Jharkhand High Court
Kohinoor Power Pvt. Ltd vs Slipco Construction Pvt. Ltd on 24 April, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(C) No. 4142 of 2015
---
Kohinoor Power Pvt. Ltd., a Company registered under the Companies Act, 1956 having its registered Officer at 16A Everest House No.46C, J.L.Nehru Road, Kolkata, Pine- 700071, Branch Office 326, Ashiyana Trade Centre Adityapur, District-Seraikella-Kharsawan, Pin-831013 (Jharkhand), Plant Side at Vilage-Kuchidih, Kandra Chowk Road, PO and PS-Chowka, District-Seraikella-Kharsawan, Pin-832404 (Jharkhand) through its representative Sri Prasant Bothra. Defendant No.1/.... Petitioner
--Versus--
1.SLIPCO Construction Pvt. Ltd., a company registered under the Indian Companies Act, 1956, having its registered office at Santhikunj, Green Park U/1, Exten. New Delhi-110016, through its Executive Accountant Sri Pankaj Kumar Choubey, son of Sri Griwar Choubey .... Plaintiff/ Respondent
2.M/s Tecpro Infra Project Ltd., a company registered under the Companies Act having its registered office at Tecpro Towers 11-A17, 5th Cross Road, Spicot I.T. Park, Siruseri, Chennai, Pin-603103 (Tamilnadu), through its Managing Director, Sri Arbind Kumar Bisno, son of not known to petitioner.
..... .....Defendant No.2/Performa Respondent
---
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
---
For the Petitioner : Mr. A.K. Das, Advocate For the Respondent no.1: Mr. D.K. Prasad, Advocate Mr. Manoj Kumar-II, Advocate
---
Oral Order 10/ 24.04.2018 The petitioner-Kohinoor Power Pvt. Ltd., defendant no.1 in the suit, is aggrieved of order dated 13.07.2015 passed in Money Suit No.5 of 2013 by which an application under section 10 CPC seeking stay of further proceeding in this suit has been rejected.
2. Contending that real controversy in both the suits pertains to breach of contract by the parties, 2 Mr. A.K. Das, the learned counsel for the petitioner, submits that if trial in Title Suit No.144 of 2013 concludes decision in the said suit would constitute res-judicata to Money Suit No.5 of 2013 and therefore during pendency of Title Suit No.144 of 2013 further proceeding in Money Suit No.5 of 2013 must be stayed.
3. Money Suit No.5 of 2013 was instituted by SLIPCO Construction Pvt. Ltd. for a decree for Rs.1,58,13,180/- with 12% interest against defendant no.1 and a decree for Rs.19,87,555/- with 12% interest against defendant no.2. Another prayer in the suit is to direct defendant no.1 to permit the plaintiff to remove its machinery, equipment etc. and to restrain defendant no.1 from using, damaging, destroying and diminishing value of the machinery. The petitioner- Kohinoor Power Pvt. Ltd. is defendant no.1 and M/s Tecpro Infra Project Ltd. is defendant no.2 in the suit. The plaintiff has pleaded that defendant no.1 awarded the civil work and construction of chimney to defendant no.2, which in turn awarded the work to the plaintiff vide order dated 07.12.2011 (as amended on 16.01.2012). It has asserted that due to dispute between defendant no.1 and defendant no.2 work could not progress and as a result the plaintiff has suffered losses. The plaintiff has averred various instances when it was allegedly stopped by defendant no.1 from carrying the construction work, lastly on 07.09.2013. The 3 cause of action as disclosed in paragraph no.51 of Money Suit No.5 of 2013 reads as under:
"51. That the cause of action for the suit arose on 16.09.2011 when the plaintiff started work of foundation and construction of chimney and thereafter in February, 2013 when the defendant no.1 took over charge of site from defendant no.2 Tecpro and entrusted the work to plaintiff and last payment of Rs.5 lakhs was made on 08.06.2013 and thereafter the cause of action is again arose on 05.10.2013, 06.10.2013 when defendant no.1 threatened the staff plaintiff as mentioned in para 38, 39 and cause of action is still continuing."
