JUDGMENT : 1. This is an application under Section 10 of the Code of Civil Procedure, 1908 at the instance of the defendant-Bank seeking stay of the trial of the instant suit being C.S. No.266 of 2004 pending hearing of the previously instituted suit being C.S. No.129 of 1999. Although, voluminous argument and counter argument has been advanced on behalf of both the parties on the application and ultimate grant of stay based on averments made in the application, no substantial assistance could be rendered to decide real question on prayer for stay. 2. Scope here is very limited to adjudicate upon the application for the purpose of arriving at a conclusion as to whether Section 10 of the Code of Civil Procedure, 1908, is attracted in the facts and circumstances disclosed in the application. Before going into the merits of the application vis-à-vis the prayer for stay of trial of the present suit it is necessary to compare the issues involved in the previously instituted suit being C.S. No.129 of 1999 and that of the present suit. 3. So far the present suit is concerned, issues have been framed and the order by which such issues were framed appears at page 71 (Annexure ‘E’) to this application. In the earlier suit being C.S. No.129 of 1999, the plaintiff has taken out an application for amendment, amendment has been allowed in part but is still pending in appeal. Unamended prayer of C.S No.129 of 1999 is as follows : (a) “A declaration that the purported sales of the 4,98,000 shares of BFL Software Limited pledged by the plaintiff and of the other pledged shares mentioned in Annexure ‘I’ were and are void. (b) A decree directing the defendant to unconditionally return the shares pledged with it by the plaintiff in respect of the said overdraft account, particulars whereof are set out in Annexure “D”; in default, a decree be passed against the defendant in favour of the plaintiff for a sum of Rs.48,95,08,757.45/-representing the market price of the said shares on the date of the defendant’s refusal to return the said shares on February 17, 1999. Alternatively an enquiry be made to determine the market value of the said shares or with reference to such other date as to this Hon’ble Court may seem fit and proper; and a decree be passed for the value of the shares as determined by this Hon’ble Court. (c) Declaration that no sum is payable by the plaintiff to the defendant in respect of the said term loan account dated July 27, 1994, and the said overdraft account dated September 19, 1995 and that the defendant is not entitled to a decree for a sum of Rs.8,62,41,973.37/- or any part thereof against the plaintiff in respect of the said two accounts. (d) In the alternative an enquiry be made into and accounts be taken of the dealings and transactions between the parties relating to the term loan account dated July 27, 1994, and overdraft account dated September 19, 1995 for determination of the amount, if any, lawfully payable by the plaintiff to the defendant, and a decree of redemption in favour of the plaintiff be passed against the defendant directing the defendant to return the title deeds mentioned in Annexure ‘B’ and the pledged shares mentioned in Annexure ‘D’ upon/or against payment by the plaintiff of the amount lawfully adjudged to be due to the defendant in respect of the said two accounts. (e) Injunction. (f) Receiver. (g) Costs. (h) Further or other reliefs.” 4. After amendment of the plaint in C.S. No.129 of 1999, the prayers are as follows : (a) “A declaration that the purported sales of the 4,98,000 shares of BFL Software Limited pledged by the Plaintiff and of the other pledged shares mentioned in Annexure ‘I’ were and are void. (b) A decree directing the Defendant to unconditionally return the shares pledged with it by the plaintiff in respect of the said overdraft account, as also accruals thereto, particulars whereof are set out in Annexure ‘I’ hereto as emended; in default, a decree be passed, against the Defendant in favour of the Plaintiff for the sum of Rs.42,00,84,140/- representing the market price of the said shares on the date of the Defendant’s refusal to return the said shares on February 17, 1999 after due adjustment, as set out in Annexure K as amended. Alternatively an enquiry be made to determine the market value of the said shares and accruals thereto with reference to such other date as to this Hon’ble Court may seem fit and proper; and a decree be passed for the value of the shares as determined by this Hon’ble Court. (c) A decree for a sum of Rs.8,73,51,105/- on account of dividends already declared as mentioned in Annexure ‘LC’ in respect of shares as mentioned in Annexure ‘I’ as amended as also further dividends thereto with reference to such other date as determined by this Hon’ble Court. (d) Injunction. (e) Receiver; (f) Interest as claimed in paragraph 22 hereof. (g) Costs (h) Further or other reliefs.” 