Shri Devinder Khanna vs Mehta Cad Cam Systems Pvt. Ltd.
2008 Latest Caselaw 125 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This is an application filed on behalf of the defendant for stay of the present suit on the ground that the issues involved in the present suit are substantially in issue before the previously instituted suit by the defendant in Ahmedabad. The suit in Ahmedabad is numbered as 2377/2004. It was instituted on 27.08.2004, whereas the present suit was instituted on 05.10.2004. The parties are also the same. The admitted position, therefore, is that the suit filed in Ahmedabad is prior in time to the present suit and the parties in both the suits are the same. The question, therefore, is as to whether the issues involved in the present suit are substantially the same or not.

2. The brief facts are that the defendant has alleged that it supplied a printing machine to the plaintiff at an agreed price of Rs 16,64,000/- . It is further alleged by the defendant that as against the said price, only a sum of Rs 9 lacs was paid by the plaintiff to the defendant in two Installments of Rs 7 lacs and Rs 2 lacs. The balance payment had not been made by the plaintiff to the defendant. It is the plaintiff's case that the machine supplied by the defendant was defective and was not at all functional.

3. The suit filed at Ahmedabad was initially filed as a summary suit under Order 37 CPC. Subsequently, since unconditional leave to defend was granted to the plaintiff herein (the defendant before the court at Ahmedabad), the suit stood converted into an ordinary suit. That suit is proceeding before the court at Ahmedabad. The learned Counsel for the defendant submits that the issues that arise before the court at Ahmedabad and the issues that arise in the present suit are substantially the same, if not identical. He submits that the only question that has to be decided is whether the machine supplied by the defendant to the plaintiff was defective or not. In case, it was not defective then the defendant's suit at Ahmedabad is liable to succeed. On the other hand, if the machine was defective then the plaintiff would be entitled to damages. In response, the learned Counsel for the plaintiff submitted that the issues are different and, therefore, the present suit ought not to be stayed. He submitted that in an Order 37 suit which is of a summary nature, the defendant cannot raise a counter claim as has been held by the learned Single Judge of this Court in the case of Punjab & Sind Bank v. S.K. Tulshan : 1990 Rajdhani Law Reporter 556. Consequently, since the defendant had filed the summary suit in Ahmedabad, the plaintiff had no option but to file the present suit at Delhi for recovery of damages. He also submits that the court at Ahmedabad does not have the territorial jurisdiction over the matter and, therefore, the suit at Ahmedabad is liable to be dismissed on this ground.

4. Having considered the arguments advanced by the counsel for the parties, I am of the view that the issues which arise for consideration in the present suit are substantially the same as the issues which would arise for consideration before the court at Ahmedabad. The defendant has filed the suit at Ahmedabad for recovery of money on account of non-payment of the full price of the machine supplied by it to the plaintiff. The plaintiff is defending that suit on the ground that the machine was defective as also on the ground that the court at Ahmedabad does not have the territorial jurisdiction. It was also contended by the learned Counsel for the plaintiff that the present suit is for damages whereas the suit at Ahmedabad is for recovery. In my view, it is not the style and form of the suit which would decide the issue of similarity between the suits. On the contrary, the decision would rest on what is the bone of contention between the parties. The main issue that has to be decided by the Ahmedabad Court is whether the machine supplied by the defendant to the plaintiff was defective. In case it is found that it was defective then the suit at Ahmedabad would have to be dismissed. However, if the finding was that the machine was not defective then the suit at Ahmedabad would succeed and the present suit would have no legs to stand on inasmuch as the finding returned by the court at Ahmedabad would operate as res judicata in the present suit.

5. Therefore, considering the aforesaid circumstances, this application is liable to the allowed. The suit is stayed with liberty to the parties to revive the present suit after the outcome of the suit at Ahmedabad.

This application stands disposed of.