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Jugometal Trg Republike Vs. Rungta and Sons (Private) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 70 of 1965
Judge
Reported inAIR1966Cal382,70CWN375
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151
AppellantJugometal Trg Republike
RespondentRungta and Sons (Private) Ltd.
Appellant AdvocateShankar Ghosh and ;B.C. Basak, Advs.
Respondent AdvocateA.C. Mitra and ;S.N. Saraf, Advs.
DispositionAppeal allowed
Cases ReferredJamini Nath Mallik v. Midnapur Zemindary Co.
Excerpt:
- mitter, j.1. this is an appeal from an order for stay of a suit made on march 31st on the defendant's application. the order was subject to a condition that the defendant should pay into court a sum of rs. 3,20,000 being approximately half the amount claimed by the plaintiff within a month from the date of the order during which period the stay was to operate unconditionally. the order however was to expire after eight months from the date of its making and was to stand vacated if the above mentioned sum was not deposited in court within the time limited.2. the appellant claims that in the circumstances of the case there should have been an unconditional order for stay. the facts of the case leading to the making of the application may be summarised as follows: the plaintiff no. 1 (herein.....
Judgment:

Mitter, J.

1. This is an appeal from an order for stay of a suit made on March 31st on the defendant's application. The order was subject to a condition that the defendant should pay into Court a sum of Rs. 3,20,000 being approximately half the amount claimed by the plaintiff within a month from the date of the order during which period the stay was to operate unconditionally. The order however was to expire after eight months from the date of its making and was to stand vacated if the above mentioned sum was not deposited in Court within the time limited.

2. The appellant claims that in the circumstances of the case there should have been an unconditional order for stay. The facts of the case leading to the making of the application may be summarised as follows: The plaintiff No. 1 (herein referred to as the plaintiff) agreed to sell to the defendant 10,000 long tons of iron ore (magnatite) ten per cent more or less depend ing on charter party conditions at buyer's option The price was to be 85 Shillings per dry long ton based on 65 per cent Fe. Content F. O. B Calcutta, trimmed, shipment to take place between February and June, 1957. Payment was to be made under an irrevocable, divisible and transferable letter of credit to be opened by the buyer in favour of the seller with a validity of 60 days following the date of the opening of the credit in English pounds with a first class bank in India. Such fetter of credit was to be opened at the latest by the end of December. 1956 covering 100 per cent of the goods the value being based on 65 per cent Fe content. Provisional payment under the letter of credit was to be made against specified documents, inter alia, a full set of bills of lading, provisional invoice, certificate on the preliminary sampling etc. Final settlement was to be made on the basis of dry weight determined on the discharge of goods at me percentage of Fe. content found out on the basis of exchange of analysis. The defendant (appellant before us) opened a letter of credit on or about February 12, 1957 for pounds 21,250 through United Commercial Bank Ltd., Calcutta, representing thevalue of 5000 tons of iron ore. The plaintiff effected shipment of 3510 long tons of iron ore per SS. Alriadah on or about March 4, 1957, and utilised the letter of credit to the extent of pounds 15,168-2s-2d for 95 per cent of the provisional payment due to it. The plaintiff's case is that thereafter by exchange of cables between the parties it was agreed that the balance of goods under the contract would be shipped per S. S. Edison Marine) chartered by the defendant by July 10, 1957 from the port of Calcutta and that the letter of credit would be amended accordingly. The validity of the letter of credit was according to the plaintiff extended up to July 31, 1957 and its amount was increased to pounds 40,375. S. S. Edison Mariner reached the port of Calcutta on June 13, 1957 and commenced loading on June 20. Between June 25, 1957 and July 16, 1957 the plaintiff loaded 7037 long tons of iron ore into the said steamship at the request of the master of the vessel. There was some delay in the loading of the ship on account of its having been moored midstream in the river Hooghly, oN July 17, 1957 the plaintiff informed the defendant of having shipped the goods and requested the latter to increase the amount of the letter of credit to cover the increased quantity shipped and to extend the shipping date to July 17, On July 20 the defendant sent a cable the purport whereof was that the bank had been instructed to increase the credit and the plaintiff's bankers should send documents by the first plane. The plaintiff gathered from the cable that the defendant was not objecting to the delay in shipment and that the latter had instructed its bunkers to augment the letter of credit. Later the plaintiff learned that the defendant had given instructions contrary to expectations to its own bankers and informed them not to make any payment if the documents bore any date after July 10, 1957. The steamship left the port of Calcutta on or about July 17, 1957 carrying the plaintiff's foods valued at approximately five lakhs of rupees. On coming to learn from its own bankers that the defendant was not minded to pay 05 per cent of the value of the goods in terms of the contract the plaintiff filed a suit in the Admiralty Jurisdiction ot this Court being Suit No. 2 of 1957. The defendants in this suit are the appellant in the present suit and the owners and master and the parties interested in S. S. Edison Mariner., One Madan Gopal Rungta, a director of the plaintiff, was impleaded as a co-plaintiff in that suit as also in the present suit, After filing the admiralty suit the plaintiff had the vessel arrested in the port of Madras on August 10, 1957. The appellant entered 'appearance in the suit and deposited with the Registrar of this Court Rs. 4,50,880 as security for obtaining the release of the vessel whereupon an order was made that the said steamship be released from arrest and that the Registrar of this Court do hold the said sum pending the final disposal of the suit.

