Rallis India Ltd. vs Assam Trading Co-operative Ltd.

Sarjoo Prosad, C.J.—This petition in revision is directed against an order passed by the learned Subordinate Judge of the, Lower Assam Districts refusing to stay a suit u/s 10, Civil P.C. The suit in question was filed by the Opposite Party in the Court of the Subordinate Judge at Gauhati in which the opposite party claimed to recover a sum of Rs. 7,699/2/- from the petitioner-defendant on the ground that the amount had remained outstanding in respect of price due from the petitioner for goods supplied.

The plaint in the suit alleges that the defendant purchased diverse quantities of Garo Hand ginned Cotton and Kuppas from the plaintiff between March, 1952 and January, 1953 worth Rs. 1,83,137/ 12/-. The defendant made payments from time to time which payments were adjusted towards the price and after the adjustments in quest Jon, the amount in claim remained due from the defendant to the plaintiff.

The suit in question was filed on 4-5-1954. The petitioner alleges that there is another suit pending between the parties in the original side of the Calcutta High Court in regard to the very same contracts and in that suit the question of supply and non-supply of goods is also one of die material questions involved.

It is, therefore, argued that the suit in the Calcutta High Court having been instituted earlier, the present suit which involves the same subject-matter should be stayed. The learned Subordinate Judge, after a consideration of the pleadings of the parries in the two suits in question, came to the conclusion that the subject-matters in issue in both the suits are different and as such, he did not see any ground for directing stay of the suit pending in his Court.

Mr. Gupta on behalf of the petitioners has urged that the learned Subordinate Judge has not correctly appreciated the pleadings and in the circumstances disclosed therein he should have directed the stay of the suit. He points out that the claims in the to suits arise out of various orders which were Braced with the plaintiff by the petitioner-defendant for supply of goods, and that the plaintiff-apposite party having ailed to make the supplier in question, the petitioner-defendant had to institute the Calcutta suit for recovery of damages from the opposite party.

A perusal of the pleading shows that the question involved in the suit pending before the learned Subordinate Judge does not directly arise in the suit instituted in the original side of the Calcutta High Court. There the question is for recovery of damages on account of non-supply of certain quantities of goods.

It does not appear that any question has been specifically raised in that suit about the payment of the price of tire goods already supplied. There is no difference between the parties as to the quantity of goods supplied in that suit. The whole question there is whether the defendants, the plaintiffs in the suit hero, should be made liable for payment of damages on account of breach of contract in not supplying the goods which the petitioner wanted.

In the present suit the dispute relates to the payment of price for the goods admittedly supplied. Here the plaintiff-opposite party says that there were certain payments made by the petitioner for the goods supplied, but some payments remained outstanding on account of those goods. The defence of the petitioner here is that the price claimed is excessive.

Therefore, the whole question which arises for consideration in this suit is. the question about the price payable in respect of the goods already supplied and it has nothing to do at all with the claim for, I damages for non-supply of goods.

In that case the petitioner, as plaintiff has sued for recovery of damages on account of goods not supplied, and the defendant, as we understand, contests the claim on the ground that he was not able to supply the goods on account of unavoidable circumstances and no, breach of contract was committed by him. It is therefore, clear that the point involved in the present suit does not directly and substantially arise in the suit instituted in Calcutta.

Mr. Gupta contends that in assessing damages in regard to the goods not supplied, in case the suit is decreed the Court may take into consideration whether or not damages would abate on account of the payment which the plaintiff-opposite party here claims to be due on account of the goods already supplied and therefore incidentally -this question also may arise for consideration in the that suit.

The issues in that Calcutta suit have not yet been framed. The opposite party plaintiff here says that he has raised no such claim there and although in para 3 of die plaint in that suit there is some averment in regard to the goods supplied, the question does not directly arise there.

It is indeed for the plaintiff in this suit who is defendant there to set up this claim against the petitioner but he has not done so, and the learned Counsel for the opposite party is justified in contending that the question does not directly arise there in view of the main question involved there in namely that the suit was one for damages on account of non-supply of goods.

On the whole, therefore, I am satisfied that the decision of the learned Subordinate Judge is justified. In the circumstances there in no room for our interference. The petition is accordingly dismissed; but we make no order as to costs.

Ram Labhaya, J.

I agree.