Ashina Exports Pvt. Ltd. vs Boutique International and Others

Mahmood Ali Khan, J.—This order will dispose of an application of the defendant filed u/s 11 and 12, Order 7 Rule 11 and Order 23 read with Section 151 of the Civil Procedure Code. Briefly stated the facts are that the plaintiff has filed a suit for recovery of UK pound sterling 157,620 equivalent to Rs. 94,57,200/- with pendentelite and future interest at the rate of 24% till the date of realisation of the amount from the defendant. The plaintiff is a company incorporated under the Indian Companies Act. The defendant no. 1, conversely, is a partnership firm, having defendant no. 2 to 5 as partners. In the plaint it is alleged that in June, 1995 the plaintiff represented itself to be a buying house and defendant no. 1 placed an order for supply of ladies garments for their ultimate export to a foreign buyer namely M/s. Burton Group, PLC, Oxford Street, London, U.K. The payment was to be made by an irrevocable letter of credit (LC) and the garments were to be manufactured according to the specifications provided by the defendant no. 1 in terms of the letter of credit. One of the material term was that defendant no. 1 would carry out a daily inspection of the goods before their shipment. The plaintiff after manufacturing the ladies garments in accordance with the requirement forwarded it to the defendant no. 1. Thereafter, the plaintiff raised 5 invoices for a total amount of UK sterling 111,000 equivalent to Rs. 66,60,000/-. Pre shipment inspection was carried out by the defendant no. 1 and an inspection certificate was issued. The irrevocable LC was issued by Hongkong and Shanghai Banking-Corporation, London payable at site in favour of defendant no. 1. The defendant no. 1 in order to pay for the entire goods manufactured and supplied by the plaintiff in terms of the contract between the two got the aforesaid LC transferred in favour of the plaintiff through negotiated Banks namely the United Western Bank Limited, New Delhi. United Western Bank Limited on 29.9.1995 sent a letter pointed out some discrepancies in the documents and further stated that the document in respect of the said LC would be, made "reserve". Subsequently, Union Bank of India by letter dated 29.9.1995 wrote to the plaintiff pointing to certain discrepancies allegedly pointed out by the defendant no. 2. The defendant no. 1 also allegedly threatened to claim reimbursement of the amount from the plaintiff if the bills were not paid by the defendant. On 29.9.1995 the plaintiff wrote back to the Union Bank of India clarifying the discrepancies to be superfluous. These alleged discrepancies were pointed out after the goods were received by the buyer. Apprehending that the amount of the LC would be remitted back to the negotiating bank United Western Bank Ltd, the plaintiff filed a civil suit No. 2310/95 for grant of injunction against remittance and an ad interim injunction was also filed. This court by order dated 9.10.1995 restrained the Union Bank of India from remitting the amount of Rs. 41,87,945/- to the United Western Bank Ltd. Initially the suit was settled between the plaintiff and the two banks, the Union Bank of India and United Western Bank Ltd and was disposed of in terms of order dated 8.5.1996. In the order the court had observed that the plaintiff was at liberty to seek his remedy against the buyer. The terms of the order were complied with. As per legal advice the plaintiff filed an action against M/s. Burton Group PLC Ltd in U.K. The claim was dismissed by the deputy Master Chiasm and this order was affirmed by the High Court of Justice Queen''s Bench Division, London, U.K. The plaintiff had manufactured and supplied goods against the order placed by M/s. Boutique International and the goods were inspected and certified by the defendant no. 1. The defendant no. 1 however, played a fraud on the plaintiff and as an after thought alleged defective quality and discrepancies in the documents depriving the plaintiff from receiving the outstanding price of goods by the defendant no. 1 to the plaintiff. The defendant no. 1 is liable to make the payment and the defendants jointly and severally are liable to make the payment. Hence the suit.

