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2000 DIGILAW 165 (MAD)

MRF Ltd. v. International Polymer Equipment

2000-02-07

A.RAMAMURTHI

body2000
Judgment : 1. The second defendant in C.S. No. 442 of 1997 has filed these applications under Order 14, Rule 8 of Original Side Rules read with Order 7, Rule 11 of Civil Procedure Code, Order 14, Rule 2 of Civil procedure Code, Order 14, Rule 5 of Civil Procedure Code and also read with Order 9, Rule 12 of Civil Procedure Code to reject the plaint as barred by law and as not disclosing any cause of action, to dispose of the suit on the preliminary issue of law and to postpone the settlement of the issues of fact after the settlement of issues of law, to strike out/amend the issues framed in. the suit on 3.12.98 and to direct the first respondent to make discovery on oath of all the documents in its power and possession relating to the claim for costs. 2. Thecase in brief for disposal of all these applications is as follows: The first respondent has filed the suit against the applicant and the 2nd respondent for a declaration that the first respondent is not liable to pay the applicant any sum of money as alleged in the legal notice dated 15.9. 91 issued on behalf of the applicant, a sum of US dollars 62000 which is the cost already incurred by the 1st respondent in defending the suit instituted by the applicant in USA, a sum of US dollars 50000 as damages for loss of reputation both real and apparent suffered by the 1st respondent as a result of alleged fraud committed by the applicant and a sum of US dollars 50000 as compensation for the mental agony caused to the executives and Board of Management of the plaintiff. The first respondent had placed orders on the applicant for purchase of certain machinery (calendar equipment). These orders were placed through the 2nd respondent, which functioned as an agent of the first respondent. The applicant supplied goods to the first respondent through the 2nd respondent. The first respondent is liable to pay money for the calendar equipment under the various invoices raised by it to the applicant amounting to US dollars 2.24, 537. The applicant instituted a civil suit for recovery in the United States District Court for the Northern District of Ohio and the suit was also numbered. The first respondent is liable to pay money for the calendar equipment under the various invoices raised by it to the applicant amounting to US dollars 2.24, 537. The applicant instituted a civil suit for recovery in the United States District Court for the Northern District of Ohio and the suit was also numbered. Two issues were framed for trial viz., (1) Whether the second respondent was the agent of the 1st respondent in the sale of the rubber processing equipment from the first respondent? (2) Whether the 2nd respondent was acting within the scope of its agency with the first respondent when it failed to pay the applicant for the calendar equipment?. 3. After trial, the jury gave its verdict on 30.7.96 in favour of the applicant relating to the first issue and against the applicant in the second issue. The applicant had succeeded in proving that the 2nd respondent was acting as the agent of the first respondent in the contract. However, since It had been held that the non-payment of the calendar equipment by the 2nd respondent to the applicant was not within. the scope of the agency. The claim was dismissed in favour of the first respondent. 4. The first respondent filed a post-verdict petition for attorney fees, and other related litigation costs amount to 20, 50, 507-50 US dollars, which includes the costs for travel, boarding for the executives and witnesses. Upon consideration of the petition, the District Court of Ohio ordered costs in favour of the first respondent. On 6.11. 96, it was challenged by way of a review by the applicant, which was rejected on 28.2.97. The appeal was filed by the applicant in the United States of Appeals for the 6th Circuit which was also numbered. It included the appeal filed by the applicant against the order awarding the full costs. The first respondent also filed a Cross Appeal against the finding of the jury that the 2nd respondent was acting as the agent of the first respondent in the transaction in question. The suit now filed by the first respondent was liable to be rejected as barred by law on the basis of the foregoing admitted facts and other details. The first respondent also filed a Cross Appeal against the finding of the jury that the 2nd respondent was acting as the agent of the first respondent in the transaction in question. The suit now filed by the first respondent was liable to be rejected as barred by law on the basis of the foregoing admitted facts and other details. The relief sought for by the first respondent is a declaration that the legal notice dated 15.9.91 is not binding on it and it is barred on the principles of limitation and res judicata. The issue has been adjudicated upon by the District Court at united States of America. The issue has been resolved and cannot be reopened again. The attempt of the first respondent in claiming costs in