N. Dutta v. Jardin Victor Limited — 1983 DIGILAW 116 (PAT)

Judgment 1. This civil revision application is directed against an order dated 23-3-1980 by which the Court below has stayed the hearing of Money Appeal No. 10 of 1978 till the disposal of First Appeal No. 32 of 1978, in exercise of the powers conferred under Sec.151, Civil P. C. (hereinafter to be referred to as the Code). Being aggrieved by the said order the plaintiff-petitioner has moved this Court to vacate the order of stay. 2. This case needs a very short narration of facts. The plaintiff-instituted a money suit which was numbered as money Suit No. 129 of 1976 against M/s. Jardin Victor Limited for realisation of commission pursuant to a contract entered into between the plaintiff and the said company on 11-3-1968, for sale of goods to M/s. National Coal Development Corporation at Ranchi. The commission having fallen due and not paid, the plaintiff was constrained to institute the suit aforesaid. Money Appeal No. 10 of 1978 arises out of the said suit. 3. The plaintiff-petitioner entered into another contract with M/s. Jardin Handerson Company Limited on 11-3-1968 for representing the Company as well as to sell their products on commission, the plaintiff instituted a suit bearing Money Suit No. 128 of 1976 against M/s. Jardin Handerson Company Limited out of which First Appeal No. 32 of 1978(R) arises and is pending in the High Court. 4. An application, under Sec.10 read with Sec.151 of the Code was filed on behalf of M/s. Jardih Victor Limited in Money Appeal No. 10 of 1978 for staying the hearing, of the said appeal during the pendency of First Appeal No. 32 of 1978 preferred by M/s. Jardin Handerson Company Limited. The prayer for stay was refused by the Court. M/s. Jardin Victor Limited preferred civil revision application No. 294 of 1979(R) in this Court and this Court by its judgment dated the 7th July. 1980, set aside the order and directed the Court below to dispose of the application treating it to be an application under Sec.151 of the Code. This time while the Court considered the said application under Sec.151 of the Code, concluded that it is a fit case where the Money Appeal No. 10 of 1972 should be stayed till the final disposal of First Appeal No. 32 of 1978(R) arising out of Money Suit No. 128 of 1976. 5. This time while the Court considered the said application under Sec.151 of the Code, concluded that it is a fit case where the Money Appeal No. 10 of 1972 should be stayed till the final disposal of First Appeal No. 32 of 1978(R) arising out of Money Suit No. 128 of 1976. 5. It may be stated here that plaintiff had instituted another suit, namely, Money Suit No. 54 of 1978 against M/s. Jardin Victor Limited for recovery of ninety per cent of the balance commission and this Court in civil revision application No. 371 of 1979(R) stayed Money Suit No. 54 of 1978 till the disposal of Money Appeal No. 10 of 1978 on 3rd October, 1980 which arose out of Money Suit No. 129 of 1976. This relates to recovery of ten per cent commission under the same contract and against the same party. 6. Mr. Sinha, learned counsel appearing on behalf of the plaintiff-petitioner, has assailed the impugned order of stay and strenuously argued that this is not a case where the Court should have granted stay in exercise of its inherent power. He submitted that in the instant case the defendants are two different limited companies. The claim against the two Companies is distinct and different for rendering services to them separately. Merely because the date of the two contracts and/or the date of two termination letters bear the same date, the prayer sought for cannot be granted, as these considerations are wholly irrelevant for the grant of stay. He referred to the cases of Manohar Lal Chopra V/s. Rai Bahadur Rao Raja Seth Hiralal ( AIR 1962 SC 527 ), Ramchand and Sons Sugar Mills Private Ltd., Barabanki (U. P.) V/s. Kanhayalal Bhargava, ( AIR 1966 SC 1899 ) and contended that the power under Sec.151 of the Code can only be resorted to for the ends of justice and to avoid an abuse of the process of Court. In short, the submission is that the topic of stay of suit having been dealt with under Sec.10 of the Code and the conditions for its applicability having also been provided under the said section, merely because in a given case the said conditions are not attracted, the parties cannot freely resort to Sec.151 of the Code as a residuary section for all the topic specifically dealt with under the Code. 7. Mr. 7. Mr. Debi Prasad, learned counsel appearing for defendant-opposite party (M/s. Jardin Victor Limited) contended that it is a fit case where the Court has rightly exercised its inherent jurisdiction by staying the disposal of Money Appeal No. 10 of 1978 till the final disposal of First Appeal No. 32 of 1978 (R). He submits that though the contracts have been executed by two different Companies, they are of the same date, namely, 11-3-1968 and the terms and conditions of the two contracts are also same and similar. He further contended that M/s. Jardin Victor Ltd. is only subsidiary of M/s. Jardin Handerson Limited and, therefore the Court below in order to avoid multiplicity of proceedings, stayed the said Money Appeal. It was also contended by him that the disposal of the First Appeal No. 32 of 1978 (R) will dispose of all disputes between the parties, be that with M/s. Jardin Victor Limited or M/s. Jardin Handerson Limited. Mr. Debi Prasad very fairly conceded that Sec.10 of the Code has got no application for the prayer sought for, but it is now well established by several decisions of this Court as well as other High Courts, to stay suits and appeals under Sec.151 of the Code where Sec.10 is not attracted. (See Sheikh Mohammad Yasin V/s. Md. Abdril Razzaque ( AIR 1954 Pat 10 ); Chandra Shekhar Mandal V/s. Chun Chun Mandal. (1978 BBCJ (HC) 132); and Vijay Kumar V/s. Manohar Lal (AIR 1979 Delhi 1)). 