The suit was contested by the defendants by filing the written statement. By way of preliminary objections it was pleaded that the suit did not disclose cause of action against the defendants and was also barred by the principles of res-judicata. The plaintiff has suppressed the true facts. The plaintiff failed to get relief in the courts in India and U.K. and the suit suffers from laches. It is also estopped from filing the suit. Besides the suit is bad for misjoinder and non joinder of necessary parties as Union Bank of India, which were plaintiffs bankers, the United Western Bank and Hongkong and Shanghai Banking Corporation, which were bankers of Button Group PLC, U.K. have not been impleaded. Union Bank of India and United Western Bank were parties to Suit No. 2310/95 which was filed on the same cause of action and in which the defendant no. 1 was also subsequently impleaded as a party. The plaintiff has not filed the amended memo of parties. This suit is also bad for non joinder of defendants no. 2 to 5 who were not impleaded to the earlier suit. In the earlier proceedings the plaintiff had alleged that Burton Group, PLC was responsible for its losses and even sought permission to seek its remedy against the Burton Group. Burton group has not been impleaded as party in this suit. So suit is bad for non joinder of that party. The defendants denied that they were a buying house and contended that they were Government recognised export house. The plaintiff offered to supply garments which was their specialty or which the defendant no. 1 could itself not manufacture and supply to the buyers as per export orders received by it. The Burton PLC, U.K. were seeking a supplier of garments in accordance with its terms contained in transferable irrevocable LC. The defendant no. 1 did not have capability to manufacturing the goods therefore decided to transfer the supply of the goods to the plaintiff without demand or consideration. In order to help the plaintiff company and provide it with some export business the defendant no. 1 had elected to enable the foreign buyers to source its goods from the plaintiff. The buyer has already provided a transferable LC which required pre shipment inspection certificate to be provided by the defendant no. 1. For paucity of time it was not possible to change the wording of the documentary credit to alter the inspection certificate requirement. So it was agreed that the pre shipment certificate would be provided by defendant no. 1 as a gesture of goodwill to the Burton Group, PLC, U.K. to carry out any liability. The plaintiff did not pay for the said inspection certificate and also did not receive consideration from the foreign buyers. It was agreed that the defendant''s no. 1 involvement would be without any liability. The defendants never contacted as a buyer for the foreign buyers since the payment was to be rooted directly to the plaintiff and not through the defendant. The plaintiff had accepted the LC which was subjected to certain terms and conditions. The payment of the LC could not be made unless all terms of the documentary credits were carefully complied with. The plaintiff did not comply with the terms and conditions as pointed out in the discrepancies note issued by the bank. Discrepancies were also not removed by them. Even the goods were not supplied on time etc. The plaintiff in the civil suit No. 2310/95 falsely alleged that the goods have been received by the buyer. The plaintiff impliedly acknowledged that the defendant no. 1 has no liability in this transaction by not impleading it as a party to the suit initially. Subsequently it was impleaded along with the foreign buyers and an amended memo of party was filed which has been suppressed from the court and copy of the unamended cause title has been filed alongwith the suit in order to mislead the court. The suit was also subsequently compromised with the plaintiff and the two banks. The previous suit was based on the same cause of action. It was compromised between the plaintiff and the two banks who were defendants no. 1 and 2 therein. There was no cause of action against the defendant no. 1, who was defendant no. 4 in the said suit. The present suit is malafide and not maintainable against the defendants. It is barred by Section 11, Order 2 Rule 2 and Order 23 CPC. Other averments have also been controverted.

In the replication the plaintiff refuted the allegations that it had suppressed facts or that the plaint did not disclose cause of action or the suit was bad for misjoinder of the parties or that it was barred by Section 11 Order 2 Rule 2 and Order 23 CPC etc. It was also denied that the defendant no. 1 is not liable to pay the amount claimed in the suit. The allegations made in the plaint were also reaffirmed.

The defendants filed the instant application for dismissal of the suit or rejection of the plaint being barred in view of Sections 11 and 12, Order 23 Rule 1 CPC. The facts stated in the application were similar to those pleaded in the written statement. The plaintiff resisted this application by filing a reply on the grounds which are identical to the grounds pleaded in the plaint and the replication. The facts stated in the application and the reply, therefore, need not be reproduced again.

I have heard the learned Counsel for the parties and gone through the record. The defendants are seeking dismissal of the suit and rejection of the plaint on the ground: 1) the plaintiff is barred by the principles of res-judicata u/s 11 CPC; 2) The suit is also barred by Section 12 and Order 2 Rule 2 CPC; 3) the plaint does not disclose cause of action so the plaint is liable to be rejected under Order 7 Rule 11 CPC; 4) the previous civil suit filed by the plaintiff bearing No. 2310/95 was compromised and settled between the plaintiff and the two defendant banks and therefore, the present suit is barred by Order 23 Rule 1 CPC.

