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2014 DIGILAW 104 (AP)

Amrutlal & Company, Merchants & Commission Agents, Nizamabad v. Rankids Impex Private Limited,New Delhi

2014-01-27

M.S.RAMACHANDRA RAO

body2014
Judgment : This Revisionis filed under Article 227 of the Constitution of India by petitioner challenging the order dt.14-07-2004 of the District Judge, Nizamabad in I.A.No.23 of 2003 in O.S.No.7 of 2002. 2. The respondent is a Company registered under the Companies Act, 1956. It engages in the business of exporting turmeric besides other items to its foreign buyer/importers. It’s registered office is at New Delhi. 3. The petitioner is a partnership firm doing business as a Commission Agent in purchases and sales of agricultural products like maize, turmeric and other agricultural products based in Nizamabad in Andhra Pradesh. 4. The respondent, in order to meet its requirement in terms of an export order procured by it, was purchasing turmeric from the petitioner from 1997-98, prior to the filing of the above suit. 5. As per the business dealings between the parties, the respondent, after procuring export orders from its foreign buyers, would place an order of purchase of turmeric on the petitioner, to be supplied in batches as per the requirement of foreign buyer to ensure timely export and also payments over a period of time. The foreign buyer would open a Letter of Credit on the respondent as per it’s requirement. The respondent would inform the petitioner of the opening of the Letter of Credit by the foreign buyer to enable the petitioner to ensure procurement of goods with delivery to Mumbai for export. The petitioner would inform the respondent about its procurement of the goods from local market and once the goods are received by it in its godown, it would inform the respondent of the same. The respondent would then inform the approved and nominated International Inspection Agency of the foreign buyer who would inspect the goods and certify the quality, quantity, packaging and other specifications of the goods so that they may be fit for export as per the requirement of the foreign buyer as also the export norms applicable. THE SUIT O.S.NO.2287/1999 6. According to the respondent, the total quantity of the goods to be exported in terms of the purchase order and the price at which the same is to be supplied is negotiated and agreed prior to foreign buyer placing a confirmed order on the respondent. On 08-02-1999, according to the respondent, a foreign buyer approached it for supply of 470 M.T. of turmeric. On 08-02-1999, according to the respondent, a foreign buyer approached it for supply of 470 M.T. of turmeric. It then negotiated and finalized the supply of this quantity of turmeric from the petitioner at a price of Rs.28,500/- per M.T.; that the petitioner confirmed the order and terms of the agreement for supply by a fax communication dt.25-02-1999 but stated that it would supply the goods either in its own name or in the name of its associate/sister concern representing that the same was necessary for the purpose of taxation/accounting etc; and that the supply was to be in three consignments subject to the opening of a Letter of Credit by the foreign buyer. 7. The 1st consignment was for 210 M.T. A Letter of Credit was opened on 19-03-1999 by the foreign buyer in respondent’s favor. Although the petitioner procured and supplied it, according to the respondent, two bills were raised for the said quantity – one for 110 M.T. in the name of the petitioner and another for 100 M.T. in the name of M/s.Jeetmal Industries, Nizamabad. But according to respondent, no negotiations /dealings were held with M/s.Jeetmal Industries, Nizamabad and payments were made to the petitioner only by respondent. 8. The 2nd consignment was for another 210 M.T. A Letter of Credit was opened on 03-06-1999 by the foreign buyer in favor of respondent. According to the respondent, the petitioner expressed its inability to procure and supply this entire quantity and suggested that it could supply only 105 M.T. and the balance of 105 M.T. forming part of its 2nd consignment be procured by the respondent from some other source. According to the respondent, it thus procured only 105 M.T. from the petitioner and other 105 respondent from some other source. According to the respondent, it thus procured only 105 M.T. from the petitioner and other 105 M.T. from other sources. In respect of this consignment of 105 MT, according to the respondent, the petitioner raised a bill for 50 M.T. in the name of M/s.Jeetmal Industries, Nizamabad for the price of Rs.34,695/- per M.T. and not as per the