5. The prayers made in C.S. No.266 of 2004 are as follows : (a) “Decree for Rs.2,23,18,658,58, particulars whereof are set out in a chart annexed hereto and marked with letter ‘I’; (b) Alternatively, the Defendant do render full account of all dividends received in respect of pledged shares and decree for such sum on account of unpaid dividend as may be found upon enquiry and taking of accounts; (c) Interim, interest and interest on judgment; (d) Interest on Rs.2,23,18,658.58 at the rate of 20.88% per annum from the respective date of disbursement of dividend until realization; (e) Receiver; (f) Injunction; (g) Costs; (h) Further or other reliefs.” 6. In order to come to a conclusion as to whether the issues involved in the two suits are substantially same or not, it is required to verify the nature of the prayers made in the two suits. Similarly, it is also necessary to compare the pleadings made in support of the prayers in the respective suits. In paragraph 12 of the 1999 suit, in support of his prayer (a), the plaintiff has pleaded as follows :- “12. Thereafter, in response to an inquiry on behalf of the Plaintiff, the Defendant through its advocate’s letter dated March 31, 1998 informed the Plaintiff that 4,98,000 BFL Software Limited shares had been sold, at a price of Rs.116/- per share. The Defendant reiterated the said allegations regarding the sale of the said shares in its affidavit affirmed on April 6, 1998 filed in opposition to the second interlocutory application filed by the Plaintiff in the said suit. The Defendant reiterated the said allegations regarding the sale of the said shares in its affidavit affirmed on April 6, 1998 filed in opposition to the second interlocutory application filed by the Plaintiff in the said suit. In another affidavit in opposition affirmed by the Defendant Bank on April 9, 1998 in opposition to the first interlocutory application, in the said suit, it was stated by the Defendant that various other shares pledged by the Plaintiff had been sold by the Defendant Bank for a gross sum of Rs.16,15,467.50p, particulars whereof were set out in the annexure ‘D’ of the said affidavit a copy whereof is annexed hereto and marked ‘I’” 7. Although, plaintiff has handed up a copy of the original plaint in C.S. No.129 of 1999, but Annexure ‘I’ on the basis of which prayer (a) has been made, is not available with the copy of the plaint. however, the defendants in the present application have mentioned about the said Annexure ‘I’ which is at Annexure ‘C’ at page 64 of the present application whereas Annexure ‘D’ to the said application at page 68 is the claim of the plaintiff for the dividends on the pledged share in C.S. No.266 of 2004. On a comparison of the said charts, Annexure ‘C’ and ‘D’, it appears that those are totally different. However, in order to further ascertain the nature of the claim in the second suit and to hold that the same is different from that of the first suit, pleadings in respect of prayer in the second suit are required to be considered. Such pleading in paragraph 25 of the plaint is required to be taken into consideration. Paragraph 25 is set out below :- “25. The Defendant was holding the pledged shares as trustee and Banker of the Plaintiff and for the benefit of the Plaintiff and was obliged to collect all dividends declared in the said shares as also bonus shares and to credit the same in the Plaintiff’s account. The Defendant received the dividends as trustee and for the benefit of the Plaintiff. The defendant in breach of its trust and duty as Banker have failed to give credit for the amount of dividend in respect of the said shares to the tune of Rs.2,23,18,658.58 paisa. Particulars whereof are set out in a chart already annexed hereto and marked with letter ‘I’.” 8. The defendant in breach of its trust and duty as Banker have failed to give credit for the amount of dividend in respect of the said shares to the tune of Rs.2,23,18,658.58 paisa. Particulars whereof are set out in a chart already annexed hereto and marked with letter ‘I’.” 