The argument of the counsel for the defendants is that the defendant no. 1 of which the defendants no. 2 to 5 are partners, is an export house. It is receiving the orders from foreign buyers for supply of garments etc. The plaintiff company wanted some export orders and approached the defendant no. 1 for diverting the orders for export in excess of their capacity in respect of the garments manufacturing of which was their specialty. Burton Group PLC of U.K. were looking for a supplier of garments to them for which they had opened an irrevocable LC in favour of the defendant no. 1. Finding that the goods desired by the foreign buyer could not be supplied by the defendant no. 1 and the defendant no. 1 was also not equipped to manufacture the goods as per specifications of the foreign buyer, the export orders of Burton group, PLC, U.K. were transferred to the plaintiff company. The plaintiff was to make supply directly to the foreign buyer and receive payment. The goods were to be supplied strictly in accordance with the terms and conditions of the LC and one of such term was pre shipment inspection of the goods to be carried out by the defendant no. 1. Defendant no. 1 did carry out the pre shipment inspection and issued a certificate. The plaintiff failed to fulfill the conditions of the LC. It did not supply the goods by the deadline and also failed to remove the discrepancies pointed out by the United Western Bank Ltd. Counsel submitted that the plaintiff also falsely alleged that the goods had been received by the foreign buyers. Anyhow it was strenuously argued that the defendant no. 1 had no liability to make payment and it had only transferred the export orders to the plaintiff which was to supply goods to the foreign buyers directly, complying with the terms and conditions of the LC. It was pointed out that the plaintiff filed a civil suit No. 2310/95 against the two banks Union Bank of India and United Western Bank Ltd without impleading the defendant no. 1 and the foreign buyer Burton Group, PLC, U.K. in the suit. However, subsequently the defendant no. 1 was impleaded. The plaintiff filed the copy of the plaint and the civil suit as annexures to the plaint suppressing the amended memo of parties in order to mislead the court that the defendant no. 1 was not party to the suit. It is argued that the matter was compromised between the plaintiff on the one hand and the Union Bank of India and United Western Bank Ltd on the other hand and the suit was accordingly disposed of. The copy of the order would show that the plaintiff wanted to seek its remedy against the foreign buyer.

Counsel for the defendant further argued that the plaintiff filed a civil suit for recovery of the price of the goods from the foreign buyer Burton Group, PLC in a court in U.K. But its claim was rejected. An appeal was carried to the High Court of Queen''s Bench in London which also failed. It is argued that the plaintiff throughout these proceedings claimed that the foreign buyer and not the defendant no. 1, was liable for making the payment of the goods, therefore, the present suit which is filed by the plaintiff does not disclose cause of action and the plaint is liable to be rejected under Order 7 Rule 11 CPC. It is also barred by the principles of res-judicata, Order 2 Rule 2 CPC and Order 23 Rule 1 CPC read with Section 12 CPC. Counsel has taken the court through the copies of the various documents filed alongwith the written statement and which have been placed on record by the plaintiff.

Defendant''s counsel further argued that the defendant had only helped the plaintiff in getting an export order and the goods manufactured were to be supplied directly to the foreign buyer which has not been supplied and the terms of the LC have also not been fulfilled. The only role of defendant no. 1 was to carry out pre shipment inspection of the goods which was done by the defendant no. 1 only as a goodwill gesture as the time was short for changing the terms and conditions of the LC. The defendant no. 1 did not receive any consideration or payment from the plaintiff or the foreign buyer for this help. According to the counsel the discrepancies which were pointed out in the letter of United Western Bank Ltd or Union Bank of India were superfluous and the goods were not inspected before its shipment and had also been delivered to and accepted by the foreign buyer. The suit filed by the plaintiff against M/s. Burton Group, PLC, U.K. in a U.K. court has been dismissed on the ground that there was no privity of contract between the plaintiff and that party. The plaint, therefore, does not disclose cause of action against the defendant.

Controverting these arguments counsel for the plaintiff vehemently argued that the present suit is based on separate and distinct cause of action against the defendant no. 1 for recovery of the price of the goods for which the orders were placed by the defendant no. 1 for supply to be made to the foreign buyer Burton Group, PLC, U.K. It is argued that the suit bearing No. 2310/95 was for different relief on different cause of action. It was settled by a compromise between the plaintiff and the two banks. Counsel also argued that the principles of res-judicata did not apply and the suit was not barred by Section 11 and 12 of the CPC. Plaint is not liable to be rejected. It is further submitted that at this stage only the averments made in the plaint are to be looked into and the suit may be dismissed only when after trial the court does not find any cause of action against the defendant. But the plaint cannot be rejected at the preliminary stage for the reasons stated in the application or in the written statement.

