B.P. Marda vs Hira Lall Son (Exports) (P) Ltd.

Manmohan Sarin, J.

(1) By this order, I would be disposing of the application (IA 4430/93) moved by the defendant u/s 10 read with Section 24 of the CPC seeking stay of further proceedings in Suit No.146/81 titled Sh.B.P.Marda And Another Vs. M/s.Hira Lal & Sons pending before the Additional District Judge or in the alternative for its transfer to this Court, for being tried together with the present Suit 512/93, filed by the plaintiff against the defendant, herein M/s.Hira Lal & Sons Exports Private Limited.

(2) It would be pertinent to notice the facts giving rise to the present application :-

(I)The plaintiff instituted Suit No.146/81 against M/s.Hira Lal & Sons, for recovery of sum of Rs.70,000.00 claimed to have been given as a hand loan to the said firm M/s.Hira Lal & Sons. The suit is titled Sh.B.P. Marda & Another Vs. M/s.Hira Lal & Sons. The pleadings have been completed, evidence has been recorded and the plaintiff claims to have even argued the matter. The plaintiffs contention is that defendant M/s.Hira Lal & Sons, have been avoiding final arguments. The contention of the defendant in the suit is that the amount of Rs.70,000.00 paid by cheque to the defendant firm was not a hand loan. The cheque was issued by mistake in the name of the defendant firm, but it was meant to be a security/earnest money for an agreement dated 24-9-1979 entered into between the plaintiff and M/s.Hira Lall & Son (Exports) Pvt. Ltd., a company in which the partners of the defendant are directors. It is claimed that the defendant'' firm had transferred the said amount to the account of the company M/s.Hira Lall & Son (Exports) Pvt. Ltd., who is the defendant in the present suit, pending in this Court.

(3) The present suit bearing No.512/83 titled Sh.B.P.Marda & Another Vs. M/s.Hira Lal & Sons Exports Pvt. Ltd. has been filed by the plaintiff in this Court for recovery of Rs.1,35,000.00 claiming the said amount as damages on account of breach of the agreement dated 24-9- 1979, for import of Soda Ash.'' The defendant''s case is that the plaintiff himself had committed the breach of the agreement and the defendant had forfeited the security/earnest money of Rs.70,000.00 given by the plaintiff. The plaintiff contends that no earnest money or security was given to the defendant. The agreement to sell did not provide for payment of security. The plaintiff had given to the partnership firm M/s.Hira Lal & Sons, a hand loan of Rs.70,000.00 for the recovery of which it had instituted Suit No.146/81 pending in the trial court. Issues in the two suits as framed may be noted:- Issues framed in Suit No.146 of 1981 are as follows:-

"a. Whether the plaintiff gave a sum of Rs.70,000.00 vide cheque No.954243 dated 15.10.1979 as hand loan? Opp b. Whether in terms of Agreement dated 24.9.1979 it was agreed between the plaintiff and M/s.Hira Lal & Sons (Exports) Pvt. Ltd. that the plaintiff will provide a sum of Rs.70,000.00 as security deposited with M/s.Hira Lal & Sons (Exports) Pvt. Ltd.? c. Whether in pursuance to the above said Agreement, the plaintiff sent a cheque for Rs.70,000.00 through its representative wrongly in the name of the defendant and Shri Hari Shanker Gupta encased the same on 15.10.1979 in the account of the defendant, transferred the amount into the account of M/s.Hira Lal & Sons (Exports) Pvt. Ltd. on the asking of the representative of the plaintiff? Opd d. To what rate of interest the plaintiff is entitled? Opp e. Whether the suit has been filed by the proper person? Opp f. Relief."

Issues framed in Suit No.51" of 1983 on 21st April, 1984 are as under:- "a. Whether the suit is barred by limitation? b. Whether the Bulgarian party Chim Import Sofia Bulgaria is a necessary party? c. Whether defendant No.2 is a necessary or proper party? d. Whether the suit is liable to be stayed in view of Suit No.l46 of 1981 pending in the Court of Mr.P.K.Sain, Additional Distt. Judge Delhi between the same parties? e. Whether defendant No.1 did not perform its part of the contract and whether the plaintiff was justified in cancelling the same? f. If above issue is held in favor of the plaintiff to what amount of damages not exceeding the pre-estimated damages of Rs.l,35,000.00 is the plaintiff entitled? g. Whether the plaintiff has performed his part of the contract in time, if not to what effect? h. Relief."

