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Anand Silk Store Vs. Shree Ram Silk Manufacturing Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtDelhi High Court
Decided On
Case NumberSuit No. 146 of 1975
Judge
Reported inAIR1976Delhi60; 12(1976)DLT146
ActsCode of Civil Procedure (CPC), 1908 - Sections 10
AppellantAnand Silk Store
RespondentShree Ram Silk Manufacturing Co. and ors.
Advocates: C.K. Daphtary,; S.P. Mahajan,; M.B. Sen,;
Cases ReferredManohar Lal Chopra v. Hiralal
Excerpt:
.....1 and 2 of the civil procedure code, 1908, for restraining the defendant from proceeding with the suit filed in the other court or in the alternative trial of the suit- it was ruled that if the previously instituted suit was vexatious suit or had been instituted in violation of contract, then it could be stayed - further, the prayer could not be granted as suit instituted was not vexatious. - - district hooghly (west bengal). at all material times the sales office of the said business as well as its factory were located at its mill premises in konnagar. that the plaintiff as del credere agent was independently liable to pay to the defendant the said several sums due from the various buyers if the buyers failed to pay the purchase price. the buyers having failed to pay the price of the..........the plaintiff prays that the trial of the said suits be stayed till the disposal of the present suit filed by it against defendant for rendition of accounts. (2) the plaintiff filed the present suit on the allegation that it was appointed to be the sole selling agent by the defendant with effect from 13th april, 1962, to promote the sales of their products in the states of delhi, haryana, punjab, jammu and kashmir and himachal pradesh on terms and conditions stipulated in sub-paras (1) to (12) of para 3 of the plaint; that the plaintiff is alleged to have made huge sales to the various parties on behalf of the defendant for which services huge commision, brokerage/special promotion commission and sales incentive as also bonus etc. became due to it from the defendant ; and on the.....
Judgment:

Prithvi Raj, J.

(1) This is plaintiff's application under Sections 151 and 0.22 read with Order 39, Rules 1 and 2, Code of Civil Procedure praying that ad interim injunction be issued restraining detendant No. 1 (herein called 'the defendant') from proceeding with its money suits filed against the plaintiff and others which suits are stated to be pending in the Court of Shri D. Paul, Second Subordinate Judge, Chinsura, District Hooghly (West Bengal). In the alternative, the plaintiff prays that the trial of the said suits be stayed till the disposal of the present suit filed by it against defendant for rendition of accounts.

(2) The plaintiff filed the present suit on the allegation that it was appointed to be the sole selling agent by the defendant with effect from 13th April, 1962, to promote the sales of their products in the States of Delhi, Haryana, Punjab, Jammu and Kashmir and Himachal Pradesh on terms and conditions stipulated in sub-paras (1) to (12) of para 3 of the plaint; that the plaintiff is alleged to have made huge sales to the various parties on behalf of the defendant for which services huge commision, brokerage/special promotion commission and sales incentive as also bonus etc. became due to it from the defendant ; and on the transactions carried out by the plaintiff a large sum of several lacs of rupees would be found due to it from the defendants; and that the defendant always delayed the settlement of the accounts and ultimately with the object of harassing the plaintiff had filed false and frivolous suits, enumerated in 5 of the application, against the plaintiff in the Court of Second Subordinate Judge, Chinsura (West Bengal) in respect of some transactions put through by the plaintiff as Delhi.

(3) The plaintiff contends that the defendant had brought the above suits in the Court at Chinsura despite the fact that their head office and registered office is situated at 14-Netaji Subash Road, Calcutta and that Chinsura is about 40 miles away from Calcutta City. The defendant is alleged to have chosen the Court at Chinsura with mala fide intention in order to harass the plaintiff to deter it from claiming its legitimate dues because the plaintiff will have to face a lot of difficulty in reaching the Court at Chinsura. The plaintiff avers that the stay of suits in the Court at Chinsura is necessary because the balance of convenience is in favor of the plaintiff inasmuch as the witnesses and the evidence pertaining to the disputes between the plaintiff and the defendant are easily available in Delhi.