2a. That suit eventually came to be tried on evidence by me. A number of issues were framed. These were directed inter alia, to find out whether the plaintiff had shipped 7087 long tons of iron ore in terms of the contract or atthe request of the master of the vessel, whether the plaintiff had incurred additional loading charges by reason of the ship being moored midstream, whether the defendant had agreed to the extension of the letter of credit, whether the Court had jurisdiction to entertain the suit & whether the plaintiff was entitled to the price of the goods as pleaded in the plaint. It was held by me that (a) as the plaintiff did not ship the goods within the contract period it could not claim the price thereof in terms of the contract, (b) the plaintiff was not entitled to any additional charges for loading the goods midstream and (c) the Admiralty Jurisdiction of this Court was not exercisable in the facts and circumstances of this case. Although the suit was dismissed stricture was made on the conduct of the defendant which was described as an attempt to obtain delivery of the goods and take them out of India by a trick. The dismissal of the said suit took place on April 2, 1961 and on April 18, 1961 the plaintiff instituted the present suit. The plaintiff filed an appeal from the said decree which is still pending.

3. Paragraph 16 of the plaint in suit No. 2 of 1957 shows that the plaintiff's total claim was Rs. 4,50,880.80 made up of the sum of Rupees 4,05,880.80 as price of goods shipped and Rs. 45,000 as lorry and boat hire and handling charges (being the additional expenses for loading the goods midstream). Paragraph 14 of the present plaint shows that the total claim is for Rs. 8,65,185.14. This includes (a) 95 per cent price of 7037 tons of iron ore i.e. Rupees 4,05,880.12.9, (b) extra loading charges on the same amounting to Rs. 45,000 (c) balance of 5 per cent price of 7037 tons Rs. 21,210, (d) interest on these three amounts from July 16, 1957 till date of the institution of the suit totalling Rs. 1,47,372. Besides these the claim includes the balance of five per cent price of 3510 tons of iron ore shipped per S. S. Alriadah amounting to Rs 10,607. despatch money earned in connection with the said shipment Rupees 9046 and interest on these two amounts from March 4, 1957 to date of the institution of the suit Rs. 6402 totalling Rs. 26,056.

4. It will therefore be noticed that the main claim of the plaintiff against the defendant in the present suit arises in connection with the shipment of the goods per S. S. Edison Mariner and if the appeal from the judgment in the admiralty suit succeeds the claim left for adjudication in the present suit will be limited to Rupees 26,056.6.5 arising out of the shipment of the goods per S. S. Alriadah. It is in these circumstances that the defendant made an application to this Court on September 17, 1964 for stay of the present suit. This however is not the first attempt of this kind made by the appellant Immediately on receipt of a copy of the plaint in the present suit the defendant made an application for stay of the suit under the provisions of the Arbitration Act, 1940, on the strength of a clause for arbitration contained in the contract On June 2, 1961 ad interim stay was granted which was however vacated at the final hearing of the application on May 31, 1962. An appeal therefrom preferred by the appellant was dismissed by Bench of this Court by an order dated June 16, 1964.