agreed price of Rs.28,500/-. According to respondent, this was disputed by it and when the same was brought to the notice of the petitioner, the petitioner agreed that the bill was inadvertently raised by M/s.Jeetmal Industries and that they would have corrected it at the earliest. According to respondent, this was disputed by it and when the same was brought to the notice of the petitioner, the petitioner agreed that the bill was inadvertently raised by M/s.Jeetmal Industries and that they would have corrected it at the earliest. The respondent contended that it would raise a bill for the balance of 55 M.T. forming part of this consignment in the name of the petitioner only and send both the bills duly corrected to the respondent in due course of time. 9. According to the respondent, by 07-07-1999, it had made payments to the tune of Rs.96,25,000/- to petitioner on account subject to final adjustment/conciliation of account. 10. Thereafter, the 3rd and last consignment of 50 M.T. was to be supplied, for which the foreign buyer opened a Letter of Credit on 26-06-1999. Although the shipment was to be made by 12-08-1999, according to respondent, it could not be done on account of a transport strike and that later the petitioner refused to allow the loading of goods to Mumbai even though it received full payment of Rs.14,25,000/- by Demand Draft bearing No.594501 on 28-07-1999 drawn on Vijaya Bank, Barakhamba Road, New Delhi. According to the respondent, it had paid a sum of Rs.13,63,167/- in excess to the petitioner and it is liable to recover the same. 11. According to the respondent, it had paid a sum of Rs.13,63,167/- in excess to the petitioner and it is liable to recover the same. 11. The respondent therefore filed O.S.No.2287 of 1999 against petitioner seeking the following reliefs: a) Pass a decree for Mandatory Injunction in favour of plaintiff and against the defendants thereby directing the defendants to load/dispatch the goods, i.e. 50 M.T. of Turmeric lying duly inspected and sealed in the premises of defendants Nos.1 and 2 at 17, Shardhanand Ganj, Nizamabad – 503002 (A.P.) under supervision of the representative of M/s.S.G.S. India Ltd., authorized inspection agency appointed by the foreign buyer as also the representative of the plaintiff for Mumbai port for further shipment to Tehran (Iran) to enable the plaintiff to meet its commitment to the foreign buyer in terms of L/C opened by the foreign buyer on the plaintiff; b) Pass a decree in favour of plaintiff and against the defendants for recovery of Rs.13,63,317/- (Rupees Thirteen Lacs Sixty-three thousand three hundred and seventeen only) inclusive of interest till the filing of the suit along with pendentelite and future interest @ 24% p.a. till realization; c) Award costs of the suit in favour of the plaintiff as against the defendants; and d) Such other further orders as the Hon’ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendants. 12. Written Statement in this suit appears to have been filed by the petitioner and the following issues were framed on 22-07-2010: 1. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? 2. Whether the plaintiff is entitled for a recovery of suit amount? 3. Whether this court has no jurisdiction to entertain the present suit? 4. Relief? 13. O.S.No.2287 of 1999 was later transferred from the High Court of Delhi to the Additional District Judge, Delhi. THE SUBSEQUENT SUIT O.S.NO.7 OF 2002 14. The petitioner filed O.S.No.7 of 2002 before the District Judge at Nizamabad against the respondent without stating about the total supply order of 470 MT allegedly placed by respondent with it and inter alia contending that the price payable for the turmeric supplied by it would be the prevailing market rate at the time of dispatch. The petitioner filed O.S.No.7 of 2002 before the District Judge at Nizamabad against the respondent without stating about the total supply order of 470 MT allegedly placed by respondent with it and inter alia contending that the price payable for the turmeric supplied by it would be the prevailing market rate at the time of dispatch. It disputed the contention of respondent that price of goods was fixed at the time when the order was placed by respondent on petitioner. It stated that it was doing business as a commission agent in purchase and sale of agricultural products. 