Kamala Sugar Mills Ltd. vs Starcosa G.M.B.H. and Co.

Mitter, J.—This is an appeal from an order of injunction, restraining the Appellant from proceeding with suit No. O.S. 191 of 1964 Kamala Sugar Mills Ltd. v. Starcosa G.M.B.H. and Co. and Ors. pending in the Court of the Subordinate Judge of Coimbatore until the final disposal of suit No. 855 of 1963 filed by Starcosa G.M.B.H. and Co. against Kamala Sugar Mills Limited.

The claim of the Plaintiff in the Calcutta suit (hereinafter referred to as Starcosa) against Kamala Sugar Mills Limited (hereinafter referred to as the Sugar Mills) is for the balance of wages and travelling and incidental expenses due in respect of the work done in the erection of a starch and glucose plant supplied by Starcosa to the Sugar Mills and for putting the same in operation during the year 1960. According to the plaint the work of erection was completed by one H. Kirchmann of Starcosa between June 30, 1959 and March 28, 1960. The charges for such work were paid upto February 28, 1960 and the Plaintiff''s claim for the work done by Kirchmann from February 29 to March 28, 1960, amounted to Rs. 4,688.71. The Plaintiff also claims Rs. 46,883.67 in respect of the work done in the erection and operation of the plant by one H. Staacke between January 19, 1960 and November 22, 1960. The claim is limited to the period between February 29, 1960 and November 22, 1960. Besides the above Starcosa''s claim also includes a sum of Rs. 561.15 for certain instruments and chemicals supplied to the Sugar Mills. The suit was filed on May 10, 1963, with leave under Clause 12 of the Letters Patent on the allegation that the agreement for erecting the starch and glucose plant supplied and for putting the same into operation under the supervision of an erector and an engineer of Starcosa was entered into by correspondence passing between the Plaintiff through its technical advisers and the Defendant dated May 11 and 20, 1959, the acceptance being received in Calcutta within the jurisdiction of this Court. After entering appearance in this suit the Defendant Sugar Mills took out a summons in August 1963 for the revocation of leave granted under Clause 12 of the Letters Patent. This application was however dismissed in February 1964 and no appeal was preferred therefrom. On March 10, 1964, Starcosa made an application by way of notice of motion for judgment on admission said to have been made in some of the letters written by the Sugar Mills to Starcosa. On March 25, 1964, the Sugar Mills filed their written statement in this suit. On May 27, 1964, Starcosa''s application for judgment on admission was dismissed by this Court. An appeal preferred therefrom met the same fate later on. On June 5, 1964, the Sugar Mills instituted the suit against Starcosa and Wunderlich and Staacke in the Court of the Subordinate Judge of Coimbatore claiming Rs. 39,995.34. On being served with the summons in the said suit Starcosa applied for an injunction restraining the Sugar Mills from proceeding with that suit. The interim order of injunction granted on Starcosa''s application was made absolute by a judgment in March 1965. Hence this appeal.

The claim in the Calcutta suit is quite a simple one. It is based on two letters and is for the recovery of wages of and travelling expenses incurred by two engineers and erectors. The written statement of the Sugar Mills is prolix and cumbersome. In order to thwart the claim of the Plaintiff the Defendant resorted to a long rigmarole pleading various representations on the part of the plain tiff from time to time which are all described as false or incorrect as a result whereof the Sugar Mills did not get the plants they thought they would get and have suffered extensive damage which is quantified at a figure approximating Rs. 17 lakhs. In brief the defence put up is as follows:

(a) Early in the year 1955 two representatives of the Defendant went over to Germany and sought the advice of the Plaintiff regarding machinery and equipment suitable for the manufacture of starch, glucose and dextrose. The Plaintiff represented to the said two persons that solid glucose and dextrose were identical and offered to send to the Defendant quotations for the machinery and equipment for the conversion of 20 tons of roots to starch per day and a plant for the manufacture of solid glucose therefrom.

(b) Actually two quotations were sent by the Plaintiff with letter dated January 31, 1955. As it was not clear from the quotations as to whether the plants mentioned could be used for the manufacture of dextrose the Plaintiff in response to enquiries by the Defendant, asserted in writing and assured the Defendant that it was possible to proceed very far with the plant offered to manufacture a produce whose dextrose content would be about 80% and that this would require very little additional machinery including wooden vats.

(c) Relying upon the said advice the Defendant placed with the Plaintiff orders for the supply of a starch plant and a glucose plant.