5. According to the defendant the issues that will arise in this suit are virtually the same as those which had come up for determination in Suit No. 2 of 1957. The points taken in the affidavit in opposition are as follows;

(1) the cause of action in the admiralty suit No. 2 of 1957 was not the same as that pleaded in the present suit;

(2) the parties in the first suit were different from those in the present suit in that the owners, master and parties interested in S. S. Edison Mariner impleaded in the admiralty suit are not parties to this suit;

(3) the matter in issue in this suit was not directly and substantially in issue in the former;

(4) as the contention of the appellant in the former suit was that this court had no jurisdiction to try the same the principles laid down in Section 10 of the Code of Civil Procedure are not applicable;

(5) the trial of the present suit during the pendency of the appeal from the decree in the former suit will not involve unnecessary costs and expense;

(6) it will not be necessary to examine a number of witnesses in this suit and the hearing of the suit will not be a protracted one;

(7) the appellant having taken away goods belonging to the plaintiff by a trick has practised a fraud on it and its present attempt is to stifle the plaintiff's claim;

(8) as another application for stay of the suit had been made before the present application is barred by res judicata or principles analogous thereto:

(9) there is no substantial identity between the matters in disputes and the parties to the previous suit and the present suit.

6. The learned Judge held that Section 10 of the Code of Civil Procedure cannot apply because the applicability of that section depended on both the courts being of competent jurisdiction and the petitioner had questioned the jurisdiction of this court in the First suit. He further held that although the court has inherent jurisdiction to stay the suit in a proper case in making such an order it ought to do substantial justice between the parties. In the circumstances the learned Judge made the order already mentioned and the question is whether the same should be maintained or varied.

7. On behalf of the appellant the argument was advanced on two alternative heads. It was contended first that a proper case for stay of the suit had been made out under Section 10 of the Code of Civil Procedure. Alternatively, if Section 10 in terms was found not to apply stay of the suit should be ordered under the inherent jurisdiction of the court under Section 151 of the Code of Civil Procedure. So far as Section 10 is concerned there is no doubt that the 'object . . . ... is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.' For our purpose the conditions for the application of the section are:

(1) the matter in issue in the second suitmust also be directly and substantially in issue in the prior suit;

(2) the prior suit must be pending in the same court or in any court in India having jurisdiction to grant the relief claimed; and lastly;

(3) where the previously instituted suit is pending in any court in India etc., such court is of competent jurisdiction to grant the relief claimed in the subsequent suit.

It was argued that all these conditions obtain in the present case. Both the suits are on the basis of a contract entered into between the plaintiff and the appellant on November 21, 1956. A comparison of the two plaints shows that paragraphs 1, 2, 3, 4, 6, 7, 8, 9 and 10 of the plaint in the present suit are practically verbatim reproduction of paragraphs in the previously instituted suit. The plaintiff had claimed Rs. 4,50,880 for 95 per cent price of 7037 tons of iron ore and the extra loading charges in the first suit as it has done in the second suit. In the first suit an additional plea was introduced to attract the admiralty jurisdiction of this Court by stating that the plaintiff had requested the agent, master of S. S. Edison Mariner that the vessel should not leave the port of Madras until payment in respect of the goods shipped by the plaintiff from Calcutta was made in terms of the contract and there was failure or refusal on the part of the agent and master of the vessel to comply with the said request: it was on the basis of this that the arrest of the steamship and/ or its cargo had been prayed for in addition to a decree for Rs. 4,50,880.00. The main issue in the first suit was the claim tor the price of the goods and the additional loading charges which are also to be found in the second plaint. It was argued that in order to lest the applicability of Section 10 what the court has to find is not an identity of the cause of action but of 'the matter directly and sub-stantially in issue' in the two suits. The matter in issue in the present suit is the price of the goods supplied per S. S. Edison Mariner, the handling charges thereon and the balance of the price in respect of the shipment per S.S. Alriadab together with a claim for despatch money in respect of the said shipment. The claim for interest is only ancillary relief which arises under the Sale of Goods Act or otherwise. Essentially the main matter in issue in the first suit was the claim for 95 P. C. of the price of the goods shipped per S. S. Edison Mariner and the additional loading charges. It is true that the plaintiff sought to recover these two sums to totalling Rupees 1,50,880 under cover of the admiralty jurisdiction of this court on the plea that the master of the vessel had failed of refused to land the goods until the price thereof was paid. There were additional pleas in the first suit under which the master and the owners of the vessel S. S. Edison Mariner were sought to be made liable. It will therefore, appear that even if the plaintiff were to succeed in the pending appeal, the trial of the present suit with regard to the claim for shipment per S. S. Alriadah cannot be avoided, Ignoring the diversity in the parties in the two suits there is in my opinion no substantial identity as regards the matter in issue in the two suits. In Bepin Behary v. Jogendra Chandra, 24 Cal LJ 514: (AIR 1917 Cal 248) it was observed by Mookerjee, J, 'that the matter in issue has reference to the entire subject in controversy.' This dictum was approved by Venkatasubba Rao J. in Kota Sreeramulu v. Kota Sreeramulu, AIR 1922 Mad 304 and by Srinivasa Aiyangar J. in Kuberan Nambudri v. P. K. Koman Nair : AIR1925Mad574 . The same view was taken in Nasiban Bi v. Iqbal Begum, AIR 1935 Lah 816 and Gargi Din Misra v. Debi Charan, AIR 1929 All 805. I see no reason to take a different view.