15. According to the petitioner, the respondent placed an order for purchase of 110 M.T. of turmeric at the prevailing market rate with it during third week of February 1999; that after it was inspected, it was packed and dispatched to Mumbai to be delivered to the respondent for export; that it had submitted a bill No.2 dt.03-04-1999 for Rs.30,73,170/- and sent it to respondent; that respondent was also to pay freight charges at Mumbai, but it did not pay it and petitioner had to pay a sum of Rs.61,830/- to the truck owners at Nizamabad; that respondent also did not pay the entire amount sought under Bill No.2, but only paid a sum of Rs.27.00 lakhs through demand draft on 08-04-1999 and 12-04-1999; that on instructions of respondent, it had paid Rs.28,50,000/- to M/s.Jeetmal Industries, Nizamabad and that the respondent had promised to repay the same. 16. On 03-06-1999, the respondent had placed an order for purchase of 55 M.T. turmeric on the petitioner; that it had arranged for the supply to respondent at Mumbai and the same was also exported to Gulf countries; that petitioner had sent Bill No.22 for a sum of Rs.20,49,560/- to respondent; that it is also entitled to receive the cost of gunny bags and freight for this consignment; respondent telephonically requested the petitioner to pay further sum of Rs.17,34,880/- to M/s. Jeetmal Industries, Nizamabad and n the said instructions, the petitioner paid the said amount on 15-07-1999 on account of the respondent only. 17. According to petitioner, subsequently orders were again placed for supply of a further consignment of 50 M.T. and 210 M.T. respectively in 1st week of July 1999. 17. According to petitioner, subsequently orders were again placed for supply of a further consignment of 50 M.T. and 210 M.T. respectively in 1st week of July 1999. It contended that petitioner had asked for payment of entire amounts including the payments made by it to M/s.Jeetmal Industries, Nizamabad and although it procured these quantities, as the respondent did not make made by it to M/s.Jeetmal Industries, Nizamabad and although it procured these quantities, as the respondent did not make payments as demanded, it did not send the goods to respondent; that 210 MT of goods had to be sold in open market on 11th October 1999 and 50 MT was sold on 12.10.1999 since the prices of turmeric were falling in order to minimize it’s loss. So the respondent is also liable to pay sum of Rs.35,06,816/- to the petitioner for loss on 200MT and Rs.5,55,453/- for loss sustained on sale of 50 MT, being the difference between the rate at which it had purchased them and the rate it which it had sold them ; that all these amounts are liable to be paid to it with the interest @ 24% per annum on quarterly rests. It therefore, prayed that the following reliefs be granted to it: (i) That a decree for recovery of Rs.63,79,951/- be passed against the defendant; (ii) That the future interest at 24% P.A. with quarterly rests be awarded on the suit amount of Rs.63,79,951/- from the date of the suit to be date of realization of entire amount; (iii) That the costs of this suit be awarded; (iv) Any other relief or reliefs to which the plaintiff is entitled to be awarded. 18. A written statement was filed by the respondent opposing claim in O.S.No.7 of 2002. It contended that the respondent had suppressed the fact that it had sworn an affidavit before an oath commissioner on 19.2.2000 that parties had reached a settlement with regard to claims against each other and filed the suit with an intention to play fraud on the Court. It contended that the suit O.S.No.7 of 2002 is liable to be stayed in terms of the provisions of Section 10 CPC as the matter in issue therein is directly and substantially an issue in the suit O.S.No.2287 of 1999 pending before the High Court of Delhi. It contended that the suit O.S.No.7 of 2002 is liable to be stayed in terms of the provisions of Section 10 CPC as the matter in issue therein is directly and substantially an issue in the suit O.S.No.2287 of 1999 pending before the High Court of Delhi. It specifically contended that it had always placed orders for supply of turmeric and the petitioner had agreed for fixed price but not price at the prevailing market rate as alleged by petitioner. It disputed the claims made by petitioner and contended that petitioner had never dealt with the respondent as Commission Agent. It also contended that it had paid Rs.1,10,50,000/- by 27.8.1999 and that a sum of Rs.5,59,113/- was paid in excess to what petitioner was entitled to; since the last consignment of 50 M.T. was not supplied by the petitioner, after having received the payment of Rs.14,25,000, petitioner is liable to pay back the said amount. It also denied that it had ever placed an order for 210 M.T./50 M.T. in addition earlier order of 470 M.T. and alleged that it cannot be held responsible for any loss on that count. Its contention was that 210 M.T. and 50 M.T. orders placed in July 1999 were part and parcel of the 470 M.T. for which it had contracted with the petitioner to supply. It reiterated its contentions in the plaint in O.S.No.2287 of 1999 filed by it in the Delhi High Court. 