8. Learned Counsel appearing for the petitioner/defendant has relied on a judgment in the case of Jai Hind Iron Mart Vs. Tulsiram Bhagwandas, reported in AIR 1953 Bombay 117, to show that an order under Section 10, Civil Procedure Code, is not an order dealing with a procedure, it is an order dealing with jurisdiction of the Court, because under Section 10 whatever order is passed, affects the jurisdiction of the Court. It is mandatory provision and the suit cannot go on if it is stayed and, therefore, the decision under Section 10 must affect the jurisdiction of the Court one way or the other, and every decision which deals with the jurisdiction of the Court is a decision which affects the rights of parties. 9. Learned Counsel has drawn attention of this Court to paragraph 3 of the said decision which also shows that in order to attract the provisions of Section 10 there must be identity of subject-matter; the identify and the field of controversy must be substantially the same which is not the case here. Therefore, what I am proposing to hold in this proceeding is not in conflict with the said decision. It is settled law that if trial of any suit is to be stayed the matter in issue in the said suit and that of the previously instituted suit should be directly and substantially in issue in between the parties or between the parties under whom they or any of them claimed litigation under the same title. 10. Mr. Nirmalya Mohan Bhattacharya appearing for the plaintiff/respondents, has opposed the prayer for stay filed by the defendants/petitioner and raising objection to the grant of an order of stay Mr. Bhattacharya has drawn the attention of the Court to the affidavit-in-opposition filed on 3rd July, 2017. In the opposition he has categorically mentioned that the reliefs sought for in two suits one of 1999 and that of the present suit are totally different. Bhattacharya has drawn the attention of the Court to the affidavit-in-opposition filed on 3rd July, 2017. In the opposition he has categorically mentioned that the reliefs sought for in two suits one of 1999 and that of the present suit are totally different. He submits that the relief sought for in the previously instituted suit is in respect of the specified shares as mentioned in prayer (a) and the details of which as given in Annexure ‘I’ to the plaint were in relation to the particulars of the said shares which were pledged with the bank whereas the prayer in respect of the present suit relates to the dividend accrued on the unsold shares. According to Mr. Bhattacharya, that plain reading of the prayers of the plaints in two suits it is apparent that the nature of relief sought for are different. To give a background he has mentioned in his opposition that – (a) On or about 6th July, 1994, the Bank of Rajasthan Ltd. lent and/or agreed to lend a sum of Rs.1.50 Crores to the plaintiff/respondent on the terms and conditions contained in a “Term Loan” agreement dated 23rd July, 1994 in pursuance whereof term loan account no.265 was opened by Bank of Rajasthan Ltd. in favour of the plaintiff/respondent against security of equitable mortgage of immovable properties. (b) On or about 19th September, 1995, the Bank of Rajasthan Ltd. agreed to grant overdraft facilities to the plaintiff/respondent up to the sanctioned limit of Rs.5 Crores on the terms contained in a written agreement dated 19th September, 1995 executed by the parties. Accordingly, the Bank of Rajasthan opened a cash credit account no.16761 in favour of the plaintiff/respondent. (c) As and by way of security for the cash credit account no.16761 the plaintiff/respondent in September 1995 pledged with the Bank of Rajasthan Ltd. from time to time various shares in several companies and made over to the Bank of Rajasthan Ltd. share certificate along with duly executed blank transfer deeds in respect thereof. (d) The Bank of Rajasthan Ltd. by its letter dated 6th March, 1997 admitted that as on 6th March, 1997 the shares in 38 companies as enumerated in the list of pledged shares enclosed to the said letter remained pledged with the Bank of Rajasthan Limited. (d) The Bank of Rajasthan Ltd. by its letter dated 6th March, 1997 admitted that as on 6th March, 1997 the shares in 38 companies as enumerated in the list of pledged shares enclosed to the said letter remained pledged with the Bank of Rajasthan Limited. (e) Bank of Rajasthan Limited being the pledgee was under obligation to collect all dividends in respect of all the shares. (f) The Bank of Rajasthan Limited as pledgee was obliged to credit the dividends received in respect of the said pledged shares in the said cash credit account no.16761 in favour of the plaintiff. (g) In 