Taking up the first contention that the suit was liable to be dismissed under Sections 11 of the CPC suffice to mention that this provision is not attracted in the present case. One of the essential requirement of Section 11 is that the issues raised in the subsequent suit should have been "heard and finally decided" by the court in the former suit. There are certain other requirements of the ingredients of res-judicata embodied in Section 11 which need not be discussed in view of the admitted facts. Assuming for the sake of argument, though not decided, that the previous civil suit No. 2310/95 was based on the same cause of action on which the present suit is founded it is suffice to mention that the previous suit was compromised at the initial stage and it has not been heard and finally decided on merits. Doctrine of res-judicata does not bar the present suit.

Clause (a) of Order VII Rule 11 empowers a court to reject a plaint "where it does not disclose a cause of action". First question would be as to what is the cause of action? Cause of action means the cause of action for which the suit is filed. It is a cause of action which gives an occasion for and forms the foundation of the suit. It is a bundle of facts stated to set up a right or claim in the suit. At the time of consideration whether the plaint is liable to be rejected under Order 7 Rule 11 CPC the court is not required to take into consideration the defence set up by the defendant in the written statement. It is to be decided by looking at the allegations made in the plaint itself. What is to be seen is whether on careful reading of the plaint it discloses cause of action and not the strength and weaknesses of the case of the plaintiff. The cause of action is to be culled out on reading the plaint as a whole. After trial if the court finds that the plaintiff had no light or cause of action to claim relief against the defendant the suit is to be dismissed. The plaintiff is precluded from filing another suit in respect of the same cause of action as it would be barred by Section 12 of the CPC and the doctrine of res-judicata as contained u/s 11 of the CPC. But if the plaint is rejected for want of disclosing cause of action at the initial stages Rule 11 of Order 7 CPC does not bar the plaintiff from filing another suit. As such there are two distinct pleas raised by the defendants in the application and in the written statement. First is that the suit is liable to be dismissed and the plaintiff does not have cause of action to file this suit and claim relief against the defendants. The same could not be gone into and decided at the initial stages. The second plea is about rejection of the plaint as it did not disclose cause of action. It is to be done at the preliminary stage solely on reading of the allegations made in the plaint without taking into account the defence set up by the defendants.

The plaintiff in para 3 of the plaint had alleged that after due negotiations the defendant no. 1 had placed orders for supply of ladies garments with the plaintiff for their ultimate export to the foreign buyer M/s. Burton Group, PLC, U.K. In para 4 of the plaint it was alleged that the order was placed by the defendant no. 1 and the payment was to be made by an irrevocable LC and the garments were to be manufactured according to the specifications provided by the defendant no. 1 in terms of the LC. It was also averred that one of the terms of the LC was that the defendant no. 1 would carry out a daily inspection before the shipment. In para 5 the plaintiff had alleged that it had manufactured the ladies garments in accordance with the requirements/specifications forwarded to it by the defendant no. 1 and thereafter it had raised 5 invoices for the price which in Indian rupees was equivalent to Rs. 66,60,000/-. In para 6 of the plaint allegation of the plaintiff was that as per undertaking the pre shipment inspection was carried out by the defendant no. 1 which were supplied by the plaintiff and were invoiced. In para 7 it was averred that the defendant no. 1 had represented to the plaintiff that it had an irrevocable letter of credit issued by the Hongkong and Shanghai Banking Corporation Ltd, London payable at sight in favour of the defendant no. 1. The defendant no. 1 had also transferred the LC in favour of the plaintiff through the negotiating bank United Western Bank Ltd in order to make the payment of the price of the goods. The allegations in para 8 of the plaint are that pursuant to the supply of goods in pursuance to the order of the defendant no. 1, United Western Bank Ltd sent a communication intimating some discrepancies in the documents and further stating that the payment made in respect of the LC was under reserve. The plaintiffs banker Union Bank of India thereafter also wrote to the plaintiff pointing out all the discrepancies allegedly pointed out by the defendant no. 2 partner of defendant no. 1 and further the defendant no. 1 threatened reimbursement of the amount from the plaintiff if the bills were not paid by the bank. In para 10 it was alleged that plaintiff wrote back to the bank that the alleged discrepancies were superfluous. According to the allegations made in para 13 the plaintiff had manufactured and supplied the garments but had not received any payment. In para 14 of the plaint it was alleged that the defendant no. 1 played fraud on the plaintiff since after issuing the pre shipment inspection certificate the defendant no. 1 alleged about the defective quality and also discrepancies in the documents and as such deprived the plaintiff from receiving the amount outstanding and which was due and payable by the defendant no. 1 to the plaintiff. For these reasons the defendants were jointly and severally liable to pay the price of the goods i.e. Rs. 66,60,000/-. Lastly in para 17 the allegations were that the cause of action had accrued when the plaintiff had raised invoices and supplied the goods on 8.8.1995 and 11.9.1995. It again arose when the alleged discrepancies were pointed out in September and October, 1985. It further arose on various dates when the plaintiff requested the defendant no. 1 to make the payment and the defendant failed to and/or neglected to make the payments for the goods supplied. The cause of action also arose on 13.5.1997 when the High Court in London dismissed the claim of the plaintiff against Burton Group, PLC, U.K. and it is still continuing and no part of it was barred by time.