(d) The Plaintiff agreed to send an erector and an engineer for erection of the said plants so that the same could be set up as a plant fit for the making of dextrose as mentioned. The terms of payment to the Plaintiff for the aforesaid work were contained in several letters including the two mentioned in the plaint.

(e) The Plaintiff sent out the erector Mr. Kirchmann and the engineer Mr. Staacke in July 1959 and January 1960 respectively.

(f) When the plants were put in commission it was found that they were incapable of producing dextrose required by the Defendant.

(g) Between August and December 1959, it was realised by the parties that there had been a serious mistake and that the representations made by the Plaintiff to the effect that a few wooden vats and other inexpensive machinery would be enough to convert the plant into one for making glucose into dextrose were false.

(h) It was also realised that to convert the existing plants into one for making dextrose would entail huge expenditure in the shape of various expensive additional machinery and equipments.

(i) The Plaintiff tentatively agreed to supply and/or arrange to supply additional machinery which would make the plant fit for the aforesaid purpose and to have the same manufactured and erected under the Plaintiff''s engineer.

(j) Ultimately in May 1960, it was agreed by and between the Plaintiff represented by N. Wunderlich and the Defendant that certain further necessary machinery and equipment would be purchased and/or fabricated in India under the supervision and direction of Mr. Staacke, that certain machinery and equipment would have to be imported from the Plaintiff''s works in Germany and that the whole work of conversion would be completed by May 1961. The Plaintiff also undertook to train up necessary personnel for running of the said plants, there being an implied agreement that payment would only be made after the erection was completed in entirety and the machinery and equipment set up would produce dextrose of 99 % purity and so long as this was not achieved the Plaintiff''s engineer or erector would remain in India to bring about the desired effect.

(k) Pursuant to the said agreement various machinery and equipment were purchased by the Defendant and orders were placed with Indian manufacturers for the fabrication of other machinery and equipments. In order to house the additional machinery extensive alteration in the structures wherein the existing plants were located had to be carried out involving considerable expenditure. The total expenses under this head exceeded Rs. 1,10,000.

(l) While the additional machinery and equipments were in course of fabrication and/or acquisition the Plaintiff withdrew the said engineer Mr. Staacke without any notice and in breach of the agreement and failed to train up any personnel to operate the plants.

(m) As a result of the breach of contract on the part of the Plaintiff the money spent by the Defendant on the additional machinery and equipments conferred no benefit upon it and the Defendant was unable to make any dextrose at all.

(n) Had the contract been performed the Defendant would have manufactured 3000 lbs. of dextrose per day on and from May 1961 and would have made a profit of 50 nP per 1b. aggregating Rs. 1500 per day. By reason of the breach of contract the Defendant was suffering damages which had accumulated to a figure exceeding Rs. 15,00,000 at the time when the written statement was filed.

(o) The Defendant had been advised to file a separate suit against the Plaintiff for damages suffered.

(p) In the result, no sum of money was due to the Plaintiff and it was the Defendant who had become entitled to a very large sum of money from the Plaintiff.

The plaint in the Coimbatore suit proceeds on the line indicated in the written statement of the Calcutta suit. The Defendants in the Coimbatore suit were not only Starcosa but Mr. Wunderlich and Mr. Staacke although no relief is claimed against the last named person. Curiously, however, the Sugar Mills limited its claim to Rs. 37,730 out of Rs. 1,10,000 for additional machinery and equipments already mentioned and claimed only Rs. 2,255 as loss of profits.