1997, Bank of Rajasthan filed an application (being O.A. No.263 of 1997) before the Debt Recovery Tribunal – I, Kolkata, against the plaintiff praying for a certificate for a sum of Rs.8,62,41,973.36 paisa, alleged to be due in respect of the term loan account no.265 and the cash credit account no.16761. (h) The said O.A. No.263 of 1997 was disposed of by a judgment and order dated 19th May, 2003 by the Debts Recovery Tribunal – I, Kolkata, wherein the plaintiff/respondent was granted liberty to initiate appropriate legal proceeding for recovery of the dividends on the pledged shares except a sum of Rs.20,11,337.35 paisa which was allowed by way of set off in the proceeding before the Debts Recovery Tribunal. Appeal was preferred from the said judgment but was dismissed. This Hon’ble High Court was moved under Article 227 of the Constitution but the same was dismissed for default in 2004. (i) On an application for recalling made by the bank by an ex parte order, the same was restored by an order dated 16th January, 2013 and against which an application for recalling has been filed under C.A.N. No.2441 of 2013, which is pending disposal. (j) In view of such development the plaintiff filed the present suit in 2004 before this Hon’ble Court. 11. Mr. Bhattacharya has also drawn the attention of this Court to a judgment and order dated 17th September, 2014 passed by the Hon’ble Apex Court in S.L.P. No.975 – 976 of 2012. The said Special Leave Petition was filed by the Bank of Rajasthan, the defendant. 11. Mr. Bhattacharya has also drawn the attention of this Court to a judgment and order dated 17th September, 2014 passed by the Hon’ble Apex Court in S.L.P. No.975 – 976 of 2012. The said Special Leave Petition was filed by the Bank of Rajasthan, the defendant. The question before the Hon’ble Apex Court was whether having regard to the Recovery of Debts Due to Bank and Financial Institutions Act, 1993, a suit containing a “counter-claim” or claiming a “set off” filed by a debtor can be heard and tried before the Debts Recovery Tribunal (in short, DRT) under the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (in short, RDB Act) or must be tried by a Civil Court alone. The appellant filed an application in C.S. No.129 of 1999 for rejecting the suit on the ground that the High Court did not have jurisdiction since the subject-matter was within the exclusive jurisdiction of DRT. The learned Single Judge allowed that application and directed that the suits be taken off from the file of the High Court. The Division Bench stayed operation of the order of the Hon’ble Single Judge and against that an appeal was carried to the Hon’ble Apex Court. In deciding the said appeal the Hon’ble Apex Court observed – “At this stage, Shri Diwan, learned senior counsel for the appellant prayed for stay of further proceedings in the two suits being Civil Suit No.77 of 1998 and Civil Suit No.129 of 1999, both titled “VCK Shares & Stock Broking Services Ltd. Vs. Bank of Rajasthan” pending before the High Court of Calcutta. The suits are apparently pending since the years 1998 & 1999 and due to various proceedings, which have been taken out by the parties, have virtually remained stationary. We are informed that the suits are at this stage of amendment of the pleadings, which have not been carried out. Suffice it to say that there is virtually no progress in the suits and much progress is not likely to take place for a long time. Moreover, the respondent – plaintiff has made a monetary claim, the satisfaction of which can be appropriately ensured by any order which may be passed in the proceedings. We thus see no reason to direct stay of the suits. The interim relief prayed for the same is rejected.” 12. Moreover, the respondent – plaintiff has made a monetary claim, the satisfaction of which can be appropriately ensured by any order which may be passed in the proceedings. We thus see no reason to direct stay of the suits. The interim relief prayed for the same is rejected.” 12. Although, background of Civil Suit No.77 of 1998 is not available in details but a precise description is available from paragraph 3 of the said judgment of the Hon’ble Apex Court. From the said judgment it appears that appellant/bank filed an application for recovery of debts due to banks and financial institutions under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 before the Debts Recovery Tribunal for a recovery certificate against the respondent for Rs.8,62,41,973.36/-. Though the respondent (plaintiff) entered appearance before the DRT, it filed Civil Suit No.77 of 1998 before this Hon’ble Court against the appellant (plaintiff) claiming a decree for sale of pledged shares and payment of sale proceeds to the respondents. After the appellant sold pledged shares for a total sum of Rs.5,77,68,000/-, the respondent filed Civil Suit No.129 of 1999. 