8. Our attention was drawn to certain observations of Chakravartti, C. J. in Shorab Modi v. Mansata Film Distributors : AIR1957Cal727 to the effect that where the principal matter in issue in the subsequently instituted suit is directly and substantially in issue in a former suit a case for stay under Section 10 arises and that 'complete identity of either the subject matter or the parties is not required.' Briefly speaking the facts in that case were as follows: Modi had filed a suit at Bombay complaining of breaches of the terms of agreement for distributorship of films, his termination of them asking for payment of amounts already accrued due or in the alternative damages, denying the allegations of misrepresentation made by Mansata in their letters. In the Calcutta suit Mansala alleged fraudulent misrepresentation vitiating the agreement and rendering them void and on that basis asked for a refund of the moneys paid and damages. It was in these circumstances that the learned Chief' Justice said that

'if the Calcutta plaintiffs defence in theBombay suit is substantially his plaint in theCalcutta suit and if the Bombay plaintiff's defence in the Calcutta suit is virtually his plaintin the Bombay suit. . . the two suits wouldsubstantially be the same.'

Such is not the case before us. In this case the defence in the second suit will not be the same as in the first suit although both the defences will have to travel over some common ground.

9. The second and third conditions of Section 10 are in my opinion fulfilled in the present case. Both the suits are pending in this court though no doubt in the first suit the admiralty jurisdiction of this Court was resorted to while the ordinary original civil jurisdiction of this court is the one in which the second suit was filed. The court is the same, only its jurisdictions in the two suits air different. The previously instituted suit was pending in this Court and as such there can be no question as to the applicability of the third condition. It was argued on behalf of the respondent that the third condition would not be fulfilled if this court is not competent to try the previously instituted suit. In my opinion, this is not the test which has been laid down in any of the decided cases and is not the one which has to be applied under Section 10.

10. In the result it must be held that no case for stay of the suit under Section 10 of the Code of Civil Procedure has been made out.