On August 19, 1964 Starcosa affirmed a petition and took out a notice of motion praying for an injunction restraining the Sugar Mills from proceeding with the suit in the Coimbatore Court pending the final disposal of the Calcutta suit alternatively, for stay of the said suit. In this petition reference is made to the negotiations before the purchase of starch and glucose plants and the visit of the two representatives of the Sugar Mills to Germany in connection therewith. According to the Petitioner, the representatives of the Sugar Mills had full intimation that with the old method plant which did not utilise a continuous process the dextrose content of the final product would be only between 28 and 36 per cent. In August and September 1955 the Sugar Mills were further informed that with the plants offered it was possible to manufacture liquid glucose and dry glucose with a dextrose content of an average of 26 to 32% by using the spray drier but with the addition of wooden vats in which the glucose would be discharged from the final evaporator it would be possible to manufacture dry glucose (dextrose) with the dextrose content of about 80%. With full knowledge of all this the Sugar Mills by letter dated September 12 and October 2, 1956, ordered the glucose plant according to Starcosa''s quotation dated January 31, 1955 and made the said purchase relying on their own judgment. It was thereafter in May 1959 that there was an agreement between Starcosa and the Sugar Mills with respect to sending out an engineer and an erector. The terms of the agreement are given in full detail in the plaint in the Calcutta suit. Towards the end of the year 1959 the Sugar Mills enquired whether it was possible to equip the glucose plant with additional machinery in such a way so that medically pure dextrose with content of about 98% to 99% dextrose mono-hydrate could be manufactured. The Plaintiff prepared a quotation for additional machinery and sent the same along with the letter dated February 29, 1960. There was no reply to this letter, but Starcosa was informed by a representative of the Sugar Mills that the quotation could not be considered on account of shortage of foreign exchange and that the Sugar Mills intended to manufacture necessary equipment in India. The said representative of the Sugar Mills requested the Plaintiff through the said Staacke for drawing the particulars for manufacturing the machinery in India. Starcosa by letter dated June 22, 1960, made a proposal to the Sugar Mills to supply the said particulars at a fee of Rs. 90,470 and asked the latter to contact the New India Development Corporation Sugar Machinery Manufacturing Company, Pimpri, for the manufacture of components. As the work of Mr. Staacke was nearing completion the Plaintiff time and again informed the Defendant that Staacke could not stay in India very long and it was at the request of the Respondent that Mr. Staacke''s stay was extended till the first week of November 1960. Actually Staacke left India by the end of November 1960 with the Respondent''s consent. The Plaintiff never agreed to lend the service of Mr. Staacke to the Sugar Mills for any period beyond what was required for the contracted job. In numerous letters written to the Sugar Mills after the said Mr. Staacke had left India request was made for the payment of his wages and travelling expenses as also those due for the work done by Mr. Kirchmann. In spite of repeated assurances in writing by the Sugar Mills that the dues of the Plaintiff would soon be met no steps were taken for honouring the obligation on their part with the result that Starcosa was obliged to file the suit in this Court. The Defendant at first attempted to baulk the Plaintiff by an application for revocation of leave under Clause 12. Having failed in that attempt they filed the suit in the Coimbatore Court with the avowed object of harassing the Plaintiff. Contesting the suit at Coimbatore would cause great hardship to Starcosa who have to produce oral and documentary evidence which are available in West Germany. The Plaintiff''s witnesses were at West Germany and other places abroad. The balance of convenience was in favour of the Sugar Mills being restrained from proceeding with the Coimbatore suit until the disposal of the Calcutta suit. The Coimbatore suit had been filed mala fide and vexatiously as a counterblast to the Calcutta suit.

The affidavit-in-opposition to the above petition is to the effect that nothing material for the purpose either of the Calcutta suit or of the Coimbatore suit had happened in Calcutta, that the erection and construction of the plant took place within the jurisdiction of the Coimbatore Court, that a large number of witnesses and enormous quantity of documentary evidence which were all available at Coimbatore would have to be produced for the adjudication of the disputes between the parties and the Coimbatore Court was the only proper forum where the same could be tried. In any event, the Sugar Mills being the Plaintiff had the dominus litis and had properly filed the suit in the Court at Coimbatore bona fide and with out any object of harassing the Plaintiff in the Calcutta suit.

The correspondence between the parties which is rather voluminous hardly lends any support to the case made by the Sugar Mills. Without referring to the same in extenso a note may be made of the more important letters.