(4) I have heard Mr.Anil Kher, Advocate in support of the application. Learned counsel has argued that one of the issues framed i.e. issue appearing at para (d) above was "whether the suit was liable to be stayed in view of Suit No. 146/81 pending in the Court of Mr.R.K.Sen Additional District Judge between the same parties". Mr.Kher has argued that decision on the question whether the amount of Rs.70,000.00 was paid by the plaintiff as a hand loan or not in Suit No.146/81 would have a bearing on and effect the decision in the second suit, wherein the defendant is claiming that the said amount being security was forfeited as a result of the plaintiffs breaches. It is contended that one of the important issues before this Court is directly and substantially an issue in the previous suit. He, Therefore, contends that Suit No.146/81 should either be stayed or be transferred to this Court for being tried together with the present case.

(5) MR.KHER relied on the decisions, namely, C.L. Tandon Vs. Prem Pal Singh etc., ; Sagar Shamsher Jang Bahadur Rana and Another Vs. The Union of India and Others, . On the question of transfer of suit to this Court Mr.Kher relied on Indian Overseas Bank, Madras Vs. Chemical Construction Company and Others, and Engineering Investments P. Ltd. Vs. Bharath Heavy Electricals Ltd., Madras and Another, .

(6) MR.ASHOK Marwah learned counsel for the plaintiff in reply argued that the present application was an abuse of the legal process moved with the sole purpose of delaying and frustrating the pending decision in the suit pending in the trial court. Evidence has been concluded and the plaintiff had even argued the matter. The defendant has belatedly moved the present application after nine years of the initial institution. It was argued that the two suits were founded on different causes of action and there was no identity of parties. One was a suit against the partnership firm for a hand loan, while the second was a suit for damages on account of breach of contract. The prayer for transfer or consolidation of the suits was also without any justification.

(7) Let me notice the authorities cited by the learned counsel for the defendant. In C.L. Tandon J.S. Vs. Prem Pal Singh (Supra), the Court observed that for invoking Section 10 CPC the matter and issues in the two suits were not required to be totally identical but substantially the same. Besides one of the major issues being common alone will not suffice. The test being whether the matters and issues were directly and substantially the same and whether the decision in the prior suit will bring the principles of res judicata into operation in the subsequent suit. In the Sagar Shamsher Jung Bahadur Rana (supra) it was observed that the words/matter in issue in Section 10 Cpc, did not mean entire subject matter in issue being same in the two suits, it meant that all disputed material/questions in the subsequent suit, which are directly and substantially in question in the previous suit. Further that it did not contemplate complete identity of issues.

(8) There can be no dispute with the criteria laid for application of Section 10 Cpc in the above authorities. However, in the present case, one of the first things to be noticed is that the identity of the parties is not the same. The first is a suit against the partnership firm and the second is a suit against a company in which the partners of the firm are said to be the directors. The cause of action in the first suit is claimed to be the non-payment of a hand loan given to the partnership firm. The cause of action of the second suit is an alleged breach of the agreement with the company. Curiously enough the defendant is seeking the stay of the first suit and not the second suit which was subsequently filed. As noticed above, the mere identity of one of the issues is not sufficient to grant stay u/s 10 of the CPC. Moreover in the second suit the plaintiff does not claim that he paid the sum of Rs.70,000.00 to the defendant company. It is the defendant, who claims that the said sum was paid as security and has been forfeited. The plaintiffs claim is based on a breach and entitlement of damages in the second suit. The plea that there will be a conflict of decisions in the two suits is also misconceived. The plaintiff, if he fails to prove the hand loan given to the partnership firm it will not affect the decision in the second suit, since the plaintiffs claim is based on an alleged breach. The plaintiff does not claim that any security was given to the defendant and as such whether the defendant forfeited the security or not will not have a bearing on a decision in the second suit. As regards the prayer for transfer of the suit to this Court, having regard to the circumstances of this case, no ground for transfer of a suit is made out. The evidence has been completed and plaintiff has concluded the arguments. There is also merit in the plaintiffs contention that the application for transfer is a highly belated one and far from promoting and sub-serving the ends of justice, would only delay the disposal of the first suit. The judgments relied on by the counsel in this regard also do not advance his case. The application, Therefore, has no merit and is dismissed.