11. Although Section 10 of the Code of Civil Procedure is not applicable, in our opinion, there should be a stay under Section 191 of thesame Code and it is clear that the learned trial Judge made an order for stay under this section. This section recognises that the court has very wide powers of regulating the procedure and conduct of litigation in cases where the evil complained of or injury apprehended cannot be avoided by exercise of powers expressly conferred under the different provisions of the Code. As has been said in many cases this power is to act ex debito justitiae and to do real and substantial justice and to do real and substantial Justice for the administration of which alone the court exists. Even if the case is not covered by the express provision of Section 10 of the Code we must see whether an order for stay ought to be made in the interest of justice without curtailing the rights which the litigant has to seek redress in court. In this case if the appeal from the decree in the admiralty suit succeeds the trial of the present suit for the major of the claim made will be avoided. There can be little doubt that if the present suit is allowed to go on now, not only will discovery and inspection have to be made but the actual trial will be spread over days necessitating the examination of a number of witnesses on either side and arguments on various points. This unnecessary expense and hearing of the suit at some length will be avoided if the pending appeal succeeds. The claim with regard to the shipment per S. S. Alriadah is a very minor one and will hardly take up any time of the Court except on the point as to whether any despatch money was earned by the plaintiff as alleged. It is clear from the order of the learned Judge that although he thought that the situation called for an order for stay the same should not be unconditional. No doubt a court may impose terms as a condition for the grant of stay but in this case we do not find any compelling reason for ordering any security to be furnished by the defendant to the extent of one half of the claim of the plaintiff as was done by the learned Judge. The defendant has already furnished security to the extent of Rs. 4,50,000 in the admiralty suit We can find no reason why the defendant should be asked to furnish security in respect of that claim over again. Whether the court will allow any interest on the said sum is a matter for adjudication. The only portion of the plaintiff's claim which is not secured is the balance of 5 per cent price of 7037 tons of iron ore amounting to Rs. 21,000 and the balance of 5 per cent price of iron ore shipped per S. S. Alriadah and despatch money earned amounting to Rs. 19,600. Thus the claim for which no security has been given is no more than Rs. 40,000. Merely because the defendant is a non-resident the court would not be justified in making an order for the furnishing of security. The plaintiff if it is so advised, can always make a necessary application for the purpose. After all, the defendant is only praying that there may not be duplication of a trial and incurring of costs--a prayer which will benefit not only the defendant but also the plaintiff.

12. The delay in making the application has been explained by the appellant. A reference to the proceedings taken prior to the making of the present application shows that the defendanthad made an application for stay under Section 34 of the Arbitration Act and immediately on the conclusion thereof the present application was taken out. It was suggested on behalf of the respondent that the present application could have been combined with the first application and inasmuch as the defendant did not do so the present application ought to be held to be barred under the doctrine of res judicata. I find myself unable to accept this argument. If an application for stay under Section 10 had been combined with an application under Section 34 of the Arbitration Act, obviously the plaintiff would have contended that the application under Section 34 was not maintainable inasmuch as the defendant had taken a step in the proceedings. If the present application could not have been combined with, the first application no question of res judicata can arise.

13. Considering the facts of the cage in the various aspects referred to we think an unconditional order for stay is Indicated. The appeal will therefore be allowed and an order for stay of the trial of the suit No. 587 of 1961 and all proceedings therein pending the determination of the appeal from the decree in Suit No. 2 of 1957 should be made. Costs of this appeal will be costs in the suit. Certified for two counsel.

Bijahesh Mukherji, J.

14. It perhaps assists one's convenience to have a tabular statement of the matters in each of the two suits in the manner set out below:

First SuitSecond SuitAdmiralty Suit No.2 of 1957.Suit No.587 of 1961.[Instituted on July 25. 1957.][Instituted on or about April 18, 1961]

1.95 % of the value of 7037 long tons of iron ore put on board S.S. Edison Mariner between June 25 & July 16, 1957

Rs. 4,05,880.801.95% of the value at 7037 long tons of iron ore put on board S. S. Edison Mariner between June 25 and July 16, 1957

Rs. 4,05,880.12.9 2.Lorry hire, boat hire and handling charges for S. S. Edison Mariner having been moored midstream

Rs. 45,000.00

2.Lorry Hire, boat hire and handling charges for S. S Edison Mariner having been moored midstream

Rs. 45,000.0.0

TotalRs. 4,50,880.80 Rs. 4,50,880.12.9 [Vide paragraph 16 of the plaint.]3.Balance 5% price of 7037 long tons ol iron ore

Rs. 21,201.3.3Rs. 4,72,082 4.Balance 5% price ol 3,510 long tons of iron ore put on board S. S. Ariadah on March 4 1957

Rs. 10,607.7.3 5.Despatch money on ship nent of goods is above

Rs. 9,046.11.2Rs. 19,654.2.5 6.Interest on Rs. 19,654.2.5 from 4-3-57 to 18-4-61 the date of institution of the suit

