Karnataka High Court
M/S Isha Distribution House Pvt. Ltd vs M/S Aditya Birla Fashion And Retail Ltd on 23 June, 2025
-1-
NC: 2025:KHC:21785
W.P. No.51297/2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.51297/2019 (GM-CPC)
BETWEEN:
M/S ISHA DISTRIBUTION HOUSE PVT. LTD
NO.6, RUSSELL STREET, P.S.TILJALA
Digitally signed KOLKATTA-700071
by RUPA V REP. BY ITS DIRECTOR
SANGEETHA BUBNA
Location: High
AGED ABOUT 56 YEARS.
Court of
...PETITIONER
karnataka
(BY SRI. SHUBHAM MORE, ADV., FOR
SRI. SAGAR SHEETY, ADV.,)
AND:
M/S. ADITYA BIRLA FASHION AND RETAIL LTD.
ANDHERI (E)
REPT. BY ITS AUTHROISED REPRESENTATIVE
MR.GAURAV KUMAR
AGED ABOUT 31 YEARS.
...RESPONDENT
(BY SRI. VARUN SHARMA, ADV., FOR
SRI. SARAVANA P, ADV.,)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS.
ISSUE A WRIT OF CERTIORARI TO QUASH THE COMMON ORDER
DATED 26.09.2019 PASSED BY THE LXXXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN COM.O.S.NO.752/2017 ON
I.A.NO.8 AND COM.O.S.NO.754/2017 ON I.A.NO.3(ANNEXURE-A) &
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
-2-
NC: 2025:KHC:21785
W.P. No.51297/2019
HC-KAR
ORAL ORDER
This petition is filed seeking following reliefs:
"(a) Call for the records;
(b) Issue a writ of certiorari to quash the
common order dated 26/09/2019 passed by
the LXXXII Addl. City Civil & Sessions Judge,
Bengaluru in Com. O.S.No.752/2017 on
I.A.No.8 and Com. O.S.No.754/2017 on
I.A.No.3 (Annexure-A)
(c) Allow the I.A. No.8 in
Com.O.S.752/2017 (Annexure-H) and
I.A.No.3 in Com.O.S.No.754/2017
(Annexure-J)
(d) Pass such other order or orders as
this Hon'ble Court deems fit in the facts and
circumstances of the case in the interest of
justice and equity."
2. Sri.Shubham More, learned counsel appearing
on behalf of Sri.Sagar Shetty, learned counsel for the
petitioner submits that the petitioner filed CS.No.88/2016
before the High Court of Calcutta against the respondent
seeking certain reliefs. During the pendency of the said
suit, the respondent filed Com.OS.No.752/2017 and
Com.OS.No.754/2017 on the file of LXXXII Additional City
Civil & Sessions Judge, Bengaluru City (CCH-83)
(hereinafter referred to as 'the Commercial Court', for
NC: 2025:KHC:21785
HC-KAR
short), seeking prayer for recovery of money. Admittedly,
the suits filed by the respondent are later in point. Hence,
he filed an application in both the suits, they are
numbered as IA.Nos.3 and 8 under Section 10 of the CPC
seeking to stay the further proceedings in the said suits on
the ground that the suit filed by the petitioner in
CS.No.88/2016 which is pending adjudication before the
Calcutta High Court is earlier in point and issue involved in
the earlier suit and later suit are one and the same, hence,
the same cannot be proceeded. It is further submitted that
the petitioner has also raised a territorial jurisdiction issue
in the said application. However, the trial Court
erroneously rejected both the application. It is submitted
that the prayer sought in the suit filed by the petitioner
which is pending before the Kolkata High Court is a
comprehensive suit and once that is decided, the finding
recorded in the said suit could be in conflict with the
finding in the suits filed by the respondent in Bengaluru.
Hence, it would be appropriate to stay the further
NC: 2025:KHC:21785
HC-KAR
proceedings in Com.O.S.Nos.752/2017 and 754/2017
pending before the Commercial Court, Bengaluru. Hence,
he seeks to set aside the impugned order by allowing
IA.Nos.3 and 8 filed by the petitioner.
3. Per contra, Sri.Varun Sharma, learned counsel
appearing on behalf of Sri.Saravana P., learned counsel for
the respondent supports the impugned order of the trial
Court and submits that the suit filed by the petitioner in
CS.No.88/2016 is for different relief and the suit in
Com.O.S.Nos.752/2017 and 754/2017 filed by the
respondent are for recovery of money based on the
invoices as the respondent supplied a goods to the
petitioner and to recover the said amount, suits have been
filed. The trial Court considered the scope of the suits
pending before it and the scope of the suit filed by the
petitioner before the Calcutta High Court are distinct and
proceeded to reject the applications and the same does
not call for any interference. It is submitted that the
petitioner has also filed an applications under Order 7 Rule
NC: 2025:KHC:21785
HC-KAR
11 & under Order 14 Rule 5 of CPC seeking rejection of the
plaint on the ground of territorial jurisdiction and the
Commercial Court has considered the said applications and
held that the issue with regard to the territorial jurisdiction
can be gone into along with other issues vide order dated
18.08.2018 and 24.07.2018 and the said orders have
attained finality and there is no challenge to the same.
