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Messrs. P.T. Anklesaria and Co. Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Suit Nos. 432 of 1967 and 295 of 1970
Judge
Reported in(1974)76BOMLR19
AppellantMessrs. P.T. Anklesaria and Co.
RespondentThe Union of India (Uoi)
DispositionAppeal allowed
Excerpt:
.....1903), section 151.;where there is sufficient unity and similarity in the matter in issue in two suits, one filed by the plaintiff and the other by the defendant against each, other, the court in exercise of its inherent powers under section 151 of the civil procedure code, 1908, ex debito justitiae can order the two suits to be consolidated. all the issues and reliefs in the two suits need not be identical, nor is the consent of the parties necessary.;ganesh ramchandra v. gopal lakshman (1942) 44 bom. l.r. 819 p.p. gupta v. east asiatic co. [1960] a.i.r. all. 184. kali charan dutt v. surja kumar mondal (1912) 17 c.w.n. 526. qazi mahomad fazal v. makhumar mahton [1922] a.i.r. pat. 566. ramavtar prasad v. satdeo lal [1939] a.i.r. pat. 30, and harinarain v. ram asish [1957] a.i.r. pat...........of defendants nos. 1 to 5, the partners of messrs. anklesaria & co., is determined in the said suit. defendants no. 6 also deny that there is now due and payable by the said defendants nos. 1 to 5 to the plaintiffs union of india as alleged the said sum of rs. 7,19,017.85 or any part thereof. one of the issues proposed by defendants no. 6 is 'whether any amount was due to the plaintiffs from defendants nos. 1 to 5 as alleged in para. 8 of the plaint.'5. it would appear from the above facts that defendants nos. 1 to 5 in suit no. 295 of 1970 are the plaintiffs in suit no. 432 of 1967. defendants no. 6 in suit no. 295 of 1970 are interested in establishing firstly that a sum of rs. 18,89,834.19 is not due by messrs. p.t. anklesaria & co. to the union of india. they are further.....
Judgment:

Nain, J.

1. The plaintiffs in suit No. 432 of 1967 apply that the said suit and suit No. 295 of 1970 should be consolidated under the provisions of Section 151, Civil Procedure Code. The application is opposed both by the defendants in suit No. 432 of 1967 as well as by the defendants No. 6 in suit No. 295 of 1970.

2. The plaintiffs in suit No. 432 of 1967 are Messrs P.T. Anklesaria & Co., a partnership firm. The defendants are the Union of India. Under an agreement dated December 28, 1962, the plaintiffs agreed to clear and handle foodgrains, fertilizers, gunny and twine bales imported by the Central Government at the Port of Bombay and to transport such quantities thereof as may be required from docks to the Central Government godowns or rail-heads in Bombay etc. The suit has been filed for recovery of an aggregate sum of Rs. 42,11,688.30. The major claim of the plaintiffs may be divided into two parts. The plaintiffs claim that under the agreement dated December 28, 1962, they had not agreed to handle fertilizers imported by the Central Government in bulk, though they had agreed to handle fertilizers imported in bags. At the request of the Government the plaintiffs handle fertilizers imported in bulk. The plaintiffs contend that the agreed rates for handling bulk-wheat sought to be applied by the Government do not apply to handling fertilizers imported in bulk. The plaintiffs claim reasonable market rates in respect of handling fertilizers in bulk. Another major head of the claim of the plaintiffs is that at the time the agreement dated December 28, 1962 was entered into, a Scheme called the Bombay Unregistered Dock Workers (Regulation of Employment) Scheme, 1957, was in operation in the Port of Bombay with regard to dock workers of the classes specified in the Schedule to the said Scheme, and that the said Scheme did not cover workers employed in clearing foodgrains. The plaintiffs contend that the said Scheme was made applicable to the foodgrains workers with effect from June 17, 1963 by a Notification issued by the Central Government. The plaintiffs contend that consequent on the extension of the said Scheme to dock workers employed in clearing foodgrains, there was a go-slow strike from April 14, 1964 and consequently the costs of handling foodgrains by the plaintiffs went up. The plaintiffs claim from the defendants higher rates for handling foodgrains than were provided for in the agreement.