the present suit is nothing but an attempt to unjustly enrich itself. Regarding compensation of malicious prosecution the case was filed by the applicant in united States of America has been adju-dicated and determined and the first respondent had not sought dismissal of the suit filed by the applicant on the ground that it is maliciously instituted before the District Court at U.S.A. The first respondent, in fact, filed a cross appeal before the Appellate Court and the proceedings have thus not been concluded. The plaint is also bereft of particulars with reference to the fraud or malicious prosecution. Any claim on account of mental agony suffered by them is to be adjudicated by the Directors individually and the first respondent cannot make any claim. The issues raised in these applications are legal issues on the very maintainability of the suit and they can be determined on the basis of the documents on record without any evidence. The suit is clearly an abuse on process and ought not to be entertained by this Court. The first respondent has deliberately suppressed the fact that it was claimed and the award of the costs and the entire claim by the Court in united States of America. If the first respondent is directed to produce the relevant documents, it will enable this Court to fairly and expeditiously dispose of the present suit. 5. Issues were already framed as if certain facts are admitted but which are in fact contested by both the parties. If the first respondent is directed to produce the relevant documents, it will enable this Court to fairly and expeditiously dispose of the present suit. 5. Issues were already framed as if certain facts are admitted but which are in fact contested by both the parties. The applicant therefore filed application under Order 14, Rule 5 of Civil Procedure Code for amendment/striking out of the issues and for framing of issues afresh. He had raised the issue relating to the maintainability of the suit. If the issues are not strike out, it will cause grave prejudice to the applicant. The other application has been filed to dispose of the case on the preliminary issue of law and to postpone the settlement of issue of fact. Hence, these petitions. 6. The first respondent filed one set of counter relating to Applications No. 1003 and 1006 of 1999 and filed another set of counter for applications No.1004 and 1005 of 1999. For deciding whether the plaint discloses a cause of action or not. It is imperative that the Court has to peruse the averments in the plaint and the accompanying documents relied upon. All the facts should be gathered together which are necessary to prove the relief that is found in the plaint. There is no privity of contract between the first respondent and the applicant but nevertheless the suit in U.S.A. had been instituted revealing the deceitful intention of the applicant as well as the second respondent trying to extract the cost of the material supplied twice from the first respondent. The entire cause of action arose on the alleged ground that the applicant issued a notice to the plaintiff calling upon him to pay Us dollars 2,24.000 for the supply of certain spares for tyre manufacturing machinery that was ordered through the second respondent. On receipt of the notice, the 2nd respondent was contacted by the first respondent and the applicant was told to ignore the letter. It was alleged in the suit filed in U.S.A. that the 2nd respondent herein is the agent of the first respondent. On receipt of the notice, the 2nd respondent was contacted by the first respondent and the applicant was told to ignore the letter. It was alleged in the suit filed in U.S.A. that the 2nd respondent herein is the agent of the first respondent. The 2nd respondent became commercially insolvent and that is the reason as to why the applicant had tried to implicate the first respondent in the proceedings before the Court in U.S.A. alleging that the 2nd respondent is an agent of the 1st respondent, and therefore ought to make good claim put up before the Court. The case was defended by the first respondent before the Court in U.S.A. to establish that the transaction between the first respondent and the 2nd respondent was on principal to principal basis and there was no privity of contract between the applicant and the 1st respondent. The applicant produced a statement of account before the Court at Ohio and it disclosed number of transactions between the applicant and the 2nd respondent and it had nothing to do with the 1st respondent. It was concluded by the Jury that the 2nd respondent was an agent of the first respondent in that Country. The said Court to start with did not have jurisdiction to try the suit because the contract the first respondent had with the 2nd respondent arose in Madras as the orders were place only at Madras and letters of credit were also opened only at Madras. After the suit was dismissed, the first respondent was definitely agitated the way in which they had been unnecessarily dragged to a foreign court without any contractual obligation cast on the part and to incur huge amount of money and had also suffered loss of reputation and mental agony. They do have the right in law to maintain the suit that has been filed before this Court. 