1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 5109 OF 2008. M/s Shree Chemicals Industries, through Prop. Madhukar Manoharrao Kasar (Bhandekar). .... PETITIONER. VERSUS M/s Maruti Chemicals, through Prop. Jitendra Bhalghat. .... RESPONDENT. ... Shri M.M. Patil (Beedkar), Advocate for Petitioner. Shri S.S. Bora, Advocate for Respondent. ... CORAM : S.S. SHINDE, J. DATE : 27th AUGUST, 2009. PER COURT: 1. This writ petition is filed challenging the order dated 25th March, 2008 below Exh.128 in Special Civil Suit No.39 of 2005. It is further prayer in the petition that the Joint CJSD, Beed may be directed to decide the maintainability of the counter claim of defendant in Special Civil Suit No.39 of 2005. 2. The petitioner is the original plaintiff and respondent herein is original defendant in Special Civil Suit No.39 of 2005 filed before the 2 C.J.S.D., Beed for recovery of Rs.94,800/- and interest thereon and the said suit is pending. 3. It is the case of the plaintiff that he is owner / proprietor of M/s Shree Chemical Industry at Ghosapuri, Taluka Beed where he he manufactures and sells stable bleaching powder. 4. The plaintiff, at the request of the defendant had given authority letter to the defendant as distributor of his product from 1.2.1999 to 31.12.1999 and thereafter for a period from 12.2.2000 to 31.12.2000. The defendant, in spite of accepting to pay Rs.1,24,8000/- towards the bill invoice No.83 dated 27.1.2000, did not repay the amount immediately and on the contrary, issued notice on 15.3.2000 demanding the amount of Rs.1000/- per M.T. Towards product sold by plaintiff directly in the market. Thereafter, cheque of Rs.30,000/- was issued by defendant to plaintiff and the balance amount of Rs.94,800/- was not repaid in spite of the demands of plaintiff. Therefore, after issuing issuing legal notice to the defendant, the aforesaid suit was filed for recovery of Rs.94,800/-. 5. The defendant filed written statement and also filed counter claim for payment of Rs.2,00,000/- by the plaintiff to him along with interest on account of recovery arising out their contract. It was also contended by 3 the defendant that he has already filed R.C.S. No.223 of 2000 against the plaintiff in Civil Court at Ahmednagar for settling the account. 6. The C.J.J.D., Ahmednagar decreed the suit of defendant i.e. R.C.S. No.223/2000. Therefore, an objection was taken by the plaintiff that in view of the said decision, the counter claim filed by the defendant in Special Civil Suit No.39 of 2005 pending before the C.J.S.D., Beed need not be decided by the Civil Court at Beed. 7. The defendant filed application at Exh.128 stating the said circumstances and prayed to pass appropriate regarding trial of counter claim. The petitioner – plaintiff submitted reply to the said application Exh.128 stating therein that in order to avoid contradictory findings by two courts on same point, the counter claim need not be decided by Civil Court, Beed, as the decision is already given by Civil Court at Ahmednagar. 8. It is the case of the petitioner that the CJ.S.D., Beed without appreciating the said facts on record, has allowed the application Exh.128 observing that the counter claim will be decided on merits and plaintiff is directed to cross examine the witnesses in counter claim. Hence, this writ petition is filed. 9. The respondent – defendant filed detail affidavit-in-reply and 4 thereafter, the petitioner has filed rejoinder to the affidavit-in-reply filed by the respondent. 10. The learned Counsel for the petitioner submitted that in view of the judgment and decree in R.C.S. No.223 of 2000 passed by the Civil Court, Ahmednagar, the counter claim in Special Civil Suit No.39 of 2005 does not survive and need not be decided by the Civil Court, Beed in order to avoid conflicting decisions on similar point. The learned Counsel further submitted that merely because an appeal is preferred against the judgment and decree in R.C.S. No.223 of 2000, it does not mean that the findings in the said judgment and decree on material issue would operate as res judicata. 11. The learned Counsel further submitted that the Court below without framing material issues regarding the point of res judicata as well as counter claim filed by the defendant, has hurriedly directed the plaintiff to cross examine the witnesses of the defendant in counter claim, which is unjust and improper. Therefore, the learned Counsel submitted that this writ petition deserves to be allowed. 12. The learned Counsel for the respondent invited my attention to the affidavit-in-reply filed before this Court. On the basis of the said affidavit-in-reply, the learned Counsel for respondent submitted that the respondent – defendant appeared before the trial Court and filed his 5 written statement as well as counter claim. The respondent then filed an application at Exh.86 on 2nd January, 2006 thereby requesting the C.J.S.D., Beed to stay the suit bearing Special Civil Suit No.39/2001 (old), No.39/2005 (new) till hearing of the suit bearing R.C.S. NO.223 of 2000 pending at Ahmednagar. In that application, the present petitioner filed say thereby opposing the said application under Section 10 of the Code of Civil Procedure. The C.J.S.D., Beed, by order dated 17th February, 2006 was pleased to reject the said application of the respondent under Section 10 of the Code of Civil Procedure thereby holding that in R.C.S. No.223 of 2000 the issue involved is as to whether the respondent – defendant is entitled for rendition of account or not and in R.C.S. No.39 of 2005, the issue for decision is whether the plaintiff is entitled for the amount of bill and whether the defendant is entitled for any amount towards loss. The learned Counsel further submitted that the answering respondent then challenged the said order dated 17th February, 2006 before this Court in Writ Petition No.3490 of 2006 and this Court by order dated 28th July, 2006 dismissed the said writ petition holding that the order passed by the C.J.S.D., Beed calls for no interference because the suits are having different issues involved in it for adjudication. Therefore, the learned Counsel submitted that once having been held by this Court in Writ Petition No.3490 of 2006 that the issues in both the suits as well as counter claim filed by respondent herein are completely different, it is not now open for the petitioner to contend that there are similar issues in the suits and counter claim. The learned Counsel, 6 therefore, submitted that this writ petition is devoid of any merits and the same deserves to be dismissed. 13. After hearing the learned Counsel for the petitioner and learned Counsel for respondent, I am of the view that for the reasons recorded by the Court below, the order rejecting application of the petitioner does not call for any interference by this Court. The trial Court, in para 2 of the order dated 25.3.2008 passed on Exh.128, has observed that the present petitioner - plaintiff has not contested the decree passed by the Civil Court at Ahmednagar, rather he has preferred an appeal against the said decision and it means, the issue as to the counter claim has not attained finality and therefore, at this stage, objection raised by the plaintiff not to decide the counter claim is not sustainable. 14. Apart from the above, this Court in earlier round of litigation in Writ Petition No.3490 of 2006 in paragraph 5 of the order dated 28th July, 2006 held thus: “5. In my view, the finding recorded by the learned Civil Judge Senior Division, Beed that the issue in two suits are altogether different, and therefore, rejection of the application for stay of Special Civil Suit No.39 of 2005 cannot be faulted. In Regular Civil Suit No.223 of 2003, the claim of the petitioner is for accounts on the ground that in violation of the agreement, the 7 respondent no.1 and 3 have sold the goods to third parties whereas in Special Civil Suit No.39 of 2005 the respondent No.1 and 3 have claimed the balance amount due under the bill dated 27.10.2000.” 15. In view of the above, I am not inclined to entertain this writ petition. The Writ Petition is dismissed. [ S.S. SHINDE, J ] ... PLK/#