Sabyasachi Mukharji, J. -
(1.)THIS is an application for stay of a suit instituted in this Court on or about the 11th August, 1975 This suit being Suit No. 404 of 1975 was instituted by the respondent to this application against the petitioner claiming a sum of Rs. 9.03,310/ - and in the alternative an enquiry into the damages suffered by the plaintiff and decree for the sum found due. On or about the 16th June, 1975, another suit being Suit No. 527 of 1975 had been instituted by the petitioner against three firms of which the respondent was the proprietor. The question is, whether, in these circumstances the petitioner is entitled to ask for stay of subsequently Instituted suit in the Calcutta High Court It appears that it is a common case that there was an agreement between the parties in respect whereof the terms were recorded by the offer made on the 16th February, 1974 and acceptance thereof by the 19th February, 1974. It is the case of the petitioner that there were certain additional terms upon which the parties entered into the bargain. It is also a common case that under the said agreement the goods were to be supplied In two different lots. The first lot was alleged to have been delivered by the respondent to the petitioner in December, 1974 and February, 1975. The petitioner states that the said delivery was not in accordance with the terms of the bargain between the parties and the petitioner had claimed damages as well as refund of the purchase price paid and on that basis on the 16th June, 1975, had Instituted the suit in the High Court at Bombay. It has been stated that subsequently on the 26th June, 1975, the petitioner had cancelled the contract That is the allegation of the petitioner in paragraph 20 of the petition. The second suit which has been instituted in the High Court of Calcutta was instituted by the respondent on the allegation of wrongful repudiation on the part of the petitioner and as such the respondent has claimed decree for Rs. 9,000/ - and enquiry into damages as mentioned hereinbefore. The claim of the petitioner in Bombay suit was for Rs. 1,69,988/ - as well as for Rs. 6 lacs. Therefore, the main question involved in the Bombay suit is whether there was proper performance of the contract by the respondent by the purported delivery for the first installment due under the contract. If not, to what damages or refund the petitioner is entitled for such failure on the part of the respondent to perform its obligation for the delivery of the first lot under the contract. The main question involved in the subsequent Calcutta suit would be whether there has been a wrongful repudiation of the contract by the petitioner and if so, is the plaintiff entitled to any damages or any sum of money on that account. These two questions in my opinion, are separate questions and the disposal of one issue or adjudication of one issue would not resolve the need for adjudication of the other. In the premises, I am of the opinion, that the matters in issue directly and substantially in both the suits are not the same. The principles upon which the court should exercise its jurisdiction under Section 10 of the Code of Civil Procedure are well settled. In this connection reliance may be placed on the observations in the case of Bepin Behary v. Jogendra Chandra,, AIR 1917 Cal 248 and also the observations of the Bench decision of this Court in the case of Shaw Wallace & Co. Ltd. v. Bholanath, : AIR 1975 Cal 411. For the aforesaid reasons I am unable to accept the contention urged in support of this application that the matters in issue in both these suits, being the same, the subsequently instituted Calcutta suit should be stayed.
(2.)IT was, next, contended on behalf of the respondent that the claim made in Calcutta suit was in excess of the claim of the petitioner in the Bombay suit.
Therefore, it was urged that disposal of the Bombay suit would not give the plaintiff in Calcutta suit full relief. It was contended that according to the view of the Calcutta High Court counter claim for excess amount was not admissible and in aid of this proposition reliance was placed on the observations of this Court in the case of Brijlal and Co. v. M. P. E. Board, : AIR 1975 Cal 69. Having regard to the view I have taken on the first aspect of the matter, I do not propose to express any opinion on the second contention urged in this application on behalf of the respondent.
(3.)IT was, lastly, contended that the application was belated. In this case the writ of summons was served upon the petitioner in August, 1975. On or about 10th November, 1975, the petitioner made an application for particulars and time to file written statement expired by that time. Thereafter, on the 5th January, 1976, the petitioner has made this application for stay of the suit. It was contended that this application should be refused, because no explanation was given for this delay. On behalf of the petitioner it was contended that the ground taken in the opposition was that the application was premature. It was not contended that the application was belated.
If that point had been taken, it was urged on behalf of the petitioner, then the petitioner might have tried to explain the delay. Prima facie, it appears to me that there is good deal of substance in the contention that this application is belated, but as mentioned hereinbefore in the view I have taken on the first contention, I need not rest my decision on this aspect of the matter.