Reading of the allegations made in the plaint as a whole at this stage shows that the order for supply of the goods was placed by the defendant no. 1 with the plaintiff. The goods were to be supplied namely to M/s. Burton Group, PLC, London. U.K. as per the specifications forwarded by the defendant no. 1 to the plaintiff in terms of the transferable irrevocable LC issued by Hongkong and Shanghai Banking Corporation Ltd. U.K. in favour of the defendant no. 1. It further showed that the pre shipment inspection of the garments was to be carried by the defendant no. 1 and the defendant no. 1 made an inspection and issued a certificate. It further showed that at the instance of defendant no. 2 partner of defendant no. 1, Union Bank of India had also pointed to some discrepancies in the documents. It was also alleged that the defendant no. 1 was a buying house and that it was liable to make the payment of the price of the goods supplied. Therefore, on conjoint reading of the various paras of the plaint it appears that the plaintiff does have cause of action to file the suit. If the plaintiff ultimately did not succeed in proving its claim against the defendant the suit will be dismissed but the plaint cannot be rejected under Order VII Rule 11 CPC at this stage.

Another contention of the defendant is that the suit is barred by Section 12 CPC, Order 2 Rule 2 CPC and Order 23 Rule 1 CPC because the suit filed by the plaintiff against the Union Bank of India, United Western Bank Ltd in which the defendant no. 1 partnership firm was also impleaded was compromised between the plaintiff and the two banks and was disposed of in terms of the order of the court dated 8.8.1996 and in view of this order the present suit is barred. As regards Section 12 of the CPC it bars institution of a suit in respect of the cause of action where the plaintiff had been precluded by rules from filing further suit in respect of that particular cause of action. Sub-clause (3) of Rule 2 of Order 2 on the other hand provided that where a person was entitled to more than one relief in respect of the same cause of action he may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted. Order 23 Rule 1(4) CPC precludes a plaintiff from instituting a fresh suit in respect of such subject matter where the plaintiff abandons a suit or claim or withdraws from suit or claim without leave of the court. The question that arises is as to what was the suit bearing No. 2310/95 and whether it was on the same cause of action on which the present suit is filed or whether the plaintiff had omitted to claim on had abounded any claim for which the present suit has been filed. It is not denied by the plaintiff that the defendant no. 1 and Burton Group, PLC, U.K. both were impleaded in the suit. Though in the plaint this fact has not been disclosed nor has the amended memo of parties been filed alongwith the copy of the plaint since the copy of the memo of parties showed that only the two banks Union Bank of India and United Western Bank Ltd were the defendants. Anyhow the copy of the plaint of the suit is at page 25 of the compilation which has been filed by the defendants. After narrating the facts of the case the plaintiff alleged that on 26.9.1995 the defendant no. 2 United Western Bank Ltd in the suit sent a communication to the Union Bank of India defendant no. 1 in the said suit pointing out to certain discrepancies in the documents of the plaintiff and further alleged that the payment in respect of the LC was being made under reserve. The Union Bank of India also sent a letter to the plaintiff on 29.9.1995 on the alleged discrepancies pointed out by the United Western Bank Ltd threatening reimbursement of the amount from the plaintiff if the bills were not paid by the bank. The copies of these two letters were filed as annexures E and F of the plaint. On 29.9.1995 the defendant sent reply clarifying the alleged discrepancies. Copy of which was filed as annexure G. It was also alleged that the goods had already been supplied and received by the foreign buyers. The defendant banks were threatening reimbursement of the amount in respect of the said LC. It was also alleged that the alleged discrepancies pointed out were groundless and the allegation of defect in the goods supplied was also false as same had been duly inspected before shipment. The plaintiff claimed the relief of decree of perpetual injunction restraining the defendant no. 1 Union Bank of India from in any manner interfering with and or reimbursing the amount in respect of the irrevocable letter of credit lying with it which are to the account of the plaintiff, to the United Western Bank Ltd defendant No. 2 or the issuing bank M/s. Boutique International the defendant no. 1 or the Burton Group, PLC, London or to any other party. The plaintiff also claimed a decree of mandatory injunction directing the Union Bank of India defendant no. 1 to credit in favour of and/or to the plaintiff the amounts lying with the defendant no. 1 in respect of the said LC alongwith upto date interest at the rate of 21% per annum. This matter was settled between the plaintiff and the two defendant banks by order dated 8.5.1996. The relevant part of the order is as under:--