19. On the basis of the above pleadings the following issues were framed: 1. Whether the plaintiff was having dealings with the defendant since 1997-98 for purchase of Turmeric on Commission basis? 2. Whether the defendant placed order in February, 1999 for purchase of Turmeric weighing 110 M.T. on the prevailing market rate and whether the plaintiff has supplied the said quantity to defendant, and whether the defendant has paid the bill amounts of this supply? 3. Whether the defendant placed order for purchase of Turmeric weighing 55 M.T. in June, 1999 on the prevailing market rate, and whether the plaintiff has supplied the said quantity, and whether the defendant has paid the bill amount? 4. Whether the defendant has requested the plaintiff to pay any amounts to M/s.Jeetmal Industries, Nizamabad. How much amount was paid by the plaintiff, and whether the plaintiff is entitled to recover the said sum from the defendant? 5. 4. Whether the defendant has requested the plaintiff to pay any amounts to M/s.Jeetmal Industries, Nizamabad. How much amount was paid by the plaintiff, and whether the plaintiff is entitled to recover the said sum from the defendant? 5. Whether the defendant has placed orders for purchase of 50 M.T. and 210 M.T. of turmeric during the 1st week of July, 1999, and whether, the plaintiff has purchased the said quantities accordingly ? 6. Whether the defendant has arranged for payment of the Bill amounts of July, 1999 purchase orders. For not paying the said bill amounts, whether the plaintiff has re-sold the said quantity in local market, at lesser rate? If so, whether the plaintiff is entitled to recover the difference amount from the defendant? 7. Whether the plaintiff is entitled to recover the suit amount of Rs.63,79,951.00 on account, from the defendant with future interest at 24% per annum from the date of suit, to the date of realisation of the entire amount? 8. Whether the suit of the plaintiff is not maintainable as contended by the defendant? 9. Whether the suit of the plaintiff is barred by limitation? 10. Whether the suit of the plaintiff is bad for non-joinder of M/s.Jeetmal Industries, Nizamabad and liable for dismissal? 11. Whether the defendant has placed the orders for purchase of turmeric on fixed rate per M.T. as contended by him. If so, at what rate? 12. To what relief?” THE APPLICATION UNDER SECTION 10 CPC. 20. The respondent filed I.A.No.23 of 2003 in O.S.No.7 of 2002 under Section 10 of CPC to stay of all further proceedings in O.S.No.7 of 2002 pending disposal of O.S.No.2287 of 1999 before the High Court of Delhi. 21. By Order dt.14-07-2004, the said I.A. was allowed and the proceedings in O.S.No.7 of 202 were stayed by the District Judge, 21. By Order dt.14-07-2004, the said I.A. was allowed and the proceedings in O.S.No.7 of 202 were stayed by the District Judge, Nizamabad pending disposal of O.S.No.2287 of 1999 before the High Court of Delhi. 21. By Order dt.14-07-2004, the said I.A. was allowed and the proceedings in O.S.No.7 of 202 were stayed by the District Judge, 21. By Order dt.14-07-2004, the said I.A. was allowed and the proceedings in O.S.No.7 of 202 were stayed by the District Judge, Nizamabad pending disposal of O.S.No.2287 of 1999 before the High Court of Delhi. It held that the suits are between the same parties; that cause of action, subject matter and dispute between parties is same as per agreement between parties in February,1999 but the amounts claimed by parties is different basing on their respective accounts; that quantity of turmeric in O.S.2287/1999 is 470 MT while in O.S.No.7 of 2002 , it is 425 MT; so the suit O.S.No.2287/1999 is more comprehensive than O.S.No.7 of 2002 for the same cause of action; and so the latter is to be stayed under section 10 CPC. 22. This was challenged by the petitioner in this Court in C.R.P.No.6150 of 2004. By Order dt.19-07-2006, C.R.P.No.6150 of 2004 was allowed and the order dt.14-07-2004 of the District Judge, Nizamabad in I.A.No.23 of 2003 in O.S.No.7 of 2002 was set aside and the said I.A. was dismissed. 23. Challenging the same, Civil Appeal No.714 of 2013 was filed by the respondent before the Supreme Court. By order dt.21-01- 2013, the said Civil Appeal was allowed and the order passed in C.R.P.No.6150 of 2004 was set aside; the matter was remitted back to this Court for fresh disposal on the ground that this Court had not analyzed the pleadings in the two suits and only after doing so, it should decide the question whether the District Judge was justified in exercising power under Section 10 CPC. 24. Thus CRP.No.6150 of 2004 again got restored to the file of this Court. 