8. The inherent jurisdiction of the Court to make orders ex debito justitiae has only been affirmed by Sec.151 of the Code, and it is well settled that jurisdiction cannot be exercised so as to nullify express provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In Manohar Lals case ( AIR 1962 SC 527 ) (supra), the appeal before the Supreme Court was directed against grant of order of injunction under Sec.151 of the Code as the Court felt difficulty in granting injunction in exercise of the powers conferred under Order 39, Rule 1, of the, Code. The Supreme Court quashed the order granting injunction issued in exercise of the powers under S.151 of the Code and observed:- "The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure. The Supreme Court quashed the order granting injunction issued in exercise of the powers under S.151 of the Code and observed:- "The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice." In Ram Chand and Sons Sugar Mills case ( AIR 1966 SC 1899 ) (supra) while considering the scope of Sec.151 of the Code as well as the provisions of Order 29, Rule 3 of the Code, it was held by the Supreme Court that the power under Sec.151 of the Code:- "Will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions." It was also observed in the said case that the Court can make suitable order under S.151 of the Code, only to prevent abuse of process of the Court or for the ends of justice. Mr. Debi Prasad, learned counsel drew may attention to the decision of the Supreme Court in Newabganj Sugar Mills Co. Ltd. V/s. Union of India. ( AIR 1976 SC 1152 ) in support of his contention, but, the said decision in no way departs from the earlier views expressed by the Supreme Court in relation to the scope of the provisions of Sec.151 of the Code. This case reiterates somewhat in different language the said principle, as Krishna Iyer. J., speaking for the Court observed that:- "The inherent power has its roots in necessity and its breadth is co-extensive with the necessity." This only means, that this power is more for the necessity of the Court to be resorted to to achieve the ends of justice and to prevent abuse of the process of Court. Mr. J., speaking for the Court observed that:- "The inherent power has its roots in necessity and its breadth is co-extensive with the necessity." This only means, that this power is more for the necessity of the Court to be resorted to to achieve the ends of justice and to prevent abuse of the process of Court. Mr. Debi Prasad, referred to the decisions in Bajrang Rai V/s. Ismail Mian, 1978 BBCJ (HC) 428 : ( AIR 1978 Pat 339 ) and drew my attention to para 17 of the said report where the Special Beach of this Court observed as follows :- "17....... (1) The inherent powers of the Court are very wide and are not in any way controlled by the provisions of the Code. (2) They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them. (3) The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. The Limitations are not due to the fact that the inherent power is controlled by the Code but because it should be presumed that the procedure specially provided for orders in certain circumstances is dictated by the interest of justice. (4) Inherent powers are to be exercised where specific provision does not meet the necessities of the case." 9. It is true that in an appropriate case Court may resort to the provisions of Sec.151 of the Code in order to achieve the ends of justice or to prevent the abuse of the process of Court, but this is not a case where either of the two situations at all arise. In the instant case the contracts are with two different limited Companies to render services to them on remuneration payable under two different contracts. It is of no consequence whether M/s. Jardin Victor Limited is only subsidiary of M/s. Jardin Handerson Company Limited. This only means that M/s. Jardin Handerson Company Limited has a larger share in M/s. Jardin Victor Limited. The date of the contracts and termination letters are of the same date are wholly irrelevant, so long as the appointment and termination are distinct from each other issued by two different Companies. This only means that M/s. Jardin Handerson Company Limited has a larger share in M/s. Jardin Victor Limited. The date of the contracts and termination letters are of the same date are wholly irrelevant, so long as the appointment and termination are distinct from each other issued by two different Companies. Sec.10 of the Code deals with the topic of stay of suits. The basic purpose of the section is to protect a person from multiplicity of proceedings, as well as for applicability of the principles of res judicata. The requirement of Sec.10 of the Code, therefore, is that the matters in issue in both the suits should be directly and substantially in issue in the previously instituted suit between the same parties or under, whom they are litigating. Mr. Prasad submits that Sec.10 of the Code is not attracted only because the parties are different but the interpretation of one contract may have a bearing on the interpretation of the other contract, as the contracts are similarly termed and in that view of the matter, to avoid conflicting judgment the Court below was fully justified in passing the impugned order in the ends of justice. 10. I am unable to persuade myself to accept the said submissions of Mr. Prasad. If the said submission of Mr. Prasad is taken to its logical conclusion, it would mean that if there are two suits pending in two different Courts between two different parties, and the questions of law in one case have a bearing in the other suit, the Court would be called upon to stay the subsequent suit because of the pendency of the other suit, where the question having bearing in the subsequent suit is being adjudicated upon. The basic purpose for stay of one of the suits is to save a person from being vexed twice for the same thing and, therefore, in my opinion if the parties are different then in no event the Court would be justified to stay the subsequent suit because of the pendency of different suit in exercise of the powers conferred under Sec.151 of the Code. Ms. Ms. P.K. Sinha, learned counsel appearing for the petitioner, has rightly contended, that in cases where the High Court granted stay in exercise of the powers under Sec.151 of the Code, the parties were always the same and/or they were litigating under the same title and one case was intimately connected with the other. 11. Mr. Debi Prasad has, however, not been able to draw my attention to any decision where the Courts have granted stay in exercise of the powers conferred under Sec.151 of the Code where the parties are different. 12. Mr. Sinha referred to an unreported decision of this Court in Civil Revn. Appln. No. 371 of 1979(R) where the Court justified resort to Sec.151 of the Code in granting stay of Money Suit No. 54 of 1978 in view of the pendency of this very Money Appeal No. 10 of 1978, but in both the cases the parties are same, contracts and termination letters are also same. The only difference is that in one case the suit is for ten per cent commission and in the other case, the suit is for the balance of the commission. The said decision if I may say so with respect, supports the view expressed by me. 13. In the result, the application is dismissed, but without costs.