By a letter dated January 31, 1955, Starcosa sent two quotations one numbering P. 2253 for the glucose plant and the other No. P. 2256 for the starch plant. The first was for the manufacture of dry glucose (glucose powder from starch mill), the second P. 2256 was for the starch plant in which various raw materials including potatoes could be used. By letter dated May 28, 1955, Starcosa enclosed an alternative quotation No. P. 2491 for the glucose plant having the same capacity as before but having a normal conversion operating periodically. It was mentioned in this letter that the manufacture of dried glucose (dryose or glucose-powder) by means of using the spraying-drier was only possible at a dextrose-content of 28-36% and that it was not possible to have a higher dextrose-content. By letter dated July 4, 1955, the Defendant referred to the discussions already had and asked for the quotation for the conversion of glucose by the old method which was not a continuous process. Thereafter the Defendant sent samples for examination and the Plaintiff made comments thereon. In September 1956 the Plaintiff again sent second quotation form P. 2491. By letter dated September 12, 1956, addressed to Wunderlich at 47, Park Street, Calcutta, the Defendant confirmed its order for the glucose plant per order P. 2253. This was confirmed by the Plaintiff by letter dated November 20, 1956. In May 11, 1959 and May 20, 1959, the terms and conditions of the engineer and erector working in India to set up the plant and put the same in operation were finally agreed. In June 1959 the erector Mr. Kirchmann started the work of erection of the plant. By letter dated December 12, 1959, addressed to Starcosa in Germany the Defendant wanted to know whether the plant purchased by it could outturn a product of which the dextrose-content would be about 98 per cent monohydrate which was the market requirement in India. The Defendant also wanted advice about the additional machinery and equipment required. By letter dated January 12, 1960, Starcosa confirmed that with the plant supplied 99 per cent dextrose monohydrate could not be produced and that additional apparatus for the manufacture of 99 per cent dextrose could be set up under their supervision. By a further letter dated February 29, 1960, Starcosa sent quotation No. P. 5342 covering a plant for the production of medically pure glucose. They also informed the Sugar Mills that they had received letters to the effect that the Sugar Mills had expressed the desire to have the whole additional equipment built in India. Starcosa wanted to know exactly the details of the machinery which could be constructed here. Kirchmann, as already noted, left India on March 29, 1960. By letter dated June 22, 1960, Starcosa referred to the discussion regarding the construction of the dextrose-plant planned by the Defendant and made several suggestions with regard thereto and added that their charges for the planning and advice of the plant, supply of the drawings etc. in one lump sum would be 75000 Deutsche Mark. From October 1960 Starcosa addressed letters to the Sugar Mills requesting for payment of charges on account of the engineer and erector. By letter dated November 3, 1960, the Sugar Mills put on record that the sale of liquid glucose was being vigorously pursued and that it was necessary that Mr. Staacke should stay on at the factory till the first week of December 1960. Actually Mr. Staacke left India in November 1960. By letter dated February 6, 1961, the Defendant wanted to find out if the Plaintiff could arrange for an expert for the manufacutre of dextrose. While promising to help the Defendant the Plaintiff replied by letter dated February 16, 1961, that there were very few experts even in Germany and it was very difficult to secure the service of one. By registered letter dated July 14, 1961, the Plaintiff referred to earlier letters demanding payment for the charges of Staacke and Kirchmann and wanted to have the matter finalised immediately. On July 21, 1961, the Defendant wrote back to say that they were making every effort to make payment or the erection Dills before the end of the month even though the goods produced did not conform to the I.S.I. specification.

If one is to judge the case by the correspondence alone the defence put up in the Calcutta suit appears to be rather thin. The same remark may be made of the claim made in the Coimbatore Suit.

The learned trial Judge was of the view that the case of the Defendant sugar Mills did not appear to him to be a convincing one. His further conclusion was that me suit at Coimbatore had not been instituted for obtaining any legitimate advantage. He held that although there was no scope for applying Section 10 of the CPC the case was one where the exercise of inherent power to issue a temporary injunction was called for.

Before going into the merits of the case it is necessary to consider whether the order challenged is appealable. To be so, it must be a ''judgment'' within the meaning of the word in Clause 15 of the Letters Patent. There is a large body of decisions in which on the facts of the case it has been held that an order made under the inherent powers of the Court envisaged by Section 151 of the CPC is not appealable but it is not possible to lay down any general proposition that orders made in exercise of such inherent powers are never appealable. In every case, one must scrutinise the effect of the impugned order and if it satisfies the test of a ''judgment'' as laid down in the celebrated cases of the Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 B.L.R. 452 or T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar I.L.R.(1910) Mad. 1 it may be held to be appealable. According to the test formulated by Couch, C.J. in the Oriental Gas Company''s case (1872) 8 B.L.R. 452 to attract appealability the order must be a decision determining some right or liability affecting the merits of the controversy between the parties and must be the final pronouncement of the Court making it. To give effect to the decision of White, C.J., in Tuljaram Row''s case (1910) one must look to the effect of ILR 35 Mad. 1 the order upon the particular suit or proceeding in which it is made and if the effect be to determine the suit or proceeding the decision would be a judgment but not otherwise. In my opinion, an order of injunction restraining a party to a suit in Court ''A'' from proceeding with a suit, in Court ''B'' until the disposal of the suit in Court ''A'' does not satisfy either of the tests and as such, is not appealable. The effect of the order is merely to postpone the hearing of the suit for sometime without determining the fights of the parties in the suit itself. A somewhat similar question came up for consideration by the Bombay High Court in Desai Venechand Rajpal v. Lakhmichand Manekchand ILR (1919) Bom. 272. There the Defendant had filed a suit in the Morvi Court in January 1919 for an account in respect of a partnership business. Some months later the Defendant in the Morvi suit filed a suit in the High Court at Bombay praying for a declaration that the partnership between the parties had stood dissolved in January 1917, that since then the Plaintiffs were the sole owners of the assets of the business and that the Defendant had no interest therein. Soon after filing the suit the Plaintiffs in the Bombay suit moved the Court for an injunction restraining the Defendant from prosecuting the suit filed in the Morvi Court. On the merits Pratt, J. held that the Plaintiff in the Bombay suit had adopted a device to compel the Defendant to give up his suit in Morvi and therefore refused the motion. On appeal being preferred from the said order both Macleod, C.J. and Heaton, J. held that no appeal lay. It was contended before the Appeal Bench that