Vide order dated 2nd May, 1996 counsel for defendant no. 2 who was directed to obtain instructions with regard to the proposal for equally sharing the burden of interest totalling Rs. 4,81,000/- between the plaintiff and defendant No. 2. Mr. Chawla today made a fervent prayer for some deduction in the liability for defendant no. 2 and the burden being shared by defendant no. 1 also since the defendant no. 1 had the benefit of the amount lying with it. After hearing counsels, it is now agreed between the parties that out of the total sum of Rs. 4,81,000/- a sum of Rs. 2 lacs each would be shared between the plaintiff and defendant no. 2 while a sum of Rs. 81,000/- will be borne by the defendant no. 1. It is further agreed that the plaintiff would seek its remedy against the Burton Group defendant no. 3 in U.K. Courts and the plaintiff has no objection to the defendant no. 1 bank remitting the entire proceeds to defendant no. 2 bank. The liability of interest being shared as aforesaid between the parties. Neither the plaintiff nor defendant no. 2 bank would raise any claim against defendant no. 1 or against each other in respect of the amount of interest that could have accrued on the amount the payment of which had been injuncted by the court.

The defendant no. 1 in these circumstances, may remit the proceeds to defendant no. 2. The injunction granted stands vacated. The plaintiff would make a deposit of Rs. 2 lacs by tomorrow with defendant no. 1 to enable the defendant no. 1 to remit to defendant no. 2 the total amount of Rs. 60,98,199/- plus Rs. 2,00,000/- plus Rs. 81,000/- i.e. A total of Rs. 63,79,199/-.

The suit stands disposed of with the above settlement and directions.

In this order as noticed above defendant no. 1 was Union Bank of India, defendant no. 2 United Western Bank Ltd, defendant no. 3 M/s. Burton Group PLC. The defendant no. 1 of this suit was defendant no. 4 in that suit. As such the plaint and the order would show that the cause of action for filing the said suit arose because United Western Bank Ltd which was the negotiating bank for bank of Hongkong and Shanghai Banking Corporation Ltd which was issuing bank for LC was calling upon the Union Bank of India the plaintiffs banker, for reimbursement of the amount of the LC for some alleged discrepancies in the documents submitted by the plaintiff. It has not been denied that the issuing bank was to comply with the LC strictly in accordance with its terms and conditions and if the terms and conditions of the LC were not satisfied by the plaintiff the Union Bank of India had no option but to remit the money back which had been received under reserve. The suit No. 2310/95 filed by the plaintiff was a suit for permanent prohibitory and mandatory injunction. It was not suit filed by the plaintiff for recovery of the price of the goods manufactured and supplied in terms of the order received from the defendant. For this reason it cannot be argued that the cause of action for filing the present suit and the cause of action for filing the previous suit were one and the same or that the plaintiff had omitted the relief for recovery of the money or the defendants in that suit shall be barred from filing the present suit for recovery of money against the defendant no. 1. For these reasons the pleas of the plaintiff that the suit is barred by Section 12 CPC Order 2 Rule 2 CPC or Order 23 Rule 1 CPC are not tenable.

Thee result of the above discussion is that the application has no merit. It is dismissed.

S 1400/98

List the matter before the Joint Registrar on 3.3.2003 for further proceedings.