Sm. Bimal Kumari vs Asoke Mitra And Anr. on 22 January, 1954
This is made clear by the subsequent agreement executed by the appellants 2 to 4. No doubt the respondents contend that they are also entitled to recover damages from the appellants under the agreement but according to them this claim is in addition to and not in substitution of that based upon the promissory notes and the indenture of guarantee. The suit for its enforcement could, therefore, be instituted under Order 37, Rule 2. A mention may be made of a decision in Bimal Kumari v. Asoka Mitra, , upon which reliance was placed on behalf of the appellants in support of the contention that where the plaintiff is entitled to two reliefs but sues for only one the whole suit is liable to be dismissed. Without expressing any view as to the correctness of the decision it is sufficient to say that what the High Court was dealing with there was a suit in which upon the same facts the plaintiff was, according to the High Court, not only entitled to sue but bound to seek two reliefs but sued only for one of them. In the case before us the reliefs claimed in the suit are distinct from the relief claimable on the basis of the agreement between the parties.