the effect of refusing to grant the injunction would be to oust the jurisdiction of the Bombay High Court.

Macleod, C.J. observed that

if the jurisdiction of this Court in this suit is in any way ousted, it is owing to the fact the Plaintiff in the Morvi Suit preferred to file his plaint there and might get a decree in that Court which would bar u/s 13 of the Code of Civil Procedure, the Plaintiffs'' suit in this Court.

Both the learned Chief Justice and Heaton, J. were of opinion that the effect of refusing an injunction was not to deprive the High Court of Bombay of its own jurisdiction.

As against the above the learned Counsel for the Appellant drew our attention to another judgment of the Bombay High Court in Mansata Film Distributors, Calcutta v. Sorab Merwanji Modi AIR 1955 Bom. 272. In that case there was an agreement between the parties by which, the Appellants were to distribute three films to be produced by the Plaintiff Respondent with various terms as to the payments which the Appellants were to make. In July 1954 the Plaintiff filed a suit in the Bombay High Court claiming Rs. 60,000 as due in terms of the agreement. Within a month thereafter the Appellant filed a suit in the Calcutta High Court contending that the contract sued on in the Bombay High Court was entered into on a representation which was not carried out and the films produced were not those mentioned in the advertisement issued prior to the agreement. The claim in the Calcutta suit was for various amounts paid by them under the agreement which was sought to be avoided. Thereafter the Plaintiff in the Bombay suit took out a notice of motion to restrain the Appellant from proceeding with the Calcutta suit and the learned trial Judge made an order granting the relief prayed for mainly on the consideration that there was a clause in the agreement between the parties that if either party decided to take steps for enforcing their rights it would be obligatory on him not to do so in any Court other than at Bombay. According to the learned Judge the Bombay High Court in its equitable jurisdiction or acting u/s 151 of the CPC would restrain the other party from breaking the agreement and would prevent him from prosecuting his suit in a Court other than the one agreed upon. On the question as to appealability of the order of the learned trial Judge Chagla, C.J. observed that

if an interlocutory order determines the right of a party even ''pro tanto'', then the party whose right has been affected would have the right to appeal against that order.... The Appellants have been prevented from prosecuting their suit in the forum of their choice. To that extent a very important right has been affected and it is difficult to understand how an order restraining a party from proceeding with this suit till the suit filed by the other party is disposed of does not affect his right.

I find it a little difficult to reconcile the last portion of the order with the opening sentence of the judgment of the learned Chief Justice where he says that by the order of the learned Judge the Appellants were restrained from proceeding with the suit filed by them in the Calcutta High Court. If the effect of the said order is to put a quietus to the Calcutta suit altogether then certainly there would be a serious infringment of the right of the Plaintiff in the Calcutta suit which would in effect come to an end, but if the order of restraint was only to postpone the hearing of the Calcutta suit until the disposal of the Bombay suit the interference with the right of the Plaintiff in the Calcutta suit would be only temporary.

