contract and of which both the parties hereto shall be deemed to be cognizant. Neither party hereto. nor any person claiming under either of them shall bring any action or other legal proceedings against the other of them in respect of any such dispute until such dispute shall first have been heard and determined by the arbitrators, umpire or Board of Appeal (as the case may be) in accordance with the Rules of Arbitration and Appeal of the Federatior,, and it is hereby expressly agreed and declared that the obtaining of an Award from the arbitrators, umpire or Board of Appeal (as the case may be), shall be a condition precedent to the right of either party hereto or of any person claiming under either of them to bring any action or other legal proceedings against the other of them in respect of any such dispute."

4. Disputes and differences arose between the parties. Alimenta alleged that NAFED committed breach of their obligations under both the contracts and sought to commence arbitration proceedings. On the other hand, on March 19, 1981, NAFED filed a petition in the Delhi High Court under S. 33, Arbitration Act, 1940 alleging, inter alia, that there was no valid arbitration agreement between the parties. It was contended by NAFED that when it agreed in clause 11 of the first contractthat the parties would be governed by the terms and conditions of FOSFA-20 contract, it only had in mind such terms and conditions as would govern the relationship between the parties. Further, the fact that there was an arbitration clause in FOSFA-20 contract came as a complete surprise to NAFED. In other words, it was sought to be contended that NAFED was not at all aware of any arbitration clause in FOSFA-20 contract and, accordingly, it could not agree to incorporate any such arbitration clause in the contracts in question. The said petition under S. 33, Arbitration Act, was opposed by Alimenta.

5. A learned Single Judge of the High Court came to the finding that in view of the fact that NAFED had been nominated as the canalising agent for export of HPS groundnut under the provisions of the Export Control Order by the Central Government. it would not be unjustified to assume that the Senior Manager of NAFED was well aware of the foreign trade in groundnut and the implications of reference to FOSFA-20 contract when he put his signat