25. Heard Sri Pratap N.Sanghi, counsel for the petitioner and Sri V.R.N.Prashant , counsel for M/s Indus Law Firm. THE CONTENTIONS OF THE COUNSEL FOR PARTIES 26. The learned counsel for petitioner submitted that the District Judge, Nizamabad had erred in staying the proceedings in O.S.No.7 of 2002 pending disposal of O.S.No.2287 of 1999 on the file of Addl.District Judge, Delhi. Heard Sri Pratap N.Sanghi, counsel for the petitioner and Sri V.R.N.Prashant , counsel for M/s Indus Law Firm. THE CONTENTIONS OF THE COUNSEL FOR PARTIES 26. The learned counsel for petitioner submitted that the District Judge, Nizamabad had erred in staying the proceedings in O.S.No.7 of 2002 pending disposal of O.S.No.2287 of 1999 on the file of Addl.District Judge, Delhi. He further contended that the subject matter of both the suits is not identical and since the requirement of Section 10 CPC is not fulfilled, the Court below ought not to have exercised the power under Section 10 CPC to stay the proceedings in O.S.No.7 of 2002 pending disposal of O.S.No.2287 of 1999 on the file of Addl.District Judge, Delhi. He placed reliance upon National Institute of Mental Health and Neuro Sciences Vs. C.Parameshwara ( (2005) 2 SCC 256 ), Karri Satyanarayana and Others Vs. Pichika Veerraju and Others ( 1996 (1) ALD 616 ), Meridian Industries Limited, Pollachi, Kovalpudur Coimbatore Vs. Devdoot Gin Mill Ginning and Oil Mill Unit, Adilabad ( 2005 (3) ALD 511 )and Kolan Balwanth Reddy Vs. Reddy Janga Reddy ( 2011 (6) ALD 105 ). He contended that for invoking jurisdiction under Section 10 for stay of the subsequent suit, it is not enough if certain issues are found common and that it is necessary that the subject matter must be the same and identical. He also contended that the mere fact that one of the questions in issue in O.S.No.2287 of 1999 ( re: 50 MT supply) is also an issue in O.S.No.7 of 2002, would not make the subject matter of both suits identical. 27. The learned counsel for the respondent, on the other hand, contended that the test for applicability of Section 10 CPC is “whether on a final decision being reached in the previously instituted suit, would such decision operate as res judicata in the subsequent suit?” He contended that if the issues have bearing on the relief sought for, the same becomes determining factor to attract Section 10 CPC and therefore it is necessary to examine the relief sought for in the respective suits. He contended that if the grounds though similar, have no bearing on the relief sought for, Section 10 would not apply, but if a finding in one suit has a bearing on the other suit thereby effecting the relief sought for, then Section 10 would get attracted. He contended that both suits deal with purchases and supplies of turmeric in the year 1999, the subject matter in both the suits is intrinsically similar. According to him while the respondent contends that price of the turmeric is fixed at Rs.28,500/- per M.T. and was agreed prior to placing of order by respondent on petitioner, petitioner contends that the price is as per the prevailing market rate; that the amounts sought for by petitioner are based on the prevailing market price while the respondent’s claim is that price is already fixed; and therefore, the matter in controversy is one and the same. He also contended that if O.S.No.7 of 2002 is adjudicated before the suit O.S.No.2287 of 1999, the issue whether the price is fixed or not would get decided and issue No.2 in suit No.2287 of 1999 virtually becomes infructuous and the findings in O.S.No.7 of 2002 would operate as res judicata. He relied upon a decisions of the Supreme Court in Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor (2013) 4 S.C.C. 333 )and Arun General Industries Limited Vs. Rishabh Manufacturers Private Limited and Others (AIR 1972 Calcutta 128). 28. I have noted the submissions of both sides. THE CONSIDERATION OF THE CONTENTIONS BY THIS COURT 29. The question to be considered is : “Whether in the facts and circumstances of the case, the proceedings in O.S.No.7 of 2002 on the file of the District Judge, Nizamabad ought to be stayed by exercising the power under Section 10 CPC pending disposal of O.S.No.2287 of 1999 before the Additional District Judge, Delhi?” 30. Section 10 CPC states : “10. Section 10 CPC states : “10. Stay of Suit:No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.” 