In my view, after the decision of the Supreme Court in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, it would be difficult to hold that mere deprivation of a litigant''s right to proceed with his suit in a Court of his choice (if his suit is allowed to be proceeded with elsewhere after some time) would be a judgment appealable under Clause 15 of the Letters Patent. In that case the Respondent Rupendra Deb Raikot had filed a suit in the Court of the Subordinate Judge at Jalpaiguri for recovery of possession of a large estate situate in that district on the allegation that he being the eldest son of the last holder of the estate had become entitled to the properties on the death of his father under a family custom which excluded all females from inheritance and followed the rule of lineal primogeniture in matter of succession. The Appellant who was the widow of the last holder contended that the Plaintiff was not a legitimate son of her husband and she also disputed the family custom excluding females from inheritance. After the institution of the suit at Jalpaiguri the Plaintiff presented an application in the Original Side of the Calcutta High Court under Clause 13 of the Letters Patent praying for transfer of the suit to the High Court. This was allowed by a learned single Judge of this Court substantially on the ground that having regard to the atmosphere of prejudice created in the locality by the supporters of the Defendant, who wielded a considerable influence in the district, the Plaintiff might have a legitimate apprehension that he would not get fair trial in the District Court. The Appellate Bench of the Calcutta High Court dismissed the appeal preferred by the Defendant on the ground that the order was not a judgment. Referring to the well-known cases of Oriental Gas Company Supra and Tuljaram Row Supra and without laying down a test as to what constituted a ''judgment'' within the meaning of Clause 15 of the Letters Patent the Supreme Court observed:

the order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a parliamentary ground as has been referred to by Couch, C.J.... An order of transfer under Clause 13 of the Letters Patent, is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter, to be taken only from the stage at which they were left in the Court in which the suit was originally filed.

If therefore, an order is made by the Calcutta High Court restraining the Defendant in a suit in that Court from proceeding with a suit filed in the Coimbatore Court until the disposal of the Calcutta suit the Coimbatore suit is not put an end to and there is no final determination of the right of the party in the Coimbatore suit. In my view the order appealed from is not a judgment within the meaning of Clause 15 of the Letters Patent.

On the merits I find myself unable to agree with the conclusion of the learned trial Judge that the case is one which called for interference under the inherent powers of the Court. It is well-settled that such powers can be exercised to prevent an abuse of the process of the Court and also to stop vexatious litigation. As far back as 1855 it was observed by Lord Chancellor Cranworth in The Carron Iron Company Proprietors v. James Maclaren (1855) 5 H.L.C. 416, that

there is no doubt as to the power of the Court of Chancery to restrain persons within its jurisdiction from instituting or prosecuting suits in foreign Courts, wherever the circumstances of the case make such an interposition necessary or expedient. The Court acts in personam and will not suffer anyone within its reach to do what is contrary to its notions of equity, merely because the act to be done may be, in point of locality, beyond its jurisdiction. Where, therefore, pending a litigation here, in which complete relief may be had, a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party and restrains the foreign proceedings.

Referring to certain earlier decisions the learned Lord Chancellor said,

there are instances in which the Court has interfered, on principles of convenience, to prevent litigation, which it has considered either unnecessary and therefore vexatious, or else to be ill adapted to secure complete justice.

In McHenry v. Lewis (1822) 22 CH.D. 397, the question was whether or not when an action was brought by a man in England against another and the same Plaintiff brought an action in a foreign country against the same Defendant for the same cause of action an English Court would have jurisdiction in a proper case to stay the English action on the ground that the Defendant was doubly vexed by reason of the action being brought also in the foreign country. In delivering the main judgment of the Court of appeal Jessel M.R. observed that there was such a jurisdiction in the English Courts and it was part of the general, jurisdiction of the Court to prevent a Defendant being improperly vexed by legal procedure even if one of the actions was brought in a foreign country. According to his Lordship

where the actions are by the same man in Courts governed by the same procedure and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do.

In McHenry''s case the facts are as follows: McHenry on behalf of himself and other holders of certificates of bonds and shares under a scheme for the reorganisation of an American company sought to make the trustees of the scheme, liable for certain breaches of trust by an action commenced in July 1881. In the year 1879 another action had been brought in England by a Mr. Conybeare against the same trustees, the object of which was to a certain extent identical with McHenry''s action; but McHenry''s action was wider and more comprehensive. In August 1881 yet another action was brought in America by another Mr. Conybeare and McHenry, as co-Plaintiffs, on behalf of themselves and the other holders of certificates, for purposes which were substantially the same as those sought in McHenry''s English action although there were additional Defendants in the American action. The Defendants sought by way of motion to restrain the proceedings in the action of McHenry v. Lewis (1882) 22 Ch.D. 397 started in 1881 during the pendency of the other two actions. Chitty, J. dismissed the application and the Court of appeal agreed with his conclusion. Cotton L.J. observed:

