Anil Kumar Sen, J. - (1.) - This is a revisional application at the instance of the defendant in Commercial Suit No.336 of 1972 of the 10th Bench, City Civil Court, Calcutta. The order impugned is one dated August 10, 1983. By the order impugned the learned Judge has decided a preliminary issue against the defendant. That preliminary issue is to the effect as to whether the claim put forward in the present suit being Commercial Suit No.336 of 1972 is barred by principles of res judicate in view of the decree passed in Money suit No.126 of 1972 by another court between the parties.
(2.) Certain facts are not in dispute. The plaintiff I.S.P. Trading Company entered into an agreement on October 21, 1971, with the defendant to supply 300 pieces of E. R. W. Steel boiler tubes. The terms and conditions of the agreement were set out in the defendant's letter dated October 21, 1971. The plaintiff instituted Commercial Suit No.336 of 1972 on the allegation that the plaintiff duly supplied the said 300 pieces of E.R.W. Steel boiler tubes according to specification and in accordance with the terms and conditions of the agreement, the plaintiff received only a sum of Rs.6, 000/- by way of advance. But the defendant failed and neglected to pay the balance value of the goods to supply in spite of fact that the bills were duly submitted therefore. Adjusting the said advance of Rs.6,000/- against the total value of the goods assessed at Rs.13, 287/- the plaintiff sought for a decree for Rs.7, 287/- together with interest amounting to Rs.655.75. This suit was filed in the City Civil Court, Calcutta.
(3.) The defendant, on the other hand, filed Money Suit No.126 of 1972 in the Court of the learned Sub-ordinate Judge. Gopalganj against the present plaintiff for a decree for a sum of Rs.7, 135/-. The said claim was laid on the ground that the defendant advanced a sum of Rs.6, 000/- on the self same contract dated October 21, 1971, but in breach of that contract the present plaintiff supplied goods, which were not in accordance with the specification nor in terms of the agreement between the parties. The defendant called upon the plaintiff to inspect the tubes rejected by them and to get them satisfied that the tubes supplied were not in accordance with the specification, but the said request was overruled wrongfully. Accordingly the defendant claimed that by rescinding the contract the defendant was entitled to get refund of the advance of Rs.6,000/- together with interest and cost of transportation. The total figure was arrived at by adding Rs.6,000/- as the advance to be refunded with Rs.572/- by way interest and Rs.563/- towards the cost.;