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TMI Blog1980 (4) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... Under the contract the price was fixed at ₹ 3,10,000/- less 5 per cent discount. The advance payment was made to the extent of 30 per cent of the price, that is, ₹ 88,350/-. The order was confirmed in writing on 13th November, 1973, Thereafter, in the month of January, 1974, the plaintiff-company inquired about the progress in the manufacture of the machines. The machines were not manufactured according to the time schedule and could not be delivered to the plaintiff-company up to 31st March, 1974 and hence the defendant firm sought extension of time. The plaintiff-company agreed to the extension of time without -prejudice to its right to claim additional discount for the defendant's failure to deliver the machines on or before the dead-line. it appears that thereafter the defendant firm by its letter dated 15th September, 1974 informed the plaintiff-company that the machines were ready for inspection and despatch and asked for payment of ₹ 3,21,000/- less the advance payment of ₹ 88,3501/- within eight days from the receipt of the invoice. The plaintiffs were also informed that if they failed to make payment and take delivery of the machines within eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken out a Chamber Summons praying that the subsequently instituted suit be stayed under Section 10 of the Code of Civil Procedure. The learned trial Judge rejected that application made at a belated stage on the ground that since he had acceded to the plaintiff's request for consolidating the two suits, there was no question of staying the subsequently instituted suit. These orders passed by the learned trial Judge are the subject-matter of challenge in this Revision Application. 3. Both the suits have been instituted by the opponent herein and they are against the petitioner-firm. They arise out of the very same contract for the manufacture and supply of three roll calender machines by the defendant-firm. The first suit was instituted by the plaintiff-company as it was apprehended that the defendant-firm was likely to divert the three roll calender machines manufactured in pursuance of the contract between the parties to a third party instead of delivering and installing them at the premises of the plaintiff-company as per the contract. The three roll calender machines, it appears, are not easily available in the market and as the plaintiff apprehended that they will have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by the Court will be whether in the facts and circumstances of the case there was a reasonable apprehension of the defendants committing a breach of the contract and if yes, whether the plaintiff-company was entitled to restrain it from so doing. In the subsequently instituted suit the question which will arise for consideration will be whether the defendant has been guilty of non-performance of the contract and if yes, whether the plaintiff-company is entitled to claim damages for failure of the defendant-firm to perform the contract. In the subsequently instituted suit evidence regarding the quantum of damages will also have to be led by the plaintiff-company. 4. Mr. Zaveri, the learned advocate for the defendant-firm, however, invited my attention to the averments made in paragraph 10 of the plaint of Suit No. 2558 of 1974. In the said paragraph the plaintiff-company has averred as under: The plaintiff further states that there exists no standard for ascertaining the actual damage that would be caused by non-performance of the contract by the defendant-firm and that the breach of the contract cannot be adequately relieved by compensation in money. From this aver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 10 of the Code of Civil Procedure are mandatory and once the defendant-firm has brought the case within the four corners of that section, the Court has no alternative but to stay the subsequently instituted suit between same two parties. Section 10 provides that 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 where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed. According to Mr. Zaveri the parties to both the suits are identical. Both the suits arise out of the very same contract whereunder the defendant-firm is required to deliver three roll calendar machines to the plaintiff-company. He, therefore, submitted that the matter in issue in the subsequently instituted suit is directly and substantially in issue in the previously instituted suit and, therefore, it was imperative on the learned trial Judge to stay the subsequently instituted suit. 7. In support of this contention Mr. Zaveri invited my attention to the decision of the Bombay High Court in Trikamdas Jethabhai v. Ji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 10 are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. According to their Lordships, when there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified. 12. It was, therefore, urged by Mr. Zaveri, relying on the aforesaid case law and particularly the last-mentioned decision that since the provisions of Section 10 of the Code are mandatory in character, the Court has no option but to stay the subsequently instituted suit if the case falls within the four corners of that provision. 13. On a plain reading of the contents of Section 10 of the Code, it is crystal clear that the object of the provision is to prevent Courts of concurrent jurisdiction from adjudicating upon parallel litigations between the same parties having the same matter in issue with a view to avoiding conflict of decisions. The policy of the law is that if the matter in issue in the two parallel suits is identical in the interest of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, clearly arises under the contract. Once the contract is established and there is a reasonable apprehension of the contract being broken, the plaintiff is entitled to request the Court to restrain the defendant-firm from committing a breach of the contract. The subsequently instituted suit, however, proceeds on the basis that the defendant has been guilty of non-performance of the contract and, therefore, the plaintiff-company has become entitled to damages. The subsequently instituted suit also arises out of the very same contract, as its non-performance entitles the plaintiff-company to sue the defendant-firm in damages. In the first suit the question of breach of contract does not arise, but it is a suit based on an existing contract, which, it is apprehended, is about to be broken. The subsequent suit arises ex contractu as it proceeds on the basis that the defendant-firm has committed a breach of the contract and has, therefore, entitled the plaintiff-company to sue for damages. Therefore, the field of controversy of the two suits cannot be said to be identical because what the plaintiff will have to prove in the first suit is merely the existence of the contract and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suits arise out of the same agreement and the parties to both the litigations are the same. The learned trial Judge presumably felt that considerable public time and expense would be saved if both the suits are consolidated and the evidence is recorded in one suit. That would also avoid inconvenience to the witnesses figuring in the two suits as they will not be required to re-appear to give evidence in the other matter. The fact that the Court has power to order consolidation of suits where common questions arise between the very same parties is settled in Harinarain Choudhary v. Ram Asish Singh, AIR1957Pat124 and Dasari Suryanarayana v. Dasari Venkata Subbaiah AIR1960AP75 . It is not necessary to multiply decisions on this question as on a plain reading of Section 151 of the Code it is obvious that in the absence of specific provision in the Code on the point, the Court has inherent power to make such orders as such orders be necessary for the ends of justice and to prevent the abuse of the process of the Court. I, therefore, do not see any merit even in the second contention urged before me by Mr. Zaveri. 16. Mr. Trivedi, the learned advocate for the opponent-plaintiff inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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