7. Reliefs claimed in the plaint can only be decided after evidence is recorded and the documents are marked. The applicant is alien and he had no business transaction with the first respondent. The orders placed by the first respondent on the 2nd respondent are filed before this court together with the plaint and letters of credit opened have also been filed to prove that the contract was only between the respondents 1 and 2 and not with the applicant through the 2nd respondent. The orders placed by the first respondent on the 2nd respondent are filed before this court together with the plaint and letters of credit opened have also been filed to prove that the contract was only between the respondents 1 and 2 and not with the applicant through the 2nd respondent. This court need not take cognizance what had transpired in the court at U.S.A. on the frivolous suit filed by the applicant against the respondents. The first respondent does have a cause of action to claim the amount in these proceedings and they need not wait till the decision is rendered by the Appellate Court at Ohio. In fact the first respondent has also preferred an appeal against the verdict that the 2nd respondent is an agent of the first respondent. The suit can never be rejected as barred by law. The proceedings crystalised in the form of a judgment in the U.S.A. Court only on 13.7.96 and the present suit was filed in February, 1997 and the question of limitation does not arise. The suit was instituted in U, S.A, for a definite sum of money on the ground of certain spares being supplied. The cause of action for the present suit is completely different. The averment of res judicata cannot be pleaded before this Court because according to the first respondent, the court at Ohio has no jurisdiction to try the suit. The issues in the suit at U.S.A. are totally different from the issues that have to be decided in the present suit. Notwithstanding the costs awarded by the District Court, Ohio since the same has not been paid and as it has not been realised, there is justification in including the claim in this plaint. The suit was filed by the applicant before the court at U.S.A, was done with mala fide motive. This being a serious allegation going into the reputation, it cannot be brushed aside but has to be decided on extensive evidence. The fraud played by the applicant and the 2nd respondent would definitely be proved in the trial. The issues were already framed in this suit and at this stage, these applications are filed unnecessarily. Unless and until the applicant is examined before this court, the conspiracy hatched between the applicant and the 2nd respondent could never be detected. The fraud played by the applicant and the 2nd respondent would definitely be proved in the trial. The issues were already framed in this suit and at this stage, these applications are filed unnecessarily. Unless and until the applicant is examined before this court, the conspiracy hatched between the applicant and the 2nd respondent could never be detected. The cost and expenses incurred by the first respondent in U.S.A. Court has not been paid. The applications are premature and ought to be dismissed with exemplary cost. 8. Issues framed are not the end but only begin-ning or prelude to the trial. The applicant will have a fair opportunity to let in necessary evidence and to contest the suit and dispel any assumption lurking in their minds. If the applicant assumes that the second respondent was the agent of the 1st respondent, that assumption would have to be tested before this court and the verdict of the court at U.S.A. that the second respondent is the agent of the first respondent need not be taken cognizance of because the said foreign court judgment internationally goes against the basic principle of fair play and justice. There is no necessity to be tried as a preliminary issue because there are other issues which also have to be considered. Unless evidence is adduced on all the issues framed by the court since one is dependent on the other, they cannot be segregated. Hence, these applications are liable to be dismissed. 9. Heard the learned counsel of both sides. 10. The points that arise for consideration are (1) Whether the plaint in C, S. No.442 of 1997 is liable to be rejected on the ground of limitation and not disclosing any cause of action ? (2) whether the suit can be disposed of on the preliminary Issue relating to question of law and postpone the settlement of the issues ? (3) Whether the first respondent/plaintiff can be directed to make discovery of all the documents in its power and possession relat-ing to the claim for costs ? (4) To what relief? 11. (2) whether the suit can be disposed of on the preliminary Issue relating to question of law and postpone the settlement of the issues ? (3) Whether the first respondent/plaintiff can be directed to make discovery of all the documents in its power and possession relat-ing to the claim for costs ? (4) To what relief? 