Soumen Sen, J.

Glencore, the sole defendant in the suit, has filed this application essentially for dismissal of the suit.

The application has been made under Order 7 Rule 11 read with Section 151 of the CPC.

The plaintiff has filed a suit against the defendant praying, inter alia, for declarations that there was no contract either dated June 10, 2008 or June 17, 2008 between R. Piyarelall Import & Export Ltd. (hereinafter referred to as “RPI”) and Glencore and further declarations that no arbitration agreement exists between the parties and for perpetual injunction to restrain Glencore from proceeding further with arbitration before GAFTA and certain incidental reliefs.

The plaintiff is a dealer in peas and pulses. The defendant is an exporter of French yellow peas.

The summaries of the facts made out in the plaint are: -

i) A contract dated 17th April, 2008 was entered between Glencore and State Trading Corporation of India Ltd. (hereinafter referred to as “STC”) for sale by Glencore of a quantity of 21,500 metric tonnes of French yellow peas on agreed terms and conditions;

ii) Subsequently, the plaintiff (hereinafter referred to as “RPI”) entered into an agreement dated 19th May, 2008 with STC for purchase of 21,500 metric tonnes of French yellow peas on high sea sale basis and any quality or quantity claim was to be lodged and pursued by STC at the cost of RPI but the claim proceeds would be reimbursed to RPI; and no claim would lie against STC by reason of any quality or quantity claim;

iii) In performance of their contract STC opened a Letter of Credit through Vijaya Bank in favour of Glencore.

iv) In terms of the contract dated April 17, 2008, Glencore shipped 18,106.698 MT of goods in seven consignments from Rouen, France, to the Port of Navasheva, Mumbai;

v) Glencore obtained payment for the entire quantity of goods shipped by invoking the letter of credit upon presentation of the required documents.

vi) Upon inspection at Navasheva, Mumbai, of all the seven consignments shipped by Glencore only one consignment covered by Bill of Lading No.MSCUFU510761 conformed to the specifications and the other contractual specifications.

vii) The quality of the goods were found to be substandard. The plaintiff could only sell 19.920 metric tonnes and that too at a lower price of Rs.18,410 MT.

viii) The goods under the aforesaid six consignments were of un-merchantable quality and by reason thereof, the plaintiff had suffered loss and damages being the price paid for the entire balance quantity of 16084.982 M.Ts French Yellow Peas. The expenses incurred by the plaintiff for the said goods was US$1156460.65 which is equivalent to Indian Rs.47,41,53,190/- at the prevailing exchange rate.

ix) By reason of the breach of the terms of the contract by the defendant, the plaintiff had suffered loss and damages for the sum of Rs.47,41,53,190/-.

x) The plaintiff on 16th June, 2009 received a notice from the defendant at its office at 12, Government Place (East), Kolkata to a claim for arbitration and in the said notice, there is reference to an alleged contract dated 10th June, 2008 allegedly replacing another alleged contract dated 17th April, 2008. By the said notice, the defendant has informed the plaintiff that they were claiming arbitration in accordance with the Rule of Grain & Feed Association in respect of the alleged contract dated 10th June, 2008 for the same of 21,000 M.Ts, 5% more or less, of French Yellow Peas and one Mr. Libre has been appointed as Arbitrator by the defendant.

xi) There is no contract dated 10th June, 2008 between the plaintiff and the defendant and there is a contract dated 17th April, 2008 between STC and the defendant for the sale of 21,500 M.Ts, 5% more or less, of French Yellow Peas pursuant to which 18106.698 M.Ts of French Yellow Peas have been shipped and payment has been obtained under the said letter of credit for such quantities.

xii) There is no agreement dated 10th June, 2008 between the