13. Therefore, from the abovementioned judgment of the Hon’ble Apex Court it appears that fact involved in Civil Suit No.77 of 1998 and Civil Suit No.129 of 1999 as then existed, although, identical and apparently similar in nature, but the order of stay was refused. Interim orders as prayed for were also rejected. Therefore, if that be so, at a later stage this Court cannot appreciate the prayer for stay of the subsequent suit of 2004, canvassing an argument that the issue involved in this suit is substantially same in the previously instituted suit of 1999. 14. I have heard the parties at length. The issue involved in this application is also restricted to the consideration whether Section 10 attracts in the given facts and circumstances of the case or not. As I have already pointed out that, although, the parties are same, apparent look of the prayers in the two plaints seems to be identical but they are not substantially the same. The issue involved in this application is also restricted to the consideration whether Section 10 attracts in the given facts and circumstances of the case or not. As I have already pointed out that, although, the parties are same, apparent look of the prayers in the two plaints seems to be identical but they are not substantially the same. Although, the parties are same in the present case, but within the scope of Section 10 Court has to arrive at a satisfaction that trial of any suit can only be stayed when the matter in issue in the said suit is directly and substantially in issue in the previously instituted suit of 1999 between the same parties. As referred by Mr. Bhattacharya and as has been held by the Hon’ble Apex Court in the case of National Institute of Mental Health and Neuroscience Vs. C. Parameshwara, reported in (2005)2 SCC 256 that fundamental test for applicability of Section 10 of the Code of Civil Procedure is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit, this Court holds that Section 10 is not attracted in this case. Section 10 would only apply in cases where the whole of the subject-matter in both the suits is identical and the Hon’ble Apex Court has given stress on the words “the matter in issue is directly and substantially in issue” in contradistinction to the “incidentally or collaterally in issue.” It was held by the Hon’ble Apex Court that in the given suit loss was suffered by appellant due to misappropriation of drugs by respondent while the referred writ petition involved challenge in the award of Labour Court of reinstatement of respondent (dismissed due to establishment of said charge of misappropriation in departmental enquiry held against the respondent). The Hon’ble Apex Court concluded that both the proceedings being entirely distinct, although, between the same parties, and touching the identical nature, but Section 10 has no applicability. Both the proceedings relate to the same employee, in the suit it was for recovery of money from the delinquent employee whereas the writ petition was filed challenging the order of reinstatement of the said delinquent employee by Labour Court pending before the High Court. Both the proceedings relate to the same employee, in the suit it was for recovery of money from the delinquent employee whereas the writ petition was filed challenging the order of reinstatement of the said delinquent employee by Labour Court pending before the High Court. The challenge was made that while the matter was pending in the Hon’ble High Court touching one issue, the suit pending in the Civil Court should be stayed inasmuch as the High Court is superior to Civil Court. The Hon’ble Apex Court has held that it was not desirable to pass any order of stay against the Civil Court from passing decree in the suit as applicability of Section 10 is irrelevant in the given facts and circumstances of this case. 15. The Hon’ble Apex Court has held that 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 would apply only in cases where the whole of the subject-matter in both the suits is identical and otherwise there will be no application of Section 10. Section 10 is quoted below : “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. Explanation : The pendency of a suit in a foreign Court does not preclude the courts in India from trying a suit founded on the same cause of action.” 