Hence, the petitioner cannot submit on the jurisdiction.
Hence, he seeks to dismiss the petition.
4. I have heard the arguments of the learned
counsel for the petitioner, the learned counsel for the
respondent and meticulously perused the material
available on record. I have given my anxious consideration
to the submissions canvassed on both sides.
5. The undisputed facts between the parties are
that the petitioner herein filed civil suit in CS.No.88/2016
before High Court of Calcutta. The prayer in the said suit
reads as under:
NC: 2025:KHC:21785
HC-KAR
"The plaintiff prays for Leave under clause
12 of the Letters Patent and claim:-
(a) A Decree for Declaration that the
termination of the distributorship agreement
for State of West Bengal is void, illegal and
unlawful;
(b) A Decree of Declaration that the
distributorship agreement for the State of
Bihar between the Plaintiff and the first
Defendant, purportedly terminated by the
letter dated 9th October, 2015, is void, illegal
and unlawful;
(c) A Decree of Declaration that the
Plaintiff has an interest in the property of the
Defendants, being the subject matter of the
exclusive distributorship agreement dated
21st May 2008 extended upto 21st August,
2019 for the State of Bihar between the
Plaintiff and the first Defendant and the
same cannot be terminated to the breach of
such interest of the Plaintiff.
(d) A Decree for Declaration that letter
dated 9th October, 2015, sent by the
Defendant No.1 to the Plaintiff, purportedly
terminating the exclusive distributorship
agreement dated 21st May 2008 extended till
21st August 2019, be delivered up and
cancelled.
NC: 2025:KHC:21785
HC-KAR
(e) A Decree for a sum of
Rs.1,77,75,37,057.13 (Rupees One Hundred
Seventy Seven Crores Seventy Five Lacs
Thirty Seven Thousand Fifty Seven and
Thirteen Paisa Only) as pleaded in Paragraph
78 hereto;
(f) Interim interest and interest upon
judgment at the rate of 18% per annum;
(g) Alternatively, an enquiry into loss
and damages and a decree for such sum as
may be found due and payable by the
defendants jointly and/or severally and in
such proportion against each of the said
defendants as this Hon'ble Court may deem
fit and proper;
(h) Perpetual injunction restraining the
defendant No.1 from selling or distributing
directly or through any C & F agent or
otherwise any goods forming subject matter
of the plaintiff's distributorship agreements,
till such time as the plaintiff is able to
dispose of all the unsold stock more fully
stated in Paragrahp "68" hereto;
(i) Perpetual injunction restraining the
defendant No.1 from appointing any
distributor, C & F agent or engaging any
other person/concern for sale or distribution
of any goods of the type which forms subject
NC: 2025:KHC:21785
HC-KAR
matter of the plaintiff's distributorship
agreements in the State of West Bengal or in
the State of Bihar and especially in the State
of Bihar till such time as the plaintiff is able
to dispose of all the unsold stock more fully
stated in paragraph 68 hereto;
(j) A Decree for Declaration that the
termination of the distributorship agreement
for State of West Bengal is void, illegal and
unlawful;
(k) A decree for a declaration that the
Second Defendant is obliged to adjust their
purported claim arising out of channel
financing facility agreement from the amount
receivable by the plaintiff from the First
Defendant;
(l) A decree for a perpetual injunction
restraining the Second Defendant from
raising any claim against the plaintiff without
adjusting their claim arising out of the
channel financing facility agreement from the
receivable by the plaintiff from the First
Defendant.
(m) Receiver;
(n) Injunction;
(o) Attachment;
(p) Costs;
NC: 2025:KHC:21785
HC-KAR
(q) Such further and/or other relief or
reliefs."
Admittedly, the suit filed by the petitioner in
CS.No.88/2016 is prior than the suits filed by the
respondents before the Commercial Court, Bengaluru. The
aforesaid extracted prayer in the suit filed by the
petitioner clearly indicates that the petitioner seeking
declaration that the termination of the distributorship
agreement with relating to State of West Bengal and State
of Bihar are null and void. It would be useful to extract the
prayer of Com.OS.Nos.752/2017 and 754/2017 for easy
reference.