11. Points: The first respondent/plaintiff filed the suit against the defendants 1 and 2 for a declaration that the plaintiff is not liable to pay the 2nd defendant any sum as alleged in the notice dated 15.9.91 issued on behalf of the 2nd defendant, payment of a sum of U.S. dollars 62,000 by the defendants, which is the cost incurred by the plaintiff in defending the suit instituted by the 2nd defendant in U.S.A., payment of a sum of U.S. dollars 50000 by the defendants as damages for loss of reputation both real and apparent caused to the plaintiff as a result of fraud committed by the defendants and payment of a sum of U.S. dollars 50,000 as compensation for the mental agony caused to the executives and Board of Management of the plaintiff. While this being so, the applicant/2nd defendant has filed these applications, claiming various reliefs. The 1st respondent/plaintiff had placed orders on the applicant/2nd defendant for purchase of calendar equipment. According to the applicant, these orders were placed by the 1st respondent through the 2nd respondent, who functioned as an agent. The applicant supplied goods to the 1st respondent through the 2nd respondent. The first respondent is liable to pay money under various invoices raised by it and for this purpose, it is admitted that the applicant instituted a suit for recovery in U.S.A. for the Northern District of OHIO. Two issues were framed for trial and the first issue is whether the 2nd respondent was the agent of the first respondent and the 2nd issue was whether the 2nd respondent was acting within the scope of its agency with the first respondent and after trial, the Jury gave a verdict on 30.7.96 favouring the applicant in respect of issue No.1 and against the applicant in respect of issue No.2. Learned counsel for the applicant stated that the applicant succeeded in proving that the 2nd respondent was acting as the agent of the 1st respondent in the contract; but, however, it was held that the non-payment of the calendar equipment by the 2nd respondent to the applicant was not within the scope of the agency and suit was dismissed in favour of the first respondent. 12. The first respondent also filed a petition for attorney fees and other related litigation cost to the tune of 20,000 U.S. dollars which includes cost of travel, boarding, etc. of the witnesses as well as executives. The District Court of OHIO ordered costs of 20,000 U.S. dollars and it was challenged by the applicant on review; but it was rejected on 28.2.97. The applicant preferred an appeal in the United States Court of Appeals for the 6th Circuit which included the order awarding the full costs claimed by the first respondent also. Similarly, the first respondent also filed a cross appeal against the finding of the Jury that the 2nd respondent acted as the agent of the first respondent in the transaction in question. It is admitted that the legal notice was Issued on behalf of the applicant to the 1st respondent on 15.9.91. The judgment by the District Court was pronounced on 3l.7.96. The motion for costs was laid by the first respondent on 14.8.96 and the cross appeal was also filed by the first respondent against the finding of the Jury on 9.9.96. The present suit was filed by the first respondent in February, 97. The United States Courts of appeals for the 6th Circuit passed the order on 16.6.99 remanding the case for proceedings consistent with the opinion of the Appellate Court. 13. It is admitted that the first respondent issued orders on the applicant for supply of calendar equipment used in the manufacture of tyres. According to the applicant, the orders were placed by the first respondent through the 2nd respondent whereas the first respondent would contend that the order was placed directly to the 2nd respondent and there is no privity of contract with the applicant itself. Learned counsel for the applicant first contended that the suit filed by the first respondent is liable to be rejected on the ground of limitation as well as on the ground of res judicata. Learned counsel for the applicant first contended that the suit filed by the first respondent is liable to be rejected on the ground of limitation as well as on the ground of res judicata. Learned counsel for the applicant contended that the relief sought for by the first applicant is a declaration that the legal notice dated 15.9.91 is not binding on it. The issue had already been decided by the foreign court holding that the 2nd respondent was acting as the agent of the first respondent and only in the Appellate court, the matter was remanded back for re-consideration. Now, the relief of declaration cannot be sought for by the first respondent after, so many years. The notice was issued in the year 1991 but the present suit was filed by the first respondent in February, 97. For which, learned counsel for the first respondent contended that the case filed by the applicant was disposed of in the foreign court only in July 96 and thereafter, within the period, in February, 97 the present suit has been filed. As adverted to, the applicant filed the suit in the foreign court for recovery of the money against