31. Under what circumstances the power under Section 10 CPC can be exercised has been considered by the Apex Court in a 31. Under what circumstances the power under Section 10 CPC can be exercised has been considered by the Apex Court in a number of cases. 32. In British Indian Corporation Ltd. Vs. Rasthraco Freight Carriers ( (1996) 4 S.C.C. 748 ), the appellant had entrusted to the respondent a quantity of raw wool worth Rs.51.48 lakhs as carriers for transportation to Cawnpore Woolen Mills but the respondent having taken delivery of the goods detained them in his custody and filed a suit O.S.No.612 of 1994 before the Civil Court at Kanpoor for a permanent injunction restraining the appellant from taking forcible possession of the goods alleging that certain amounts were due from the appellants towards arrears of transportation charges. Subsequently the appellant filed a suit O.S.No.793 of 1994 for recovery of the goods lawfully entrusted to and unlawfully detained by the respondent. An application under Section 10 CPC filed seeking stay of trial in O.S.No.793 of 1994 was dismissed by the trial Court but the High Court in Revision stayed the suit. The Supreme Court held that the High Court erred in staying the latter suit. The Supreme Court held that the causes of action between the two suits were entirely different, that there is no common issue directly or substantially in issue in both suits and therefore, the power under Section 10 CPC cannot be exercised and the proceedings in the later suit should not have been stayed. 33. In Gupte Cardiac Care Center and Hospital Vs. 33. In Gupte Cardiac Care Center and Hospital Vs. Olympic Pharma Care (P) Ltd. ( (2004) 6 S.C.C. 756 ), the Court reiterated that if the matter in the later suit is found to be “directly and substantially in issue” in the previously instituted suit, the later suit is liable to be stayed under Section 10 of CPC. 34. In National Institute of Mental Health and Neuro Sciences (1 supra), the appellant had initiated disciplinary proceedings against the respondent on charges of misappropriation of drugs. On the basis of the findings arrived at in the disciplinary enquiry, the respondent was removed from service. The extent of loss suffered by the appellant, as found in the disciplinary enquiry, was Rs.1,79,668.46 Ps. Being aggrieved by the order of dismissal, the respondent moved the Labour Court. On 29-10-2001, the Labour Court passed an award setting aside the order of removal dt.12-04-1993 and directing reinstatement. Aggrieved thereby, the appellant filed W.P.No.24348 of 2002 in the High Court of Karnataka. The appellant also instituted Civil Suit No.1732 of 1995 against respondent for recovery of loss suffered by it with interest. On 20-06-1993, the respondent filed application under Section 10 of CPC in the Civil Suit No.1732 of 1995 seeking stay of the suit till the disposal of W.P.No.24348 of 2002. This was dismissed by the trial Court. The said order was challenged by the respondent in C.R.P.No.2211 of 2003 before the High Court of Karnataka. The High Court allowed the Revision and stayed the proceedings in the suit while directing expeditious disposal of Writ Petition. The appellant challenged this order in the Supreme Court. The Court held that both the Civil Suit and Writ Petition operated in different spheres and the subject matter of the two proceedings was entirely distinct and different. It held that even the cause of action of the two proceedings was distinct and different as the cause of action in filing the suit is the loss suffered by the appellant on account of shortage of drugs while the cause of action in the Writ Petition was the challenge to the award of the Labour Court granting reinstatement of the respondent. It observed that proceedings before a Labour Court cannot be equated with proceedings before a Civil Court, that they are not courts of concurrent jurisdiction and Section 10 of CPC therefore has no application. It observed that proceedings before a Labour Court cannot be equated with proceedings before a Civil Court, that they are not courts of concurrent jurisdiction and Section 10 of CPC therefore has no application. Referring to the scope of Section 10 of CPC, the Court stated : “8.The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical”. 35. Thus, the Court held that the object of Section 10 is to avoid recording of conflicting findings on issues which are directly and substantially in issue in the previously instituted suit and the fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit and that Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. 36. 