ORDER I.A. No.5595/2009 (under Section 10 CPC) 1. This is an application under Section 10 of Code of Civil Procedure, 1908 (CPC) filed by the defendant in the suit for stay of the present suit on the ground that between the parties a suit involving the same issues is pending in the High Court of Shimla. 2. The law with respect to Section 10 CPC is well settled and which is that a later suit between the same parties cannot proceed to trial if issues involved in the later suit are already a subject matter of issues in the previously instituted litigation. Of course, it is not necessary that each and every issue arising in the earlier litigation and the later litigation must be identical, and what is really required is that the main issues or the substantial issues which arise and would be decided in the earlier suit would be the same as the issues in the later suit. Putting it in another words, one of the principles which has been laid down for applicability of Section 10 CPC is that the decision in the first suit will operate as res judicata for the issues in the later suit. Also if parties to the earlier suit are different then the later suit cannot be stayed under Section 10 CPC, though this aspect is not relevant in this case as the parties to the present suit are not different than the parties to the earlier suit i.e. there are no parties to this suit who are not parties to the earlier suit. 3. On these principles, let us examine as to whether the present suit can be stayed and which is filed after around two months of the suit which is filed by the defendant in the High Court of Shimla. 4. The memo of parties in the suit filed in High Court of Shimla is as under:- “ In re: M/s Shambhave Contractor Pvt. Ltd., Hira Niwas, Ward No.1, House No.324, Near Saproon, Bus Stand, Bye Pass, Solan, Tehsil and District Solan, H.P. Through its Managing Director Shri L. R. Kashyap, son of Shri Balak Ram, resident of Shambhavi Niwas, Shilly Road, Solan, H.P.       ......Plaintiff. Versus 1. M/s Villayati Ram Mital Pvt. Ltd., B-33, Defence Colony, New Delhi, 2. Shri N.K. Mittal, Director, M/s Villayati Ram Mittal Pvt. Ltd., B-33, Defence Colony New Delhi. 3. Versus 1. M/s Villayati Ram Mital Pvt. Ltd., B-33, Defence Colony, New Delhi, 2. Shri N.K. Mittal, Director, M/s Villayati Ram Mittal Pvt. Ltd., B-33, Defence Colony New Delhi. 3. Military Engineering Services through its Chief Engineer Zone “N” Area, Airport Road, Chandigarh (U.T.). 4. Military Engineering Services through Garrison Engineer, Cantonment Area Juthogh, Shimla Hills, District Shimla, H.P......Defendants.” 5. The suit filed in Shimla is a suit for recovery of moneys by the present defendant against the present plaintiff for work done. Between the parties in the present suit there was a sub-contract with the defendant as a sub-contractee on account of the plaintiff having been granted a contract for construction of a military hospital in Shimla by the Union of India. Disputes and difference have arisen between the parties with respect to this sub-contract. In the earlier suit the present defendant as the plaintiff has also sought reliefs effectively for specific performance for continuing with the contract. 6. In the suit filed at Shimla, the reliefs which are prayed by the present defendant are as under:- “i) for recovery of Rs.45,54,924/- as the principal out-standing amount alongwith interest @ 12% per annum and costs accrued thereon as calculated upto 30.6.2008 alongwith future interest at the same rate w.e.f. 1.7.2008 till its realization. ii) for damages and for mandatory injunction for issuing directions to the defendants No.1 and 2 to make the outstanding payment to the plaintiff in terms of the Memorandum of Understanding dated 1.10.2006 as also the subsequent addendum/amended MOU dated 12.9.2007 and in the eventuality of the defendant No.1 and 2 failing to clear the outstanding amount, to direct the defendants No.3 and 4 to deduct the payments due to the plaintiff from the bills of the defendants No.1 and 2 and pay the same to the plaintiff on behalf of defendants N.1 and 2 in terms of the general conditions of contract; and iii) for further relief of permanent prohibitory injunction to restrain the defendants No.1 and 2 from interfering in the work of the plaintiff or from getting the execution of the work made through themselves or their agents, assignees, labourers, contractors, engineers, architectures etc. in any manner whatsoever during the pendency of the suit as also the subsistence of the Memorandum Of Understanding and further for the relief of rendition of accounts by defendant No.1 and 2 alongwith costs of the suit as also other and further reliefs as are deemed fit and proper in the facts and circumstances of the case. It is, therefore, respectfully prayed that the suit of the plaintiff be decreed and the reliefs as prayed for be given to the plaintiff alongwith such other and further relief as is deemed fit and proper under the facts and circumstances of the case.” 7. A reading of the relief clauses and the cause of action of the earlier suit filed by the defendant at Shimla shows that the defendant is claiming recovery of moneys for the work done and that in the earlier suit injunctions are sought which are in the nature of seeking specific performance of the sub-contract. In the suit at Shimla, this Court is informed, that the pleadings are complete and suit has been set down for trial. 8. A reference to the present suit shows that the suit is for a recovery of Rs.3.25 crores no doubt on account of the sub contract, however, the aspect which differentiates the present suit from the suit filed at Shimla is that the present suit basically seeks recovery of amounts from the defendant under a different head that the defendant is pleaded to have failed to perform its obligations under the contract which resulted in the plaintiff having been caused escalation in costs and expenditure for completion of the project of the hospital in Shimla whereas the suit in Shimla is based on the cause of action of value of work done by the present defendant for the plaintiff and amounts for which work done is claimed in the Shimla suit. 9. 9. It bears note that once the issue with respect to most claims of the plaintiff in the present suit for recovery of Rs.3.25 crores pertains to enhanced costs and escalation claimed by the plaintiff from the defendant on account of defendant failing to perform its contractual obligations, and that is not an issue in the previously instituted suit at Shimla, the decision in the previously instituted suit at Shimla will not operate as res judicata with respect to issues in the present suit pertaining to the claim of the plaintiff for recovery of moneys of the damages on account of higher costs and escalation. 10. Learned counsel for the plaintiff also argues that in the contract between the parties there is a clause by which Courts at Delhi would have jurisdiction and not at Shimla, however, I need not look into this aspect for disposal of the present application under Section 10 CPC, inasmuch as, if that is so, the plaintiff can always seek appropriate reliefs in the High Court at Shimla. 11. In view of the above, since the major part of the present suit claim falls outside the subject matter of the scope of the previously instituted suit at Shimla, and consequently there is no identity of the main claim and the issues of the present suit with the previously instituted suit at Shimla, this application under Section 10 CPC will not lie and is accordingly dismissed. + CS(OS) No.2192/2008 12. Counsel for the plaintiff prays for and is granted six weeks time to file replication. Within six weeks, both the parties will file additional documents in their power and possession and admission/denial thereof be done within six weeks thereafter by filing an affidavit attaching thereto an index of documents of other side which will contain the additional column of endorsement of admission/denial. 13. List before the Joint Registrar for marking of the exhibits to the documents on 4th April, 2016. 14. List in Court for framing of issues on 9th May, 2016.