both the respondents and ultimately, the claim was dismissed. It is also pertinent to point out that the first respond himself has raised a plea even in the foreign court that the entire cause of action arose within the jurisdiction of the Indian Court and the foreign court has no jurisdiction; but, however, that contention had been negatived. Learned counsel for the 1st respondent further stated that since the 2nd respondent became commercially insolvent, the applicant tried to implicate the 1st respondent in the proceedings before the court as if the 2nd respondent is the agent of the first respondent and therefore ought to make good the claim put up before court. Learned counsel for the first respondent further stated that the transaction between the respondents 1 and 2 was on principal to principal basis and there was no privity of contract between the applicant and the first respondent. Learned counsel for the applicant also stated that the issue now raised by the first respondent has been already raised by him in the foreign court and as it has been tried and decided by the District Court in Ohio, U.S.A., it is clearly barred on the principle of res judicata. Learned counsel for the applicant also stated that the issue now raised by the first respondent has been already raised by him in the foreign court and as it has been tried and decided by the District Court in Ohio, U.S.A., it is clearly barred on the principle of res judicata. Res judicata is also applicable to the foreign judgment unless it is shown that the foreign Judgment is vitiated by fraud or non-compliance of the principles of natural justice or in violation of the principles in section 13 of Civil Procedure Code. 14. A suit for declaration of a legal right must be normally initiated within a period of three years. Now, the legal notice was issued on 15.9.91 and it is the present cause of action for the plaintiff to initiate the suit. Learned counsel for the first respondent mainly contended that irrevocable letter of credit was entered into only at Madras and the orders were placed at Madras and. as such, this court has got jurisdiction. Further more, the plea of fraud and collusion has been raised in the plaint itself and it has to proved only on the basis of the evidence. Now, issues have been framed in the suit as early as December 98 and the entire questioncan be thrashed out in a full-fledged trial and there is no reason to reject the plaint or to give any finding in respect of other applications. Learned counsel for the first respondent stated that the judgment of the District Court, Ohio was obtained by the applicant in deceiving the Jury and, as such, there was clear intention to deceive and there was also a misrepresentation before the foreign court relating to the agency and it was only in the appeal, the Appellate Court analysed the entire situation and had come to the conclusion that the 2nd respondent was not the agent of the first respondent. However, It is pertinent to point out that the matter has been remitted back to the Court at Ohio, U.S.A., It is also admitted that the 1st respondent filed an application to tax the cost for defending the suit in the foreign court excluding the attorney's fees and on 14.8.96 the cost was fixed by the district Court and aggrieved against this, the applicant took the matter in appeal and in the Appellate court, the cost was disallowed to the extent of 7000 U.S. dollars. Now. the disallowed portion is claimed by the first respondent in the present suit and also the amount already allowed be cause till date, the amount has not been paid. It is necessary to state that the suit in the foreign court was filed only by the applicant and not by the first respondent, but they defended the suit. In the appellate court in the foreign country, the first respondent also filed a cross appeal. Now in the present suit, the first respondent has claimed damages under various heads not only for the company but also to the executives. Normally a suit can be filed where the cause of action wholly or partly arose. Now, in the present case, part of the cause of action had arisen in the Madras City; but, however, the applicant had filed the suit in the foreign court wherein the first respondent had entered appearance and defended the suit and invited a finding. For the purpose of rejecting the plaint or finding out whether there was any cause of action, the averments in the pleadings and the documents alone can be taken into consideration. Learned counsel for the applicant relied upon Article 58 of the Limitation Act whereas the first respondent relied upon Article 101 of the Limitation Act. 15. Learned counsel for the first respondent further stated that they are entitled to claim costs that has been disallowed by the Appellate Court in U.S.A and also the attorney's fees in defending the suit instituted against there by the applicant because there is no statutory provision to award attorney's fees notwithstanding the fact that the first respondent had succeeded in the court in the foreign country. He further pointed out that any company has board of directors and executives who are in management of the company and without them the company cannot function and if any harm is done in any manner whatsoever, naturally not only the company but the executives also can claim compensation and according to him, the entire matter can be thrashed out only in a full-fledged trial and the application are liable to be dismissed. 