1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5463/2009. ( M/s. Suryavanshi Spinning Mills Ltd. -: versus :- M/s. Midland Diesel Services Pvt. Ltd. ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 13, 2010. Heard finally with consent of Shri S.M. Bhangde, learned counsel for petitioner and Shri R.W. Joshi, learned Counsel for respondent. Petitioner claims that Special Civil Suit No.794 of 2005 filed by present respondent against petitioner for recovery of price of spare parts, ought to have been stayed during the pendency of Special Civil Suit No. 252/2005 filed by the petitioner against the present respondent at Hyderabad along with other parties. It is not in dispute that in the year 2000 the petitioner purchased a new engine and one rec-conditioned engine from Cummins Diesel Sales and Services (I) Ltd., Pune. It is the case of the petitioner that, after installation of those engines various problems cropped up and present respondent as authorized agent of M/s. Cummins Diesel Sales and Services, provided services to repair those engines. 2 In this situation ultimately on 29.06.2005 a Civil Suit at Hyderabad was filed against Cummins Diesel Sales and Services India Limited, as defendant nos. 1 and 2, present respondent as defendant no.3 and another service agent M/s. Srinivasa Diesel Corporation as defendant no.4. That suit is for possession of those two engines and liquidated damages of Rs. 20 lakhs. The present respondent received suit summons on 11.08.2005 and then filed the Special Civil Suit No.794/2005 at Nagpur on 12.09.2005 for recovery of amount of Rs. 17 lakhs towards the value of spare parts by it to petitioner from time to time. The petitioners filed their written statement in February, 2006 and specifically raised issue of Section 10 of the Code of Civil Procedure. Accordingly an application was also filed vide Exh.43 in the suit at Nagpur, which came to be rejected on 07.08.2009, after holding that the parties were not same and the cause of action for both the suits are also not identical. In this background by placing reliance upon the judgment reported at 2004 [3] SCC 85 (Chitvalasa Jute Mills .vrs. Jaypee Rewa Cement), particularly paragraph nos. 7 and 9, Shri Bhangde, learned counsel for petitioner argues that, if suit for possession of engine as filed at Hyderabad, is decreed, the decision of suit at Nagpur is not necessary and as suit at Hyderabad is more comprehensive, suit at Nagpur ought to have been stayed. He further states that though the trial Court has found that recording of evidence in Nagpur suit has began, stage of suit at Hyderabad is also for recording evidence since November, 2008. Shri Joshi, learned counsel on the other hand points out that, though in written statement application of 3 Section 10 of C.P.C., was pointed out, lateron plaintiff was cross examined and thereafter, an application under section 10, came to be filed belatedly along with the application for recall of plaintiffs witness for further cross examination and application for production of document. He states that, thus, the petitioner has taken active steps to prosecute the suit at Nagpur further before November, 2008 and in these circumstances, the fact that Suit at Hyderabad is fixed for evidence in November, 2008 is irrelevant. He further states that in suit at Hyderabad no relief is claimed against respondent and prayer there is expressly against M/s. Cummins Limited. He therefore, states that the reason given by the trial Court are neither perverse nor erroneous and no interference is warranted in writ jurisdiction in the matter. Perusal of the judgment on which Shri Bhangde, has placed reliance, clearly shows that their parties were found to be substantially same and the contention of Jaypee Rewa Cement (respondent before Hon'ble Apex Court) that Willard India or Chitivalasa Jute Mills never disputed that Chitivalasa Jute Mills was nothing but a division of Willard India Limited. The cause of action alleged in both the claims refer to same party and were in relation to same transaction i.e. for supply of Jute bags between the period from 07.01.1992 to 31.12.1993 and cause of action alleged by one party to be foundation of relief prayed for and decree sought for in one case was found to be the ground of defence in another case. That cannot be the position here. The petitioner have filed suit at Hyderabad basically against Cummins Diesel Sales and Services India Limited, and there the prayer clause is as under : 4 “ The Plaintiff prays for a judgment and decree against the defendant nos.1 and 2, jointly and severally for :- (a) a direction to the defendants that the defendants do immediately deliver possession of the 1250 KVA Engine bearing model KTA 50-G3, Sl. No. 25263867 and re- conditioned engine bearing no. 25201970 Model KTA 50G3 (1MW) with CDS&S No. 1099469 to the plaintiff in a fully operational state, free of cost and with warranty for 3600 Hrs/ each from the date of re- commissioning of the engines at plant site; (b) liquidated damages of Rs. 20,00,000/- (Rupees Twenty Lakhs ony); (c) Costs; (d) ….....” Thus, in the suit no relief is sought against the present respondent or against other service operator i.e. defendant no.4 in suit at Hyderabad. It is to be noted that, after purchase of machinery/engines from M/s. Cummins Diesel Sales and Services India Limited, when occasion to avail service arose, the present respondent stepped into picture. Thus contract of sales between Cummins Sales and petitioner is independent one and present respondent has nothing to do with that contract. The contract of present respondent is only as service provider and the M/s. Cummins Diesel Sales and Services India Limited, as manufacturers have got no role to play in that contract. I, therefore, find that both the suits are based upon totally different transaction. At the most, if the petitioner is required to pay 5 any amount towards services or spare parts to the present respondent, that may be an additional head of damages for recovery in its suit filed at Hyderabad. Present respondent cannot claim recovery of his amount or adjustment therefor in Hyderabad suit. I, therefore, do not find any case made out warranting interference in writ jurisdiction. Writ Petition is therefore, dismissed with no order as to costs. JUDGE Rgd.