Rs. 6,402.4.0 7.Interest on Rs. 4,72,082.00 from 16-7-57 to 18-4-61Rs. 1,47,372.9.0Rs. 1,53,774.18.0

Rs.6,45,510.15.5 Vide paragraph 14 of the plaint

15. The matter touching Rs. 4,50,880.80 paise (which is equal to Rs. 4,50,880-12-9 pies) is directly and completely (more than what Section 1.0 requires substantially) in issue in both the suits. (See serials 1 and 2 under the first suit and the second suit in the tabular statement above.) If the interest (serial No. 7 under the second suit in the tabular statement above) and the 'balance 5 per cent pries' (serial No. 3 ibid) are taken into reckoning, as they have to be, they are only ancillary to what goes before: the 'balance 5 per cent price to 95 per cent of the value of 7,037 long tons of iron ore (serial No. 1 ibid) and the interest to matters in serials 1 to 3 added up. Even with these two additions in the second suit' balance 5 per cent price' plus interest--it may be said without doing violence to language and though I that the matter in issue in the second suit is also directly and substantially in issue in the first suit--the accent being on the word substantially. But that can hardly be said, so soon as the 'balance 5 per cent price' of 3,510 long tons of iron are put on board S. S. Ariadah on March 4, 1957, (serial No. 4 ibid) is taken into reckoning, as it has to be also. Despatch money and interest again (serials 5 and 6 ibid) may not be thought much of, ancillary as they are to the principal matter: the 'balance 5 per cent price' of 3,510 long tons of iron ore put on board S. S. Ariadah on March 4, 1957. But the principal matter itself is different, being the amount due for a different period: March 4, 1957, and for shipment on a different vessel: S. S. Ariadah. The other principal matter represents an amount due for shipment on another vessel: S. S. Edison Mariner and for another period too--from June 25 to July16, 1957. In other words, the 'balance 5 per cent price' of 3,510 long tons of iron ore (serial No. 4 ibid) is in issue in the second suit and not at all in issue in the first suit, though the liability under the contract will fall to be decided in both the suits and will thus be one common issue to both. It is therefore, impossible to say that the matters in issue in the second suit are directly and substantially in issue in the first Indeed, how can that be when the matter in issue in the second suit is X plus Y and the matter in issue in the First suit is X only? The subject in controversy between the parties is, therefore, different, as it was, say, in 24 Cal LJ 514: (AIR 1917 Cal 248) where the first suit was for settlement of fair rent and for recovery of arrears of the years 1314-17 B. S,; whereas the second suit was for recovery of arrears of the years 1318-21 B. S. Going by the test of 'the entire subjeci in controversy between the parties' to which the expression in Section 10 'the matter in issue' has reference and this is the test laid down by Sir Asutosh Mookerjee, sitting with Cuming, J. in Benin Behari's case, 24 Cal LJ 514: (AIR 1917 Cal 248) the matters in issue in both suits in the case in hand cannot be said to be identical. True it is that the entire subject in controversy and the matter in issue in both suits need not be identical in every particular. As a proposition of law, it appears to be unexceptionable. To insist on the identity of every particular is to render the word 'substantially' in Section 10 idle. But the word is there to do duty and to receive effect. It is therfeore enough if the matters in issue in both suits are substantially the same. To say so however is not to say that two different matters--X in one suit and Y in another of X plus Y in one suit and only X in the other (AS here)--are substantially thesame--a reductio ad absurdum. Chakravarti, C. J. does not lay down anything different in : AIR1957Cal727 upon which reliance is placed on behalf of the appellant. There the Calcutta suit--a subsequently instituted one--is 'not a suit under the agreements, but a suit de hors them.' The Bombay suit is a suit under the agreements for enforcement of rights conferred thereby, just as the opposite of what the Calcutta suit is: a suit for avoidance of the agreements, vitiated as they have been by false and fraudulent misrepresentation. In this context. Chakravarti, C. J. observes, (Sarkar, J. agreeing:)

''I am unable to see that the matter in issue might not yet be substantially the same, though different reliefs might have been claimed by the two different plaintiffs on the basis of their respective cases.'

