TMI Blog1982 (7) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... vered to the carriers. While in the custody of the carriers the goods were destroyed by fire which broke out on April 16, 1974. 3. The Calcutta suit was filed by Swadeshi Sugar Supply Pvt. Ltd. the defendant in the Andhra Suit at a later point of time, inter alia, for refund of the price paid to the plaintiff in the Andhra Suit on account of the very same goods under the same contract. In the Calcutta suit it is contended that the said goods had not been delivered although the same were paid for. It is the case of the plaintiff in the Calcutta Suit that the said goods should have been delivered even prior to the said April 16, 1974 being the date when the said goods were destroyed by fire. One of the questions to be determined in both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant has filed the present suit in Calcutta wherein a further question of damages on account of demurrage has been raised which such further question has not been raised by way of defence in the said Andhra Suit. Mr. Ghosh has referred to the plaint in the Calcutta Suit and particularly paras 30, 31 and 32 thereof whereby the claim of ₹ 53,844.70 p. has been claimed by the plaintiff herein as damages suffered on account of demurrage which it had to pay to Savani Transports Pvt. Ltd. 6. Reading the said averments in paragraph 10 (n) of the said written statement it would appear that the defendant therein specifically reserved its right to institute a separate suit wherein the entire defence was to be set out and the entire rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 10. The Division Bench in Shorab Modi's case (supra) also considered the case under Section 10 where there was an additional party in the subsequent suit. It was observed that such an additional party by itself would not make Section 10 inapplicable. The expression 'same parties' would also mean the parties as between whom the matter substantially in issue has arisen and has to be decided. It was observed there that complete identity of either the subject matter or the parties was not required. 9. Our attention has been drawn to the case of Arun General Industries Ltd. v. Rishabh Manufacturers Pvt. Ltd., , where Division Bench of this Court by following the principles laid down in the Bombay decision in the case Jai Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the previously instituted suit was whether there was a proper performance of the contract by the defendant-respondent to the application for stay of suit and if not to what damages the plaintiff-applicant was entitled. The question involved in the subsequent suit was whe-ther there was wrongful repudiation of contract by the defendant-appellant and, if so, whether the plaintiff-respondent was entitled to any damages. It was held therein that those two questions were separate questions and the disposal of one issue would not resolve the need for adjudication of the other. Accordingly, the matters in issue directly and substantially in both the suits were not the same. The learned Judge, accordingly, refused the application for stay. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in the two suits. There it was also observed that, if a claim based on a contract in one suit, is sought to be avoided and repelled on the ground of fraudulent misrepresentation and a subsequent suit is filed claiming damages on the basis of fraudulent misrepresentation with regard to the same contract the issues nevertheless in the two suits would be substantially the same, even though the basis of the claim in the two suits are altogether different. With respect, I fully agree with the aforesaid observation. When the subject matter in controversy is the same then it is immaterial that a further question, such as, demurrage has been raised in the subsequent suit. That further question too is verily involved within the scope of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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