(4) The case of the defendant is that Hasting Mill Ltd. with its registered office at No. 14, Netaji Subash Road, Calcutta, carries on various kinds of business in jute, textiles etc. in the State of West Bengal. The textile business of the company consisting of the manufacture and sale of synthetic and art silk fabrics is carried on under the name and stayle of Shree Ram Silk Mfg. Co. at Konnagar. District Hooghly (West Bengal). At all material times the sales office of the said business as well as its factory were located at its Mill premises in Konnagar. The defendant opposed the application contending that between 1967 and 1971 it sold and delivered diverse quantities of synthetic and art silk fabrics of various concerns pursuant to the orders procured by the plaintiff at Delhi which were forwarded to and accepted by the defendant at its office at Konnagar. The goods thereafter were dispatched by rail or road direct to the purchaser under advice to the plaintiff. As a result of such transactions a total sum exceeding Rs. 30 lacs became due and payable to the defendant; that the plaintiff as del credere agent was independently liable to pay to the defendant the said several sums due from the various buyers if the buyers failed to pay the purchase price. The buyers having failed to pay the price of the goods sold to them suits were filed against the concerns for recovery of the balance price of goods sold. In each of the suits the plaintiff was made a co-defendant because as a del credere agent the plaintiff was jointly and severally liable for the payment of the outstanding sums due from the parties where of orders had been booked through the plaintiff. The defendant avers that the plaintiff after repeatedly obtaining extension of time ultimately filed its written statement on 5th February, 1975 in Suit No. 18 of 1974 (Hastings Mills Ltd. v.Anand & Company) pending in the Court at Chinsura while in the other suits the plaintff had repeadly obtained dates for extension of time for filing its written statement.

(5) The present suit is stated to have been filed by way of a counterblast to the claim of the defendant as on or about 7th February, 1975, the defendant made two applications for attachment before judgment in two suits, viz.. Suit No. 11 of 1974 (Hasting Mill Ltd., v. Anand Agencies) and Suit No. 10 of 1974 (Hastings Mill Ltd., v. Shere-E-Punjab Silk Store). The defendant further alleged that no demand either for payment of any commission or for accounts had ever been made by the plaintiff before the filing of the present suit which had been done more than a year after the institution of suits at Chinsura Court.

(6) The plaintiff in its rejoinder to the reply filed by the defendant challenged the competency of Shri Praphulla Chandra Shanti Lal Shah to file affidavit in reply on behalf of the defendant on the ground that prima facie on the face of the reply it is not borne out that he was authorised by any resolution of the defendant to file a counter to the application.

(7) On merits the contentions of the defendant were transversed and the pleas taken in the application were reiterated.

(8) On behalf of the plaintiff it was vehemently contended that the defendant has chosen the Court at Chinsura with mala fide intention in order to harass and demoralise it because of the long distance and difficult journey. It was submitted that the venue for the trial of the disputes between the plaintiff and the defendant would be Delhi because the plaintiff had procured supply orders/contracts for the supply of goods of the defendant from the various parties in the District of Delhi, Haryana, Jammu and Kashmir, Punjab and Himachal Pradesh for which region the plaintiff had acted as sole-selling agent of the defendant and which orders were transmitted to the defendant from Delhi, that the defendant had their bank account with United Bank of India, Chandni Chowk, Delhi, and the plaintiff used to deposit cheques or used to conduct dealings with the defendant through the above bankers at Delhi and that all the witnesses and evidence etc., pertaining to the disputes between the plaintiff and the defendant are easily available in Delhi. In was also contended that delivery of goods was made to the parties at Delhi when R/R was handed over to a party by the plaintiff at Delhi.

(9) It was argued that the mala fide of the defendant in choosing the Court at Chinsura is amply borne out in that notwithstanding the fact that the head office of the defendant was at 14-Netaji Subash Road, Calcutta, they had chosen to file the suits at Chinsura.

(10) The defendant in para 3(a) of its reply to the application avers that at all material times the sales office of its textile business carried on under the name and style of Shree Ram Silk Mfg. Co. as well as its factory were located at its Mill premises at Konnagar. Except for a denial simplicities the plaintiff have not placed any material on the record to contend that the sales office as well as the factory of the defendant was not located at its mill premises in Konnagar. Further, whether the business transctions were concluded between the parties at Delhi or were concluded by acceptance of the orders procured by the plaintiff from the various parties and forwarded to the defendant at its office at Konnagar is a question to be determined on evidence. Besides, the contention that the Chinsura Court has or has no jurisdiction to try the suits filed before it can be taken up by the plaintiff in those suits and it is for that Court to determine the said question.

