MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2901 OF 2007 IN SUMMARY SUIT NO.2725 OF 2006 Shimnit Kiwalite Industries Ltd....Plaintiff Versus Jagdishchandra Balmukund Bundiwal...Defendant And Ashok s/o.Jagdishchandra Balmukund Bundiwal & Anr. ....Defendants. Mr. S.M. Khaire, for the Plaintiff. Ms. Chandana Salgaocar Radia, for Defendants. CORAM: S.J.VAZIFDAR, J. CORAM: S.J.VAZIFDAR, J. CORAM: S.J.VAZIFDAR, J. DATED: 12TH AUGUST, 2008 DATED: 12TH AUGUST, 2008 DATED: 12TH AUGUST, 2008 P.C.: P.C.: P.C.: . This Notice of Motion is filed under Section 10 of the Code of Civil Procedure for stay of the suit on the ground that the Defendant had filed Suit No.827 of 2004 before the Civil Judge, Senior Division, Nagpur. 2. It was submitted that in respect of the transactions in the present suit the Defendant claimed a refund only as to one component thereof namely sales tax allegedly paid in excess. The present suit seeks recovery of the price of the goods sold and delivered under the said transactions as well. This aspect does not arise in the suit filed by the Defendant. Further, the suit filed by the Defendant alleges that defective goods were supplied under other transactions which are not the subject matter of the present suit. 3. Thus the subject matter of the two suits is different. Even where the transactions are the same, the nature of the two suits are different. 4. The judgment of the Supreme Court in (Gupte (Gupte (Gupte Cardiac Care Centre and Hospital vs. Olympic Pharma Cardiac Care Centre and Hospital vs. Olympic Pharma Cardiac Care Centre and Hospital vs. Olympic Pharma Care (P) Ltd., (2004) 6 S.C.C.756 Care (P) Ltd., (2004) 6 S.C.C.756 Care (P) Ltd., (2004) 6 S.C.C.756 is of no assistance to the Defendants. Paragraph 4 of the judgment was relied upon. In that case it was found that the issues arising for decision would be the same and that only one suit could be decreed. It was further observed that the decree in one suit in favour of the Plaintiff would entail the dismissal of the other suit. This is not the position in the present case. Even assuming that the Defendant obtains a decree for the amounts allegedly paid in excess it would not preclude the Plaintiff from maintaining this suit for the price of the goods itself. 5. In the circumstances the Notice of Motion is dismissed. ......