3. The defendants who are the Union of India have filed a Written Statement and a Set-off in suit No. 432 of 1967. In the Written Statement they deny the claims of the plaintiffs and further contend that the defendants are entitled to recover sums aggregating to Rs. 18,89,834.19 from the plaintiffs. According to the defendants, only a sum of Rs. 9,18,476.21 was due and payable by the defendants to the plaintiffs. The defendants claim to have deducted this amount from their own claim of Rs. 18,89,834.19 against the plaintiffs leaving a sum of Rs. 9;71,357.98 due by the plaintiffs to the defendants. It appears that under the agreement this plaintiffs had deposited cash security in the sum of Rs. 2 lakhs with the defendants. The said security was later substituted by the Government bonds of the same value. Under the terms of the agreement the plaintiffs were to furnish further security in the sum of Rs. 8 lakhs. The said amount was guaranteed by the All India General Insurance Co. Ltd., defendants No. 6 in suit No. 295 of 1970. According to the defendants after appropriating the security deposit of Rs. 2 lakhs there was still due and outstanding a sum of Rs. 7,71,357.98 by the plaintiffs to the defendants and that the said All India General Insurance Co. Ltd., was also liable to the defendants for the said amount. In the Written Statement and Set-off filed by the defendants, the defendants have contended that nothing is due by the defendants to the plaintiffs and on the contrary a sum of Rs. 7,71,357.98 was due by the plaintiffs to the defendants in respect of which they have filed a separate suit.

4. Suit No. 295 of 1970 has been filed by the Union of India for recovery of a sum of Rs. 7,19,017.85 out of the said sum of Rs. 7,71,357.98 after giving defendants No. 1 some further credit. Defendants No. 1 are Messrs. P.T. Anklesaria & Co, who are the plaintiffs in suit No. 432 of 1967. Defendants Nos. 2 to 5 are the partners of the said firm. Defendants No. 6, All India General Insurance Co. Ltd., are the guarantors. In the Written Statement filed in the said suit No. 295 of 1970 by defendants No. 6, the said defendants No. 6 state that defendants No. 1 Messrs. P.T. Anklesaria & Co. have filed a suit against the Union of India, being suit No. 432 of 1967, for a decree in the sum of Rs. 42,11,688.30 and that defendants No. 1 Messrs. P.T. Anklesaria & Co. had rightly repudiated their liability to the plaintiffs the Union of India. Defendants No. 6 further contend that they are not liable to the plaintiffs Union of India until suit No. 432 of 1967 is decided and the liability of defendants Nos. 1 to 5, the partners of Messrs. Anklesaria & Co., is determined in the said suit. Defendants No. 6 also deny that there is now due and payable by the said defendants Nos. 1 to 5 to the plaintiffs Union of India as alleged the said sum of Rs. 7,19,017.85 or any part thereof. One of the issues proposed by defendants No. 6 is 'whether any amount was due to the plaintiffs from defendants Nos. 1 to 5 as alleged in para. 8 of the plaint.'

5. It would appear from the above facts that defendants Nos. 1 to 5 in suit No. 295 of 1970 are the plaintiffs in suit No. 432 of 1967. Defendants No. 6 in suit No. 295 of 1970 are interested in establishing firstly that a sum of Rs. 18,89,834.19 is not due by Messrs. P.T. Anklesaria & Co. to the Union of India. They are further interested in establishing that in any case no amount is due by Messrs. P.T. Anklesaria & Co. to the Union of India whether a sum of Rs. 42,11,688.30 is or is not due by the Union of India to Messrs. P.T. Anklesaria & Co. Most of the issues in ;he two suits are common to the plaintiffs Messrs. P.T. Anklesaria & Co. in fruit No. 432 of 1967 as well as defendants No. 6 in suit No. 295 of 1970. If the two suits are not consolidated, it may be that the questions determined in suit No. 432 of 1967 between the plaintiffs on the one hand and the defendants in that suit on the other hand would have to be gone into again to determine the contentions of defendants No. 6 in the latter suit. It would, therefore, appear to me that this is a fit case where the two suits should be consolidated. This is so far as the merits of the application are concerned.