16. Learned counsel for the applicant further contended that the prayers (b), (c) and (d) claimed by the first respondent also cannot be granted. The determination of cost are incidental to the main proceedings. The cost incurred in respect of Attorney's fees can be claimed under U.S. Law. The first respondent has, however, given up the claim for attorney's fees and cannot now file a fresh suit before this court. Similar in order to sustain the plea for damages, they must show that the suit in Ohio was filed by the applicant was a malicious legal proceedings. They must establish the fraud or malice and apart from vague allegations, nothing has been stated to substantiate the same. A copy of the judgment of the foreign court is also filed in the typed set of documents and there is nothing, to show that the earlier suit filed by the applicant in the foreign court was a fraudulent act or a collusive one between the applicant and the 2nd respondent. Another contention raised by the learned counsel for the applicant is that the first respondent does not have any locus standi to claim damages for mental agony caused to the executives and members of the board and they have not come forward with any individual claim. There Is also no finding in the foreign court that there was any abuse of process on the part of the applicant in -moving the foreign court. 17. Rule 54of the Federal Rules of Civil Procedure relates to Judgments and costs. So far as Attorneys; fees is concerned other than attorneys' fees, except when express provisions therefor is made either in a stature of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. So far as Attorneys' fees is concerned, it shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial. The motion must be filed and served not later than 14 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made. The aforesaid clauses only indicate that there are provisions to claim costs as well as the attorneys' fees even in the foreign court when the first respondent had defended the suit. In fact the first respondent had claimed costs to the extent of more than 20000 U.S. dollars and although the same was allowed by the District Court, it was modified by the Appellate Court to some extent. Now, the learned counsel for the first respondent contends that they are entitled to claim the costs, which was allowed by the foreign court and later modified by the Appellate Court, before this court on the ground that the costs awarded by the foreign court is not yet realised. I am unable to agree with the contention of the learned counsel for the first respondent. When once the first respondent had raised a plea relating to the costs and invited a finding, he has to work out his right before that court and is not entitled to file a fresh suit before this court. As adverted to, the contention raised by the first respondent in the foreign court that this court has no jurisdiction has been negatived. When that being the state of affairs, whatever right available to the first respondent can be agitated only before that court. 18. As adverted to, the contention raised by the first respondent in the foreign court that this court has no jurisdiction has been negatived. When that being the state of affairs, whatever right available to the first respondent can be agitated only before that court. 18. Learned counsel for the applicant relied on Sunderabai v. Devaji, AIR 1954 SC 82 wherein it was observed that where the right claimed in both suits is the same the subsequent suit would be barred as res judicata though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was identical. They also relied on the decision in Union of India v. Nanka Singh, AIR 1968 SC 1370 reiterating the very same principle. They further relied on Sankaran Govindan. v. Lakshmi Bharathi and others, AIR 1974 SC 1764 wherein it was observed that it is a well established principle of private international law that if a foreign judgment was obtained by fraud, or if the proceedings in which it was obtained were opposed to natural justice, it will not operate as res judicata... A foreign judgment is impeachable for fraud in the sense that upon proof of fraud it, cannot be enforced by action or operate as res judicata. The fraud relied upon must be extrinsic or collateral and not merely fraud which is imputed from alleged false statements made at the trial which were met with counter-statements and the whole adjudicated upon by Court and so passed into the limbo of estoppel by the judgment. That estoppel cannot be disturbed except upon allegation and proof of new and material facts which were not before the former Court and from which is to be deduced the new proposition that the former judgment was obtained by fraud. The fraud which vitiates a judgment must generally be fraud