9911796707
TMI Blog2000 (10) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... Overseas Bank for the recovery of ₹ 15,61,000/- as principal on account of the balance price of the goods manufactured by the plaintiff as per order Nos. 484, 485, 486, 487 and interest for June and July 1991 @ 24% per annum amounting to ₹ 59,600/- plus ₹ 12,000/- as price of the cartons purchased for packing goods to be supplied to M/s Shreshth International, D-815, New Friends Colony, New Delhi at Ludhiana and also for mandatory injunction directing the defendant to lift the goods lying with the plaintiff and mandatory injunction directing the defendant to supply CSD forms or in the alternative to pay equivalent Central sales tax to the plaintiff. It was alleged in the plaint that M/s Shreshth International D-1815, New Friends Colony, New Delhi (defendant No. 1) placed four orders upon the plaintiff for the supply of 21,000 pieces of knitwears/fashion items. Tentative dates for the supply of knitwears were mentioned in the respective contracts as 15.4.91 and 30.4.91. These dates were not inflexible but subject to further negotiations. Initially price per piece was fixed at ₹ 85/- and the payment was to be made at Ludhiana. Goods were to be supplied at Lud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced in the LOC. Plaintiff did not know any Kamini Sadh nor there was any understanding for getting the goods inspected from any such person before delivery. There was no agreement to get the goods insured from warehouse to warehouse, when the goods were to be lifted by the defendant at Ludhiana. LOC showed the last date as 5.6.91 while the LOC was delivered to the plaintiff on 7.6.1991 by their bankers UCO Bank, Givil Linics, Ludhiana. There were some cuttings and additions in the LOC. LOC was most likely to be dishonoured. There was a clumsy effort on the part of the defendant to obtain the delivery of the goods against nominal amount of ₹ 4 lacs. This LOC was not negotiable on the face of it and it was for a part of the amount while agreement was to make the entire balance payment at the time of lifting the goods. It is defendant No. 1 who committed breach of the terms of the agreement. Plaintiff has been writing to the defendant time and again. Defendant No. 1 is under an obligation to lift the goods i.e. 18,000 pieces which are lying ready with the plaintiff since the last week of May 1991 against balance payment at Ludhiana. Plaintiffs were expecting that defendant No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said orders. As orders were placed on the defendant against orders received by the plaintiffs from the buyers abroad, time was made essence of the contract. Payment was agreed to be made on delivery of goods after adjusting advance payment. Though there was no agreement between the parties regarding making any advance payment, the plaintiff paid a sum of ₹ 2 lacs to the defendants as advance along with orders vide cheque No. 357365 dated 15.2.91 for ₹ 1 lac and pay order No. 617997 dated 16.2.91 for ₹ 1 lac. These cheques/pay orders were encashed and realised by the defendant. Defendant was under contractual obligation to supply the goods on or before 30.4.91 but defendant failed to do so. On 30.4.91, when the plaintiff approached the defendant to know the fate of the supply, plaintiff was told by the defendant that they were running short of funds and could not fulfil the commitment for supply of goods by the agreed date. At the same time, defendant requested the plaintiff to make further advance payment of ₹ 2 lacs. Plaintiff was not at all willing to extend the delivery date or to make any further advance payment nor the plaintiff was under any contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational. It may be recapitulated that the suit at Delhi was filed in July 1991 while the suit at Ludhiana was filed in August 1991 i.e. later in point of time. 5. Learned counsel for the petitioner (M/s Sehgal Knitwears) submitted that the suit filed at Ludhiana could not have been stayed as all the issues in both the suits are not common and if all the issues in both the suits are not common, trial of both these suits can proceed separately. In support of this submission, he drew my attentions to British Indian Corporation Ltd, v, M/s Rashtraco Freight Carriers where the Hon'ble Supreme Court has observed 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. Claim of the respondent in suit No. 612/94 was for recovery of the alleged dues payable by the appellant-Corporation while the suit of the appellant was for recovery of the goods lawfully entrusted to and unlawfully detained by the respondent. Causes of action being entirely different ana there was no common issue directly or substantially in issue in both the suits, the High Court com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the Legislature in Section 10 that the identity required is a substantial identity. There must be an identity of the subject matter, the field of controversy between the Parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same. 7. Here the defence taken up by M/s Sehgal Knitwears in the suit titled Mrs. Kamini Sadh sole proprietor of M/s Shreshth International is virtually what they have pleaded at Ludhiana in support of their claim for the recovery of ₹ 15,61,000/-against M/s Shreshth International. In para 13 of the written statement, it has been pleaded by M/s Sehgal Knitwears that it is denied that a sum of ₹ 14,39,610/- or any amount is payable to the plaintiff from the defendant. Rather, the defendant has to recover huge am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only in the last week of May 1991 vide their challan and it was only thereafter that the goods could be finished and packed. Defendant had already manufactured 18,000 pieces prior to the fend of May 1991 and thereafter it was conveyed to the plaintiff that they could make the entire balance payment and lift the goods as agreed to. Plaintiff, however, in utter disregard of the agreement, opened a letter of credit in which some conditions were introduced which had not been agreed upon. 8. It is, thus, clear that the suit at Ludhiana filed by the plaintiff is later in point of time vis-a-vis suit filed by the defendant at Delhi. In both the suits the matter in issue is directly and substantially the same and the parties are also the same namely M/s Sehgal Knitwears and M/s Shreshth International. Substratum of the relief claimed in the Ludhiana suit will impinge upon the relief claimed in the Delhi suit. Similarly relief claimed in Delhi suit will impinge upon the relief claimed at Ludhiana suit. In this case, the foundation for the cause of action for M/s Sehgal Knitwears and M/s Shreshth International is substantially the same so far as the substratum of the case of each party ..... X X X X Extracts X X X X X X X X Extracts X X X X
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