Delhi High Court
M/S. Mehta Gandhi And Associates vs Shree Pipes Ltd. on 24 January, 1989
Equivalent citations: AIR 1990 DELHI 139
ORDER
1. This is an application filed under S. 10, C.P.C. seeking stay of this suit till final disposal of the earlier filed suit by the defendant which is pending in the Court of District Judge, Bhilwara.
2. I have heard the arguments and have gone through the documents particularly the pleadings of the present suit and the copy of the plaint of the suit pending in the Court of District Judge, Bhilwara.
3. The facts, in brief, are that Shree Pipes Limited (defendant in the present suit, hereinafter to be called "defendant") had entered into an agreement with M/s. Mehta Gandhi & Associates (plaintiff in the present suit) by virtue of which plaintiff was appointed as Consulting Engineer for Asbestos Cement Pressure Pipe Factory building of the defendant where machine foundations, water supply, sanitary works, roads, compound wall, residential building, water tank, safety tank, sock-pits, storm water drains, effluent drains and other side development works etc. were to be executed. The job of the plaintiff was to see that the factory building to be constructed is an appropriate building according to time tested standards standardised for economy and. there were no shortcomings in the site plan and plant and machinery foundations are done according to specifications by the Contractors. The plaintiff was to make report regarding the quality of the work being done at the spot and also to certify the construction being done and was to work efficiently as an Engineering specialist. It was alleged that due to lack of proper supervision and because of non-appointment of any person who had knowledge of the job on the site by the plaintiff and because of lack -of continued appropriate and proper supervision at the time of submission of fourth running bill by the contractor, the defendant-company started Realizing that the plaintiff had no supervision on the construction work and the same was not being looked after properly which resulted in the construction job being done in an unsatisfactory manner. It is pleaded that the plaintiff had been negligent and careless inasmuch as it certified the bogus bills of the contractor and had not checked the contractor when the building was being constructed in an improper manner and no proper directions had been given by the plaintiff and plaintiff also did not check that a double payment of Rs. 2,60,000/ - has been made to the contractor, which lapse was located in the 9th running bill. It was pleaded that from the very beginning the plaintiff used to wrongly certify the works improperly done by the contractor. Due to negligence and carelessness of the plaintiff the defendant-company suffered a heavy loss. It was pleaded that the works had to be completed by the contractor by certain time and thus time could not be extended except due to some force major exceptionally bad weather but plaintiff caused grave loss to the defendant by extending the time of construction without any rhyme or reason. Then it was pleaded that plaintiff was to give a plan of drainage but the plaintiff failed to give the same and also was to give reproducible of all the drawings but plaintiff did not give them and also refused to give cement consumption certificate which plaintiff was bound to supply to the defendant-company. So it is stated that due to all these lapses of the plaintiff the defendant-company terminated the contract of the plaintiff vide letter dated March 29, 1985. The defendant-company filed suit in the District Court, Bhilwara claiming a sum of Rupees 1,00,864/-from the plaintiff and 18% interest over the said amount. It was pleaded that plaintiff was not entitled to 2.30% Commission but was entitled to only 1. 15% Commission inasmuch as the plaintiff was to receive his full fee on drawing estimates, supervision and certification of bills by contractors but the plaintiff did not do these things and thus the plaintiff was entitled to only 50% of his fee but he had received fee at the rate of 2.30% and therefore was liable to refund the over paid fee. Then the plea was taken that defendant-company may have to incur exparte expenditure by appointing a new architect which may be amounting to Rs. 10,000/- which the defendant is entitled to deduct from the fee of the plaintiff.
4. The plaintiff in the present suit has pleaded that plaintiff has been doing his job in accordance with the contract with fullest ability and he was put to excessive work and labour which was beyond the service agreement and plaintiff had to modify a number of their drawings due to certain lapses on the part of the defendant is as much as there was in decision on the part of the defendant on several matters. The progress of the work was also hampered on account of the failure of the defendant to fulfill its contractual obligations with the contractors in providing necessary water supply, electrical power and raw materials in time. It was pleaded that some of the revised drawings were prepared by the plaintiff which were sent to the defendant in June, 1984 and plaintiff was also asked to prepare a large number of alternatives and thus a large number of drawings had to be prepared for the residential buildings, Gate Office, Compound Walls, main gates etc., that these buildings also could not be constructed on account of financial difficulties of the defendants. It was also pleaded that plaintiff had prepared a drawing for over-head tank but defendant had sent a telegram that the said tank should have a capacity of one lac gallons instead of 50,000 gallons. So, according to the plaintiff in this suit the plaintiff had raised bills of which details are given in para 17of the plaint claiming the amount from the defendant for the work done by the plaintiff. It was also pleaded that plaintiff had prepared the final bill dt. April 11, 1985 in the sum of Rs. 2,81,326/- which amount had not been paid by the defendant and thus the present suit has been filed for recovery of the said amount.