(11) What has to be seen in the present application is whether there exist compelling circumstances entitling the plaintiff to the grant of the prayer made in this application.

(12) The defendant in para3(d) of its reply to the application had given the details and dates on which the various suits were instituted against the plaintiff and other in Chinsura Court. The plaintiff in its rejoinder has not controverter the dates on which these suits were filed. The suits in Chinsura Courts were instituted between July 16, 1974 and 17th December, 1974, while the present suit was filed in this Court on 17th March, 1975.

(13) The plaintiff in the present suit seeks to restrain the defendant from proceeding with the suits filed by the defendant earlier in point of time in Chinsura Court.

(14) Their Lordships of the Supreme Court in Manohar Lal Chopra v. Hiralal, observed that the question of issuing an order to a party restraining him from proceeding with another suit in a regularly constituted Court of law deserves great care and consideration and that such an order is not to be made unless absolutely necessary for the ends of justice. In that case, it was found that it was the plaintiff of the subsequent suit who sought to restrain the plaintiff of the earlier suit from proceedings with his suit. It was held that that could not be justified on general principle when the previous suit had been instituted in a competent Court. It was further observed that is is open to a plaintiff to choose the forum in which to file his suit.

(15) In the above cited case the appellant filed his suit in Asansol against the respondent who was resident of Indore. A contention was raised that the appellant chose the forum at Asansol merely to harass the respondent. It was observed that the mere fact that Asansol Court is situate at a long distance from the place of residence of the respondent was not sufficient to establish that the suit had been filed in that Court in order to put the respondent to trouble and harassment and to unnecessary expense.

(16) It may bear mention here in the above case the respondent subsequent to the suit of the appellant at Asansol filed a suit at Indore and obtained an order from the Indore Court restraining the appellant to proceed with his suit at Asansol. Their Lordship of the Supreme Court in that connection observed :-

'THE effect of issuing an injunction to the plaintiff of the suit at Asansol, indirectly achieves the object which an injunction to the Court would have done. A court ought not to achieve indirectly what it cannot achieve directly. The plaintiff, who has been restrained, is expected to bring the restraint order to the notice of the Court. If that Court, as expected by the Indore Court, respects the injunction order issued to the appellant and does not proceed with the suit, the injunction order issued to the appellant who is the plaintiff in that suit is as effective an order for arresting the progress of that suit as an injunction order to the Court would have been. If the Court insists on proceeding with the suit, the plaintiff will have either to disobey the restraint order or will run the rish of his suit being dismissed for want of prosecution. Either of these results is a consnquence which an order of the Court should not ordinarilly lead to.'

(17) The Court, however, held that if the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract it can be stayed. Does the present application fulfill the twin coningencies, noted above. It is not the case of the plaintiff that there was a contract between the parties choosing the forum at Delhi for the settlement of the disputes between the parties. All that was urged was that the registered office of the respondent is at Calcutta and that as such normally the defendant should have filed the suits at Calcutta where the plaintiff could not only obtain better and comfortable accomodation but also better legal assistance as well. This submission was sought to be supported from the footnote given under the contract (Annexure C-4) to the effect that the registered office of the seller in Calcutta is to be deemed to be the place where the contracts made, where it is to be performed and where the price of goods are payable. Now this is a contention which is open to the plaintiff to urge before the Chinsura Court to oust its jurisdiction but would not be a ground enabling this Court to restrain the defendant from proceeding with their cases. The mere fact that Chinsura Court is situate at a long distance from Delhi or that most of the witnesses are from Delhi, Punjab, Haryana, Jammu and Kashmir and Himachal Pradesh would not by itself be sufficient to hold that the previous suits filed by the defendant are vexatious when the previout suits have been instituted in a competent court. In this view of the matter I need not consider the argument of the defendant that the present suit has been filed by way of a counter-blast to their applications seeking attachment before judgment of the plaintiff's properties or that their alleged claim in respect of commission etc. is a false claim having not been made at any time before the institution of the suits by the defendant.

(18) For the reasons stated above the application fails and is hereby dismissed, leaving the parties to bear their respective costs.


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