of the part in whose favour the judgment is obtained". This decision is applicable to the case on hand. The fraud which vitiates a judgment must generally be fraud of the part in whose favour the judgment is obtained". This decision is applicable to the case on hand. It is necessary to state that although the suit was initiated by the first respondent in the foreign court, it was dismissed against the applicant and it cannot be said that any fraud was done by the applicant and obtained any favourable order. Only if the applicant got any order by fraud which vitiated the judgment, then alone it is open to the first respondent to canvass this point. Considering the fact that the applicant himself has moved a suit in the foreign court and ultimately it was dismissed and, as such, it cannot be said that any favourable order was obtained by the applicant. 19. Learned counsel for the applicant also relied on Mt.Bolo v. Mt.Kokklan, AIR 1930 PC 270 wherein it was observed that there can be no right to sue (until there is an approval of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. Reliance was also placed on another decision in Rukhmabai v. Laxminarayan, AIR 1960 SC 335 wherein it was observed that there can be no right to sue until there is an accrual of the right asserted in the suit. There is no dispute about the proposition. 20. Learned counsel for the first respondent relied upon number of decisions in order to show that the principle of res judicata is not applicable and there is cause of action for the first respondent to file a suit before this Court. He relied on State of Maharashtra v. M/s. National Construction Co. Bombay, AIR 1996 Bom. 236 wherein it was observed that the bar under section 11 of Civil P. C. applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata'". That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata'". He placed reliance on Sankaran v. Lakshmi, AIR 1974 SC 1764 and there is no dispute about this proposition, which is already referred. 21. Learned counsel for the first respondent also relied on another bench decision of this Court in Chinthamani Achi v. K.R.Karuppan, 1984 T.L.N.J. 321 relating to section 13 of Civil Procedure Code that unsatisfied decree gives rise to a fresh cause of action. If that cause has not fruitioned into a decree, notwithstanding an appeal from that decree, we do not think full satisfaction entered as far as the decree in Sri Lanka Court is concerned, would in anyway militate against the right of the plaintiff in the present suit. This decision may not have application to the case on hand, in the first place, there is no doubt that a debt or liability arising in any country may be discharged by the laws of that country and that such a discharge, it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it will be an effectual answer to the claim, not only in the courts of that country, but in every other country. The facts in the case referred to above indicates that the suit arose by a reason of a foreign judgment remaining unsatisfied on that date when the suit was filed and based upon the doctrine of election will squarely apply in the Sri Lanka Court waited for satisfaction, he could not get satisfaction and therefore having regard to the fact that there is no reciprocity between Sri Lanka and India he could not but file a fresh suit on that foreign Judgment. In those circumstances, the plaintiff having won in a foreign court and also succeeded in India cannot be defeated by stating that the decree had been satisfied. Hence, I am of the view that this decision will not improve the case of the first respondent. 22. Reliance was also placed on another decision of this court in K.Palaniappa v. Valliammal, AIR 1988 Mad. Hence, I am of the view that this decision will not improve the case of the first respondent. 22. Reliance was also placed on another decision of this court in K.Palaniappa v. Valliammal, AIR 1988 Mad. 156 that the tests to be applied in case where the plea of bar of the suit under order 2 Rule 2 C.P.C. is raised depends on (1) Whether the cause of action in the previous suit and the subsequent suit is identical ? (2) Whether the relief claimed in the subsequent suit could have been given in the previous suit on the basis of the pleadings made in the plaint? and (3) Whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit? Reliance was also placed upon Union of India v. M/s. Shibboo Mal & Sons, AIR 1989 P & H 205 that in deciding the question as to where the contract is made, the Court must take into consideration the provision of section 4 of the Contract Act. A contract is made when an offer of one party is accepted by the other party where acceptance is conveyed to the plaintiff, a part of cause of action arises there and the Civil Court has jurisdiction to entertain petitions under sections 14 and 17 of the Act. 23. As adverted to, the first respondent has claimed a declaration that they are not liable to pay the applicant any sum of money as alleged in the legal notice dated 15.9.91. The suit is filed before this Court only in 1997. The applicant already filed a suit based upon the said legal