5. The question which arises for decision is whether the matters in issue in both the suits are substantially the same or not. In the suit pending in the Court of District Judge, Bhilwara the question which had to be decided is whether the plaintiff had been negligent and careless in performing his job and defendant was right in cancelling the contract and whether the plaintiff had been overpaid his Commission and for deciding that question it is to be established by the defendant in that suit that plaintiff did not properly supervise the construction and had granted extension to the contractor without any basis and that plaintiff did not submit the drawing as mentioned in the plaint and whether the contract of the plaintiff has been rightly terminated. In the present suit in this Court the same question would arise for decision as to whether the contract of the plaintiff has been rightly terminated by the defendant and whether the plaintiff has been negligent in performing his part of the contract. So, it cannot be said that the matters in issue in both the suits are different. The learned counsel for the plaintiff has vehemently argued that the present suit is based on the work already done by the plaintiff which has nothing to do with the issues arising the suit pending in the Court of District Judge, Bhilwara. I do not agree. After all the plaintiff can succeed in this suit only if plaintiff is able to prove that he has been not negligent in performing his part of the contract and has carried out the job in accordance with the contract. If it is shown that plaintiff has committed the breach of the contract then obviously the plaintiff may not be entitled to the amount claimed in this suit. Same questions arises for decision in the suit pending in the Court of District Judge, Bhilwara. In that suit also it is to be proved whether the plaintiff has been negligent in performing his part of the contract and his contract has been rightly rescinded by the defendant. Any decision given in the said suit on these points would obviously operate as resjudicata in the present suit. The learned counsel for the plaintiff has cited Shah Wellace Co. Ltd. v. Bholanath Mandanlal Sherawala, wherein it is held that the expression "the matter in issue" in S. 10 has reference to the entire subject matter is controversy between the parties and a mere identity of some of the issue in both the suits is not sufficient to attract S. 10 and unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is directly and substantially the same in both the suits that is to say that the decision in one suit must non-suit the other suit before it can be said that the matter in both the suits is directly and substantially the same. In Sagar Shamsher Jung Bahadur Rana v. Union of India, it was held that the works "matter in issue" in S. 10 means all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit, the words "matter in issue" do not mean entire subject-matter in issue in the two suits. In C. L. Tandon v. Prem Pal Singh Rawat, it, was observed that it is not the requirement of the law that the matters or the issues involved in the two suits should be totally identical, but they must be substantially the same. It was observed that where on a comparative study of the plaints in the Delhi suit and the Patna suit the issues involved in the two suits were found not substantially the same, the mere fact that one of the major issues is common to both the suits will not by itself serve the applicants purpose. Lastly in Adhish Chandra Sinha v. Hindusthan Gas & Industrial Ltd., it was held that in order to attract S. 10, the subject matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit i.e. in the way the subject-matter of two suits must be identical and merely because one of the questions in issue is the same as in the other suit would not make the subject-matter identical. There is no dispute about the propositions of law laid down in the aforesaid judgments. What has to be seen obviously is whether substantially the matters in issue in both the suits are identical or not to show that decision on such a point may operate as res judicata in the said suit. Examining the facts of the present case I find that the matters in issue in both the suits are substantially the same because the crucial question which would arise for decision in both the suits is whether the, contract of the, plaintiff has been rightly or wrongly terminated and once a finding is given on this crucial question the same would be res judicata in the subsequent suit. Moreover,.it is also to be proved in both the suits whether the, plaintiff has been negligent or not in performing his part of the contract and if the plaintiff is shown to be negligent in performing his part of the contract, obviously such a finding would go to the root of the case in the second suit. Hence, I hold that substantially the questions in issue arising in the two suits are same and therefore it is in the interest of justice that the present suit is stayed till the disposal of the suit pending in the Court of District Judge, Bhilwara. Hence, I allow this application and stay the suit under S. 10, C.P.C. as prayed in the application.
Application allowed.