4. Title Suit No.144 of 2013 was instituted by the petitioner-Kohinoor Power Pvt. Ltd. for a decree for declaration that it has right and authority to carry with the work in respect of the power plant project at its office as well as the power plant project at site without any hindrance or obstruction of any nature by the defendant- SLIPCO Construction Pvt. Ltd. and the defendant has no right or authority to dismantle scaffolding and/or take away the equipment and materials. A decree for permanent injunction restraining the defendant-company has also been sought in this suit. Cause of action for instituting Title Suit No.144 of 2013 has been disclosed in paragraph nos.21 and 22 which read as under:
"21. That recently on Saturday the 21st September, 2013, unknown persons barged into your petitioner/plaintiff's office as well as site office and threatened with 4 dire consequences the office people present not to interfere with the defendant's work.
22. That in view of the aforesaid wrongful acts and conducts of the defendant/ respondent company by themselves and/or through their men and agents and others acting on their behalf who are bent upon to cause hindrance to the smooth functioning of your petitioner/plaintiff in respect of executing and/or establishing the Power Plant Project, it has become necessary that an order of injunction be passed restraining the defendant/ respondent company, their men, agents, representatives and/or associates and all men acting on their behalf from in any manner causing or creating any disturbance, obstruction or hindrance of any nature to the plaintiff at their said office as well as their Power Plant Project and/or from in any manner threatening or dismantling or taking away the equipments and materials of the plaintiff from the Power Plant Project till disposal of the instant suit, else your petitioner shall be highly prejudiced and shall suffer irreparable loss and injury."
5. Section 10 CPC provides that no Court shall proceed with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. The learned counsel for the petitioner contends that breach of contract alleged by the parties is an issue directly and substantially in issue in both the suits. This contention is bereft of substance. It is not a case in which breach of contract by the same party is in issue in both the suits. In both the suits plaintiffs are different and they have alleged breach of contract by the 5 defendant(s) indicating various acts of commission and omission by them. By now it is well-settled that it is not that only parties in both the suits must be the same and the subject-matter in both the suits also be the same but only when it is found that cause of action for instituting both the suits are the same, section 10 CPC shall be attracted. In "Apsi Jal and Another Vs. Khushroo Rustom Dadyburjor" reported in (2013) 4 SCC 333, three suits for eviction were filed for different cause of actions; the third suit was filed during pendency of the first two eviction suits. When on an application under section 10 CPC the trial court stayed further proceeding in the third eviction suit till disposal of the first two eviction suits and the High Court dismissed the writ petition, the Supreme Court has observed as under, "12. ......... As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different 6 period. Though the ground of eviction in the two suits was similar; the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of section 10 of the Code is not attracted in the facts and circumstances of the case.
6. Title Suit No.144 of 2013 was instituted on 28.09.2013 and Money Suit No.5 of 2013 has been instituted on 12.11.2013. In both the suits except M/s Tecpro Infra Project Ltd., which is not a party in Title Suit No.144 of 2013, parties are the same and to some extent it can also be pleaded that construction of the chimney is one of the issues in both the suits, however, a bare glance at the cause of action for instituting both the suits would make it apparent that both the suits have been instituted pleading different cause of action. Relief sought in both the suits are also different. It appears that prayer for temporary injunction against the defendant in Title Suit No.144 of 2013 was dismissed against which the plaintiff preferred Misc. Appeal No.466 of 2013 and by an order dated 01.10.2013 the trial Judge has directed the parties to maintain status-quo. This fact is also not relevant for deciding applicability of Section 10 CPC. The trial Judge has rightly observed that Money Suit No.5 of 2013 is primarily a suit for damages, whereas Title Suit No.144 of 7 2013 is for injunction. Fundamental test for applicability of Section 10 CPC is, whether a decision in the suit between the same parties and on an issue which is directly and substantially in issue in a subsequent suit would constitute res-judicata to the second suit. Now take the converse case. Assuming that Money Suit No.5 of 2013 is decreed and the plaintiff gets a decree for recovery of Rs.1,58,13,180/- against defendant no.1 and a decree for recovery of Rs.19,87,555/- against defendant no.2, this, in my opinion, would not constitute res-judicata to Title Suit No.144 of 2013 which is primarily a suit for injunction.
7. In the above facts, finding no infirmity in the impugned order dated 13.07.2015, the writ petition is dismissed.
(Shree Chandrashekhar, J.) SI/, A.F.R