stopping in the middle of a suit a Plaintiff from going on when he has a right of action as against the Defendant, is a jurisdiction which has to be exercised with very considerable caution. I find here very great distinctions as to the two suits. In America there are the company and directors, who are subject only to the jurisdiction of the Courts there. Here we have Defendants who are resident in England and who cannot be made subject to the jurisdiction of the American Courts,....so as to enable any decree made by those Courts to be enforced against them....Under these circumstances, it is not suggested that of these two suits the second is instituted vexatiously, but it is suggested that it is vexatious to go on with both. Now if I could find a way in which I could properly interfere so as to decide that there should not be litigation in both the tribunals with reference to the same subject matter, I should be inclined to exercise the jurisdiction. But I cannot say here that we ought to come to the conclusion, which is the principle on which the jurisdiction is to be exercised, that proceeding with these two suits in the two different tribunals is vexatious.

According to Bowen L.J.

it would be most unwise, unless one was actually driven to do so for the purpose of deciding this case, to lay down any definition of what is vexatious or oppressive or to draw a circle, so to speak, round this Court unnecessarily and to say that it will not move outside it, I would much rather rest on the general principle that the Court can and will interfere whenever there is vexatious and oppression to prevent the administration of justice being perverted for an unjust end.

In Desai Venechand Rajpal v. Lakhmichand Manekchand Supra, Pratt, J. referred to some of these cases and said.

there is no equity to restrain the prosecution of a suit on the ground that it is false and inspired by evil designed persons. The truth or falsehood of a suit is matter to be decided in the suit. It is harassing to defend any suit, whether true or false, but what is vexatious is the pursuit of the same remedy before two different tribunals. As already noted his judgment was upheld in appeal on the merit.

In Snow White Food Products Co. Ltd. v. The Punjab Vanaspati Supply Company (1943) 49 C.W.N. 172, Das, J. (as he then was) examined the question as to the jurisdiction of the Court to grant a temporary injunction restraining a litigant from proceeding with his suit when there were two parallel suits. The learned Judge came to the conclusion that the Court had such inherent power which could be exercised on the ground of balance of convenience if the Court was satisfied that the other suit was vexatious and was an oppressive multiplication of action, on the facts of the case before him the learned Judge found himself unable to hold that the inconvenience of the Plaintiff in the Calcutta suit made the Amritsar suit vexatious or oppressive.

This question came up for consideration by the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . There the parties had entered into a partnership at Indore for working coal mines in the district of Burdwan and manufacture of cement etc. The partnership was dissolved by a deed dated August 22, 1945, under the terms of which the Appellant was liable to render full and correct account of the moneys advanced by the Respondent and to render account of this business with a right to get Rs. 1,00,000 contributed by the Respondent towards the capital of the partnership. The right to receive this money was however to be subject to his rendering the account and getting the same checked and audited. The deed further provided that all disputes and differences whether regarding money or as to the relationship or as to their rights and liabilities in respect of the partnership dissolved or in respect of questions arising under the document would be decided amicably or in the Court at Indore and nowhere else. The Respondent called upon the Appellant to satisfy him at Indore as to the accounts of the Colliery complaining that the accounts submitted by the Appellant were full of false and fictitious entries. In August 1948 the Appellant instituted a suit in the Court of the Subordinate Judge at Asansol against the Respondent for the recovery of Rs. 1,00,000 on account of his share in the capital of the business and for other reliefs. The Respondent filed a petition u/s 34 of the Arbitration Act in Asansol Court praying for stay of the suit in view of the arbitration agreement. This was rejected. The Respondent then filed a suit in the Court of the District Judge, Indore, praying for a decree for Rs. 1,90,000 against the Appellant. In his written statement filed in the Asansol Court the Respondent challenged the jurisdiction of the Court to go into the disputes between the parties in regard to the deed of dissolution and further charged that the suit was vexatious and oppressive. In 1951 the Respondent applied in the Court at Asansol for the stay of the suit in exercise of its inherent powers. This was rejected. The Calcutta High Court confirmed that order with a direction that the preliminary issues framed by the Subordinate Judge at Asansol should be tried at once. The Appellant applied to the Indore Court for staying the suit there under Sections 10 and 151 of the Code of Civil Procedure. This was rejected and the rejection was confirmed by Madhya Bharat High Court. The result was that both suits were to go on. In these circumstances the Respondent applied u/s 151 of the CPC before the Indore Court for restraining the Appellant from continuing the proceeding at Asansol. The Additional District Judge of Indore issued an interim injunction under Order XXXIX of the CPC restraining the Appellant from proceeding with the Asansol suit pending decision of the Indore suit. In appeal to the High Court by the Appellant it was held that the order of injunction could be issued in the exercise of inherent power of the Court. The Supreme Court pointed out that the inherent powers of the Court were in no way controlled by the provisions of the Code but they were to be exercised by the Court in very exceptional circumstances and the use of this power to restrain a party from proceeding with his suit in a regularly constituted Court of justice. It was further observed that the question of jurisdiction of the Asansol Court over the subject matter of the suit before it was to be decided by that Court and not by the Indore Court. It was also said that the Indore Court could not have issued an injunction or given a direction to the Asansol Court not to proceed with the suit there and the effect of issuing an injunction to the Plaintiff of the suit at Asansol indirectly achieved the object which an injunction to the Court would have done. It was further observed that it was open to the Respondent to apply for i transfer of the suit at Asansol to the Indore Court under the provisions of Section 22 of the Code of Civil Procedure. The Court held that the suit at Asansol which had been instituted later could be stayed in view of Section 10 of the Code and on the facts of the case the recourse to the inherent powers of the Court was not justified.