36. Recently in Aspi Jal and another (5 supra), the Court again reiterated the principles laid down in the above decision in National Institute of Mental Health and Neuro Sciences (1 supra). In addition it also indicated that the test would be to ask, “can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed?” And if the answer is in the affirmative, the subsequent suit is not fit to be stayed. It also held that even if many of the matters in issue are common between the suits, unless the entire subject matter of the two suits is the same, Section 10 will not apply. It clearly stated that Section 10 will not apply where a few of the matters in issue are common and will apply only when the entire subject matter in controversy is same and that “the matter in issue” is not equivalent to “any of the questions in issue”. In that case the petitioners filed a suit for eviction against the respondent on the ground of bonafide requirement for self occupation and acquisition of alternative accommodation by the respondent (herein after referred to as ‘the 1st suit’). They filed another suit for eviction of the respondent on the ground of non-user for several years of the premises by the respondent before the institution of the suit (herein after referred to as the ‘2nd suit’). During the pendency of these two suits, they also filed a 3rd suit for his eviction on the ground of non-user for a continuous period of not less than 6 months immediately prior to the institution of this suit. The respondent filed an application under Section 10 CPC for stay of hearing of the 3rd suit till final disposal of the 1st and 2nd suits. The trial Court stayed the 3rd suit and the same was also confirmed in Revision by the High Court of Bombay. But the Supreme Court held that the ground of eviction in the 3rd suit and the ground of eviction in the earlier High Court of Bombay. The trial Court stayed the 3rd suit and the same was also confirmed in Revision by the High Court of Bombay. But the Supreme Court held that the ground of eviction in the 3rd suit and the ground of eviction in the earlier High Court of Bombay. But the Supreme Court held that the ground of eviction in the 3rd suit and the ground of eviction in the earlier two suits were similar but they were based on different causes; that the plaintiffs/petitioners may or may not be able to establish the ground of non-user in the earlier two suits but if they establish the ground of non-user for a period of 6 months prior to the institution of the 3rd suit, they may still get a decree for eviction therein; and therefore, Section 10 is not attracted. 37. In Karri Satyanarayana (2 supra), Meridian Industries Limited, Pollachi (3 supra) and in Kolan Balwant Reddy (4 supra), this Court also held that for invoking Section 10 CPC, the subject matter of both the earlier and later suits should be identical and it is not enough if certain issues are found identical. The Calcutta High Court in Arun General Industries Ltd. (6 supra) took a contra view and held that the subject matter in dispute and matter in issue in the two suits need not be identical in every particular and that it is adequate if the matters in controversy in the two suits are substantially same. In view of the decisions of the Supreme Court referred to supra, I am of the view that the law declared by it is binding on this Court and the view of the Calcutta High Court does not represent the correct legal position. I therefore decline to follow the decision of the Calcutta High court. 38. Coming to the facts of the present case, in O.S.No.2287 of 1999 pending before the Additional District Judge, Delhi, the respondent is contending firstly that the failure of the petitioner to despatch the third consignment of 50 M.T. even though it received full payment of Rs.14,25,000/- from the respondent is not valid in law and that a mandatory injunction be granted directing the petitioner and others to load/despatch this consignment. It also claims that it has paid a sum of Rs.13,63,317/- in excess of the amounts due to the petitioner and seeks refund of the same with interest. It also claims that it has paid a sum of Rs.13,63,317/- in excess of the amounts due to the petitioner and seeks refund of the same with interest. This is opposed by the petitioner contending that the respondent, not having paid certain amounts due to it, the despatch was rightly not made by the petitioner. These amounts are claimed by the petitioner in the later suit O.S.No.7 of 2002. 39. No doubt the respondent is also contending that the price for the supply of the goods is fixed and was negotiated and agreed between petitioner and respondent prior to foreign buyer placing a confirmed order on respondent. Per contra, the petitioner contends that the price payable is the market rate prevailing at the time of despatch. This issue is common to both the suits. 