To resort to symbols again, the matter directly and substantially in issue in the Bombay suit and the Calcutta suit is X, the Bombay plaintiff claiming under X and the Calcutta plaintiff avoiding X. So the same X shows its head both in Calcutta and Bombay: in the positive form in Bombay and in the negative form in Calcutta. No different matter, such as Y, is to be seen in either place, as it is very much to be seen in the second suit before us. The Mansata case, : AIR1957Cal727 cannot therefore avail the appellant for praying in aid Section 10.

16. So, the very first ingredient of Section 10 that the matter in issue in the second suit is directly and substantially in issue in the first suit is lacking here. No less lacking is another ingredient--that this Court in the exercise of its Admiralty jurisdiction where the first suit pends is not competent to grant the relief in the second suit--a suit triable by this Court in the exercise of its ordinary original civil jurisdiction, as is thecontention on behalf of the respondent. No doubt, the Court, in the ultimate analysis, is one: the High Court, But when this one court sits in different jurisdictions, in fact and at law, comes into being different Court--one each for the jurisdiction it exercises. To take but an extreme case, the High Court in the exercise of its ordinary original civil jurisdiction will not try a man accused of murder in Calcutta proper a trial which pertains to its ordinary original criminal jurisdiction. Similarly, the High Court in the exercise of its ordinary original criminal jurisdiction will not try a suit triable by it in the exercise of its ordinary original civil jurisdiction. Again, the High Court, in the exercise of its admiralty and Vice-Admiralty jurisdiction, conferred on it by Clause 32 of the Letters Patent 1865, will have no jurisdiction to grant relief in a suit where it can grant relief in the exercise of its ordinary original civil jurisdiction. So, the High Court, though one, in the exercise of its ordinary original civil jurisdiction, forms one court, in the exercise of its ordinary original criminal jurisdiction, forms another, and, in the exercise of its Admiralty and Vice-Admiralty jurisdiction, forms still another. Indeed, there are as many courts as jurisdictions this one court, namely, the High Court, exercises. True, there is no authority determining for us the exact point we are now seized of. The authorities we can lay our hands upon go no more than this: the previously instituted suit and the subsequently instituted one must send in courts of concurrent jurisdiction, so that the Court in which the first suit is pending must have jurisdiction to grant the relief claimed in that suit, and what is more, also the relief prayed for in the second suit. Paira Mal and Sons v. Raj Narain and Co., AIR 1919 Lab 3(2) is one such where the second suit pending in the Court of the Subordinate Judge was not stayed under Section 10, as it was not triable by the Court of the Munsiff where the first suit was pending. Nunu Singh v. Muni Nath Singh, : AIR1954Pat314 a Bench Decision by Ramaswami, J. (as his Lordship then was) and Sinha, J., holds as much. There are other similar decisions too. Nevertheless, on first principles, it appears to be cleat that the High Court in the exercise of its Admiralty and Vice-Admiralty jurisdiction does constitute a Court the jurisdiction of which is not concurrent with the jurisdiction of another court come into being by the same High Court functioning in the exercise of its ordinary original civil jurisdiction. That being so, here is still another ground for the appellant not meriting stay under Section 10.

17. The first suit--Admiralty Suit No. 2 of 1957--has since been dismissed by my learned brother. (See (1962) 66 Cal WN 1083). But that litigation has been carried in appeal. The appeal however pends to this day. But a suit within the meaning of Section 10 includes an appeal, just what has been held by Rankin, J. (as his Lordship then was) in Jamini Nath Mallik v. Midnapur Zemindary Co., AIR 1923 Cal 716 and also by Sir Asutosh Mookerjee who observes in Bepin Behari's case, 24 Cal LJ 514: (AIR 1917 Cal 248) supra:

'It is plain that if Section 10 is otherwise applicable, its operation is not excluded by thefact that the previously instituted suit has reached the stage of an appeal' (as here).

But the difficulty of the appellant is that Section 10 is not otherwise applicable for reasons that go before.

18. At the same time, looking to all circumstances here, this seems to be pre-eminently afit case where there should be an unconditionalstay under Section 151 of the Procedure Code.Hence I am for allowing the appeal as my learned brother is--and in the manner proposed byhim.


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