notice dated 15.9.91 and invited a finding against them, and hence, there is no possibility what-soever for the applicant to make any further claim before this court. This being the legal position, it is absolutely unnecessary on the part of the first respondent to come forward with a fresh suit before .this court claiming a relief of declaration relating to the legal notice which was issued in the year 1991 and using the same as cause of action in filing the suit in the year 1997. This being the legal position, it is absolutely unnecessary on the part of the first respondent to come forward with a fresh suit before .this court claiming a relief of declaration relating to the legal notice which was issued in the year 1991 and using the same as cause of action in filing the suit in the year 1997. The only ground urged by the learned counsel for the first respondent is that the case was disposed of by the District Court, Ohio in U.S.A. only in July, 1996 and therefore, the present suit has been filed within a period of one year. Now, it is admitted that the Appellate Court in U.S.A. had remitted the matter in September, 99 and when the entire matter is seized of in the foreign court and the first respondent having submitted to the jurisdiction of that court, I am of the view that he cannot have any cause of action to file a fresh suit on the same set of cause of action before this court. It is apparently clear that since the applicant already dragged the first respondent to a foreign court and as a counterblast, now the first respondent, who is having company in, this country have dragged the applicant from the foreign country to face trial in a separate suit. The second prayer in the plaint relates to cost of US dollars 62000 claimed by the first respondent relating to defending the suit instituted by the applicant in the foreign country. As adverted to, even in the foreign court, the first respondent had already raised a plea relating to the costs and although the same was allowed to the extent of 20000 U.S. dollars by the District Court, in the appellate court it was modified to certain extent and when the issue of costs had already been raised and decided by a foreign court, I am of the view that it is no longer open to the first respondent to file a fresh suit in respect of the rejected claim of costs by the foreign court and also to secure the costs which was awarded by the foreign court. Similarly, the prayer that relates to damages for the loss of reputation suffered by the first respondent company as a result of the alleged fraud committed by the applicant to the extent of 50000 U.S. dollars there is no finding either in the District Court or in the Appellate Court in the foreign country that there was any fraud on the part of the applicant in filing the suit. If a finding has been given against the applicant by the foreign court, then it may give rise to a cause of action to the first respondent to file damages. Further more, the matter has been now remitted back and till it is finally decided, I am of the view that the first respondent cannot have any cause of action to claim damages on this score also. Further more, the prayer (d) relates to claim of compensation of U.S. dollars 50000 for the mental agony caused to the executives and members of the Board of management. The mental agony caused to the executives and the Board of Management would be personal in nature and only the affected party is entitled to lay claim over the same. The first respondent already moved the foreign court relating to costs incurred by their officials for travel and other expenses and that has already been allowed. At that point of time, the first respondent has not thought it fit to raise any claim on that account. Considering the fact that the applicant already filed a suit in the foreign court based upon the suit transaction wherein the first respondent also entered appearance and defended the case and invited a finding, when once the matter has been decided by the foreign court, I am of the view that the present suit filed by the first respondent is not maintainable before this Court and the present suit also would also be clearly barred by time and/on the principles of res judicata. When the claim of the first respondent cannot be entertained inview of the legal plea raised by the applicant, I am of the view that it is absolutely unnecessary to call upon the parties to let in evidence relating to the other issues and give a finding. When the claim of the first respondent cannot be entertained inview of the legal plea raised by the applicant, I am of the view that it is absolutely unnecessary to call upon the parties to let in evidence relating to the other issues and give a finding. In my view, it is only an exercise in futility and, as such, when the court comes to the conclusion that the suit filed by the first respondent/plaintiff is not maintainable and the plaint is to be rejected, it has to be ordered accordingly, 24. For the reasons stated above. Application No.1003 of 1999 is allowed and the plaint is rejected, Consequently, the other applications are dismissed as unnecessary.