6. It has been contended by the Union of India and All India General Insurance Co. Ltd. who are opposing the application for consolidation that the two suits cannot and in any ease ought not to be consolidated on the ground that defendants No. 6 in suit No. 295 of 1970 are not interested in the entire subject-matter of suit No. 432 of 1967 and that they are not parties to the earlier suit.

7. There are some obiter observations on this point in the case of Ganesh Ramchandra v. Gopal Lakshman : AIR1943Bom12 , decided by a Division Bench of this Court. In that matter two suits were filed by one Ganesh Ramchandra and a third suit was filed by the family of Laxman, the brother of Ramchandra. Bach suit was for a declaration of the right of the plaintiff to a half share in certain property alleged to belong to the family of which Ramchandra and Laxman were the members. A contention was taken in the suits filed by Ganesh Ramchandra that Order II, Rule 2 had been infringed. In the judgment of Macklin J. in appeal it is observed (p. 827) :.It would have been possible to consolidate the two suits, as any Court has the power to do in its inherent jurisdiction.

8. In the case of P.P. Gupta v. East Asiatic Co. : AIR1960All184 . Dhavan J. observed that the Court had inherent power to consolidate in the interests of justice in appropriate cases different suits between the same parties in which the matter in issue is substantially the same. He observes that suits may be consolidated for a variety of reasons as for example when the dispute arises out of the same transaction between the parties each side accusing' the other of breach of agreement, but not all the issues are identical, nor are the reliefs.

9. In the case of Kali Charan Dutt v. Surja Kumar Mondal (1912) 17 C.W.N. 526, a Division Bench of the Calcutta High Court held that the Court will not consolidate several actions commenced by the same plaintiff against different defendants unless the issues to be tried are precisely similar though an order for consolidation in such a case may be made by consent of parties.

10. In the case of Qazi Mahomad Fazal v. Makhumar Mahton AIR[1922] Pat. 566, a Division Bench of the Patna High Court held that the Court has inherent jurisdiction to consolidate suits without the consent of the parties. In a later case in the same High Court in Ramavtar Prasad v. Satdeo Lal : AIR1939Pat30 . Varma J. of the said High Court hearing a revision application against refusal by the trial Court to consolidate two suits where one of the suits had been filed against the petitioner along with others, held that where there is sufficient unity or similarity in the matter in issue in two suits to warrant their consolidation, it was a fit case in which the High Court could interfere in its revisional jurisdiction. In the case of Harinarain v. Ram Asish : AIR1957Pat124 , another single Judge of the Patna High Court, Raj Kishore Prasad J. held that the Court has inherent power ex debito justitiae to consolidate suits where it is in the ends of justice to do so to avoid needless expense and inconvenience to parties. In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases. The inherent power o Court under Section 151 of the Code of Civil Procedure to consolidate suits is exercisable even without the consent of parties. The convenience of the parties in the conduct of litigation is certainly a relevant consideration and it is perhaps not too much to say that it is the basis of nearly all statutory jurisdiction on the civil side. In that case the defendants in three suits were the same but the plaintiffs were different and some evidence was recorded and documents exhibited in one suit before the consolidation. The learned Judge observed that such evidence and documents would not be binding on the plaintiffs in the other suits as they were not parties to the suit, unless such plaintiffs agreed that such evidence oral and documentary should be read at the hearing of the three suits.

11. On the facts of the present case, it appears to me that there is sufficient unity and similarity in the matter in issue in the two suits. All the issues and reliefs need not be identical, nor is the consent of all the parties necessary. If the two suits are not consolidated, some of the issues determined in suit No. 432 of 1967 may be re-agitated by defendants No. 6 in suit No. 295 of 1970 to show that nothing was due by defendants Nos. 1 to 5 in the suit against them to absolve themselves from their liability. It is, therefore, expeditious and advantageous for all parties, including defendants No. 6 in suit No. 295 of 1970 that the two suits should be tried together. In exercise of the inherent powers of the Court under Section 151, Civil Procedure Code, ex debito justitiae, I order that the two suits be consolidated.


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