16. In my view, even if the first suit of 1999 is disposed of the decision of that suit will not operate as res judicata for a decision of the later suit. It has already been pointed out that in the earlier suit amendment was initially allowed in part and the same is pending in appeal and, therefore, the question of amendment is yet to be analyzed by the Court. It has already been pointed out that in the earlier suit amendment was initially allowed in part and the same is pending in appeal and, therefore, the question of amendment is yet to be analyzed by the Court. The issues could not be framed in that suit. Therefore, there is no reason to stall the hearing of the later suit on the ground of pendency of the first suit particularly when the reliefs are different and separate from each other. The attempt is so made to deprive the plaintiff from getting any possible relief from the later suit and the application is liable to be dismissed. 17. In course of hearing it transpired that in the application being G.A. No.2955 of 2009 was filed earlier by the defendant virtuallymaking similar prayer as has been made in the present application being G.A. No.1255 of 2017. The prayers in the said application are set out herein below : (a) “Pass an order staying all further proceedings in, arising out of and/or connected with CS No.266 of 2004 [VCK Shares & Stock Broking Services Limited Vs. Bank of Rajasthan Limited] including interlocutory process till the disposal of CS No.129 of 1999 and APOT No.692 of 2002 and/or subject to their result. (b) Pass an interim order staying all further proceedings in, arising out of and/or connected with CS No.266 of 2004 [VCK Shares & Stock Broking Services Limited Vs. Bank of Rajasthan Limited] including GA No.1534 of 2006 pending therein, till disposal of this application. (c) Pass an ad interim order in terms of prayer b) above. (d) Pass suitable orders as to costs of and/or incidental to this application including legal expenses. (e) Pass such other and/or further order(s)/direction(s) as may seem fit and proper.” Mr. Bhattacharya pointed out before this Court that such an application while kept pending the defendant cannot maintain the second application on the selfsame ground. He draws my attention to paragraph 15 of the earlier application being G.A. No.2955 of 2009 wherein it has been mentioned by the defendant/petitioner – “Thus it is clear that the matter in issue in CS No.266 of 2004 [VCK Shares and Stock Broking Services Limited – Vs. – Bank of Rajasthan Limited] is also directly and substantially in issue in CS No.129 of 1999 [VCK Shares and Stock Broking Services Limited – Vs. – Bank of Rajasthan Limited] is also directly and substantially in issue in CS No.129 of 1999 [VCK Shares and Stock Broking Services Limited – Vs. – Bank of Rajasthan Limited], a previously instituted suit between the parties and the Plaintiff/respondent contends that this Hon’ble Court has jurisdiction to grant the said reliefs claimed.” 18. Although, the said application was filed praying relief under Section 10 of the Code of Civil Procedure, but in view of the disposal of G.A. No.1255 and the observation made therein I hold that G.A. No.2955 of 2009 has become infructuous and the same is dismissed without any costs. 19. On a comparison of the averments made in the plaint in the respective two suits and also the nature of the claim it does not appear that the ingredients of Section 10 of the Code of Civil Procedure, 1908 are fully satisfied. To arrive at such a conclusion I have also verified Annexure ‘I’ to the plaints of both the suits. 20. In the present case, I have already pointed out that the nature of the claims in the two suits are not same and are not substantially in issue. In the first suit the plaintiff has claimed that sale of shares is bad-in-law whereas the reliefs sought for in the second suit are in respect of the dividend on the unsold shares. That being the position, the issues involved in the two suits appear to be distinct and separate, although, they are interlinked in respect of some facts. Therefore, principle underlying Section 10 of Code of Civil Procedure, 1908, cannot be made applicable in the present case. 21. Accordingly, application under Section 10 being G.A. No.1255 of 2017 in C.S. No.266 of 2004 is dismissed. Let this matter appear one week after ‘Christmas Vacation’ under the heading ‘Suit’. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.