On the facts of this case I find myself unable to hold that the Coimbatore suit is a vexatious one in the sense that it is wholly unnecessary. Whatever be the merits of the Coimbatore suit and however hollow the claim therein may be it is not possible or right to say at this stage that the suit is wholly unnecessary. The Sugar Mills'' grievance, if there be any truth in it, cannot properly be agitated in the suit pending in this Court at the instance of Starcosa. The Calcutta suit is for the recovery of wages and incidental expenses. The Coimbatore suit is for recovery of damages for breach of contract to supply the plants which the Sugar Mills thought they would be getting and in any event the damages alleged to have been suffered by reason of the breach of the agreement to convert the plants by addition of new machinery into one which could produce glucose monohydrate of 99% purity. In order to negative the Plaintiff''s claim in the Calcutta suit the Sugar Mills rely upon an implied agreement that the wages of the erector and the engineer were not to become due until the plants were altered so as to turn out the product of the Sugar Mills'' choice. The Sugar Mills had realised that their cause of action was entirely different to Starcosa''s cause of action in the Calcutta suit and in the written statement in the Calcutta suit they made their position clear by asserting that they had been advised to file a separate suit. If it be held ultimately that the parties had entered into a contract in or about May 1960 to convert the plant then in the process of erection to one capable of producing glucose monohydrate of 99% purity by May 1961 a story which finds little support from the correspondence the Sugar Mills'' cause of action would be entirely different.

It was contended on behalf of the Respondent that the Sugar Mills could have easily filed their suit in Calcutta and the two suits could have been consolidated in that case and heard together. I do not see why the Sugar Mills, if they had any cause of action, should be compelled to come all the way from Coimbatore, where the erection of the plants took place and where the representations, if any, relied on by the Sugar Mills were made, to Calcutta and bring their witnesses and documents here. It would cast an intolerable hardship on the Sugar Mills because as Plaintiff they had the choice of forum and the balance of convenience as regards the trial of such a suit would certainly not be in Calcutta. It was only because the Calcutta suit was based on two letters one of which was received in Calcutta that this Court gave leave under Clause 12 of the Letters Patent. That does not, however, mean that the balance of convenience with regard to the trial of other disputes between the parties would be in favour of the litigation being proceeded within Calcutta. Starcosa had sent its engineer and erector to Coimbatore and they had worked there; the Sugar Mills have no connection with Calcutta and it is only an accident that one of their letters came to be addressed to Starcosa at Calcutta. On the correspondence which passed between the parties the claim of the Sugar Mills in the Coimbatore suit appears to be a very doubtful one, but whatever its strength it should be decided at Coimbatore. No doubt it would be more convenient for Starcosa and their witnesses to go on with the suit in Calcutta but this consideration cannot be allowed to override the consideration of the convenience of the Sugar Mills at Coimbatore on the basis that they have a genuine claim.

Although on the merits we are in favour of the Appellant yet in view of our conclusion that the order appealed from is not a judgment within the meaning of Clause 15 of the Letters Patent the appeal must be dismissed. The parties should in the circumstances of the case pay and bear their own costs.

Certified for two counsel.

Masud, J.

I agree.