- (1.) The Court : This is an application for stay of trial of the suit No.349 of 1999 and also for hearing of all other proceedings pending thereunder and operation of the interim order dated 25th June, 1999 passed in an application being Tender No.1230 of 1999. The stay has been prayed for on the ground that the instant suit is a later one in order of time than the applicant's suit being suit No.286 of 1999.
(2.) Mr. P.C. Sen, learned senior Advocate, appearing with Mr. A.K. Panja, Miss Tapati Ghosh, Mr. A.P. Ghosh and Mr. S.N. Mukherjee, Advocates, submits that admittedly his client's suit was instituted earlier and the matter in issue therein is also directly and substantially in issue in the later suit. It is submitted that though there are other defendants in later suit ,viz., defendant Nos. 2,3 and 4 and they are not parties to the earlier suit but no relief has been claimed against them, so in essence the later suit has been filed against the plaintiff in suit No.286 of 1999. In substance the contesting parties in both the suits are same.
(3.) Mr. Sen with effective assistance of Mr. S.N.Mukherjee argues that the pivotal issue in both the suits is whether the letter of transfer of advance licence amounting to 6,05,000 US dollar is valid or not. He argues that the plaintiff herein in order to have decree in a later suit is to establish the aforesaid issue in his favour. Similarly, his client's suit being earlier one the plaintiff therein is to establish that the aforesaid letter of transfer is forged one. Mr. Sen contends therefore having regard to the averment made in both the plaints and the reliefs claimed thereunder bone of contention certainly centres round the aforesaid common and identical issue. He also argues that in the event the aforesaid issue is decided in the earlier suit such decision will non-suit the later suit. Therefore, the statutory rigour which is a mandatory one, under section 10 of the Code of Civil Procedure is to be applied. He submits not only the suit but also the pending interlocutory application in connection therewith and operation of the interim order passed therein shall be stayed and this has precisely been decided by a Bench decision of this court in an appeal being No. 28 of 1995 (Hanuman Trading Corporation-vs-Galaxy Manufacturing Trading Co.& Ors.) while affirming the judgment of the learned single Judge on this point.;