40. Respondent contends that certain payments made to petitioner by it include amounts payable to the petitioner only but made in the name of M/s.Jeetmal Industries, Nizamabad at instance of petitioner and that the respondent had no dealings directly with M/s.Jeetmal Industries. According to respondent, orders were sent to it by petitioner in the name of M/s.Jeetmal Industries stating that it was its sister concern. Per contra, petitioner contends that this is not so and that on telephonic instructions of the respondent, certain payments were made by it to M/s.Jeetmal Industries on account of the respondent only and that these amounts have also to be reimbursed by the respondent. This issue is also common to both the suits. 41. But in addition to the above issues, in O.S.No.7 of 2002, the petitioner has also claimed freight charges, cost of gunny bags and these claims are not the subject matter of O.S.No.2287 of 1999. Even if O.S.2287/1999 is dismissed, the question of payment of these charges by respondent to petitioner would have to be still decided in O.S.7 of 2002, while deciding issue (vii) therein. 42. Whether the respondent placed order for 50 MT and 210 MT in July 1999 in addition to the 470 MT is to be considered in O.S.7 of 2002 only and does not arise in O.S.2287 of 1999. 43. 42. Whether the respondent placed order for 50 MT and 210 MT in July 1999 in addition to the 470 MT is to be considered in O.S.7 of 2002 only and does not arise in O.S.2287 of 1999. 43. In both suits no doubt the issue as to validity of refusal of petitioner to supply 50 MT for which order was placed in July, 1999 by respondent is common since in O.S.No.2287 of 1999, the respondent wants a mandatory injunction to be given to petitioner to supply this lot and in O.S.7 of 2002, the petitioner seeks compensation for the loss of Rs.5,55,453/- sustained by it by selling this quantity in open market at a loss after it procured it but did not despatch it to respondent on ground that the latter did not pay the amounts demanded by it. 44. In addition to this 50 MT, according to petitioner, another lot of 210 MT was also asked to be supplied by respondent in July, 1999 but the petitioner after it procured it, did not despatch it to respondent on ground that the latter did not pay the amounts demanded by it; instead sold it in open market and suffered loss of Rs.35,06,816/- which is to be recovered from respondent. This issue does not form part of subject matter of O.S.No.2287 of 1999. In O.S.No.2287 of 1999, the respondent states that there were two lots each of 210 MT sought to be purchased by respondent, one in March,1999 and another in June,1999. There is no reference to a purchase order placed in July, 1999. According to respondent, the entire first lot of 210 MT was supplied but bills were raised for 110 MT by petitioner and 100 Mt by M/s Jeetmal Industries. As regards the second lot of 210 MT, the petitioner had supplied only 105MT but expressed inability to supply the balance 105MT vide a communication dt.7.6.1999 and this 105MT was procured by respondent from another source. Thus the issue as to second lot of 210 MT for which orders were allegedly placed in July,1999 does not arise in O.S.2287 of 1999. 45. Thus the issue as to second lot of 210 MT for which orders were allegedly placed in July,1999 does not arise in O.S.2287 of 1999. 45. The questions “whether the petitioner was justified in not supplying these quantities to respondent after procuring the said quantities?” and “ whether the petitioner is entitled to recover the difference in price on account of resale by it of the said quantities in October, 1999 ?” (covered by issue no.(v) and (vi) in O.S.7 of 2002) are questions which are also not the subject matter in O.S.No.2287 of 1999. 46. Therefore, only some matters are common to both the suits and the whole of the subject matter in both the suits is not identical. Thus, a final decision in O.S.No.2287 of 1999 would not operate as a res judicata in O.S.No.7 of 2002. 47. In this view of the matter, I am of the opinion that the Court below erred in holding that the cause of action in both the suits is the same and in staying the proceedings in O.S.No.7 of 2002 invoking Section 10 CPC. 48. Therefore, C.R.P.No.6150 of 2004 is allowed and the order dt.14-07-2004 in I.A.No.23 of 2003 in O.S.No.7 of 2002 of the District Judge, Nizamabad is set aside. No costs. 49. As a sequel, the miscellaneous petitions, if any pending, shall stand closed.