"a) Pass a decree against the Defendant
Company, for a sum of Rs.1,30,54,811.72
(Rupees One Crore Thirty Lakhs Fifty Four
Thousand Eight Hundred and Eleven and
Paise seventy two), which includes, the
amounts adjusted under the following heads
i.e., IT/Annual Maintenance Charges
("IT/AMC"), Capillery/CRM Loyalty Charges,
Cheque Deposit and Dishonor, Clearance
- 10 -
NC: 2025:KHC:21785
HC-KAR
Entry, Invoices, Over Draft Interest Debit
Note, VPN Charges and Signing up/Architect
Fee, along with pendente lite and future
interest at the rate of 12% per annum
(compounded annually), calculated from the
date of filing of the present suit till the date of
actual realization.
b) Award costs of the suit in favour of
the Plaintiff Company.
c) Any other relief/reliefs which this
Court may deem fit and appropriate under
the circumstances may be passed against the
Defendant Company and in favour of the
Plaintiff, in the interest of justice."
"a) Pass a money decree against the
Defendant Company, for a sum of
Rs.2,76,55,253.33 (Rupees Two Crore
Seventy Six Lakhs Fifty Five Thousand Two
Hundred and Fifty Three and paise Thirty
Three) was due and outstanding, payable by
the Defendant Company, which includes the
amounts adjusted under the following heads
i.e., IT/Annual Maintenance Charges
("IT/AMC"), Invoices, Advertisement credit
note, Bank guarantee encashment,
- 11 -
NC: 2025:KHC:21785
HC-KAR
Capillery/CRM loyalty, Cheque Deposit and
Dishonor, Clearance entry, Expense
reimbursement credit note, Incentive credit
note, Over Draft interest debit note, Price
difference credit note, Sales return credit
note and Shortage credit note along with
pendent elite and future interest at the rate
of 12% per annum (compounded annually),
calculated from the date of filing the present
suit till the date of actual realization.
b) Award costs of the suit in favour of
the Plaintiff.
c) Any other relief/reliefs which this
court may deem fit and appropriate under
the circumstances may be passed against
the Defendant Company and in favour of the
Plaintiff, in the interest of justice."
6. The plaint averments and the prayer in the
aforesaid plaints indicate that the respondent has filed the
aforesaid two commercial suits against the petitioner
company for a sum claimed in the prayer based on the
invoices referred in the plaint. Admittedly, the aforesaid
two suits filed by the respondent are later in point.
However, the prayers sought in the subsequent suit filed
- 12 -
NC: 2025:KHC:21785
HC-KAR
by the respondent referred supra are distinct and
different. In a suit filed by the petitioner, relief is for
declaration that the termination of distributorship
agreement dated 11.07.2007 and 21.05.2008 are sought
to be declared as null and void. However, the suits filed by
the respondent in Com.O.S.No.752/2017 and 754/2017
are for recovery of money based on invoices.
7. The Hon'ble Supreme Court in the case of
National Institute of Mental Health & Neuro Sciences
v C. Parameshwara1 at paragraph No.8 held as under:
"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
AIR 2005 SC 242
- 13 -
NC: 2025:KHC:21785
HC-KAR
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."
It is clear from the aforesaid enunciation of law by
the Hon'ble Supreme Court that the object of Section 10 is
to prevent parallel trials, which could lead to conflicting
findings. However, the same is only applicable if the
matter of the issues involved in the two suits are directly
and substantially the same. In the case on hand, the Trial
Court has rightly recorded a finding that considering the
nature of relief sought and the pleading on record, the
matter in the issue of the suit filed by the petitioners is not
directly and substantially involved in the matter of the suit
filed by the defendant. Hence, I do not find any error in
- 14 -
NC: 2025:KHC:21785
HC-KAR
the finding recorded by the trial Court with regard to the
rejection of the applications filed by the petitioner under
Section 10 of the CPC. The learned counsel for the
respondent is right in his submission that the Commercial
Court, Bengaluru in the aforesaid suits vide order dated
24.07.2018 and 18.08.2018 has considered the
applications filed by the petitioner under Order 7 Rule 11
and under Order 14 Rule 5 of CPC and recorded the finding
that issue with regard to the territorial jurisdiction can be
gone into along with other issues when the suits are
decided finally, and the said order has attained finality.
Hence, on this count also, the petition is required to fail.
The trial Court considering the rival submissions and the
material on record has rightly come to conclusion that the
prayer sought in the suits filed by the respondent pending
before the Commercial Court, Bengaluru and the suit of
the petitioner pending before the High Court of Calcutta
are substantially distinct and rejected the applications. I
do not find any error or perversity in the aforesaid finding
- 15 -
NC: 2025:KHC:21785
HC-KAR
of the Commercial Court calling for interference in the
impugned order. For the aforementioned reason I proceed
to pass the following:
ORDER
i) The writ petition is devoid of merits.
Accordingly, the same is rejected.
ii) The suit is of the year 2017, hence,
the trial Court is requested to consider the
disposal of the same on priority basis.
iii) In view of the rejection of the
petition, IA.No.1/2023 does not survive for
consideration.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK
