- (1.) The Court : The plaintiff has filed a suit before the Civil Judge (Senior Division) Gadchiroli in the year 2014 for recovery of mobilisation advance as well as damages suffered by reason of alleged non-performance of the contract by the defendant. The plaintiff says that the plaintiff is entitled to the refund of the mobilisation advance as the defendant was unable to execute the contract. The plaintiff has claimed damages since the defendant failed to refund the mobilisation advance as a consequence whereof the plaintiff could not utilise the said amount for its business purpose. Almost after one year the defendant in the Maharashtra suit has filed a suit in this Court against the defendant praying a decree for a sum of Rs. 45 crores on account of damages.
(2.) The claim and the counter-claim in both the suits are arising out of a work order. While the defendant in this suit contends that the defendant had failed to execute the work order and thereby the plaintiff is entitled to the refund of the mobilisation advance and damages for the breach, the plaintiff in the instant suit has contended that the defendant was negligent in performing its part of the reciprocal promises and thereby the defendant has committed a breach of the contract.
(3.) The defendant, who is the plaintiff in the Maharashtra suit, has filed an application under Section 10 of the Code of Civil Procedure for stay of the Calcutta suit. In order to ascertain whether the subsequent suit should be stayed, the Court is required to find out whether the matter in issue in the previously instituted suit is also directly and substantially in issue in the subsequent suit between the same parties. There cannot be any doubt that the claim and the counter-claim in the Maharashtra suit is arising out of the work order of which the parties have different versions to say. There cannot be also any dispute that the matter in issue before the Maharashtra Court is also directly and substantially in issue in the Calcutta suit.;