Monday, 1 July 2019

Whether court can stay suit proceeding as per S 151 of CPC?

Thus, section 10 of the Code bars the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. Thus, section 10 of the Code specifically provides for the contingencies under which a subsequent suit can be stayed, viz., (i) where the issue is also directly and substantially in issue in a previously instituted suit; (ii) such suit is between the same parties, or between parties under whom they or any of them claim litigating under the same title; (iii) where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. There is no other provision in the Code which provides for stay of the suit by the court where the suit is instituted. Section 10 of the Code clearly exhausts the contingencies in which such power can be exercised. Therefore, if powers under section 151 of the Code are exercised, the same would clearly be in conflict with what had been expressly provided in section 10 of the Code and against the intentions of the legislature. Considering the scheme of the Code, it is apparent that the legislature intended the provisions of section 10 to be exhaustive insofar as the prohibition against proceeding with the subsequent suit is concerned. Therefore, the exercise of inherent powers under section 151 of the Code to stay the proceedings in contingencies not contemplated under section 10 of the Code would be against the legislative intention and against the interests of justice. Under the circumstances, the petitioner is not entitled to relief claimed in the application either under section 10 or section 151 of the Code.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 20580 of 2018

Decided On: 21.01.2019

HDFC Bank Limited Vs.  Ashima Limited

Hon'ble Judges/Coram:
Harsha Devani and Dr. A.P. Thaker, JJ.

Citation: AIR 2019 Guj 64


1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner (original defendant) has called in question the order dated 27.11.2018 passed by the Commercial Court, Ahmedabad below Exhibit 166 filed by the petitioner under section 10 read with section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") in Commercial Civil Suit No. 154 of 2016.

2. The respondent (original plaintiff) instituted a suit being Civil Suit No. 1360 of 2003 against Bank of Bahrain & Kuwait (also referred to as BBK). Subsequently, the respondent-plaintiff instituted Civil Suit No. 3213 of 2004 against the petitioner-defendant, which in turn came to be transferred to the Commercial Court, at Ahmedabad and re-numbered as Commercial Civil Suit No. 154 of 2016. By the impugned order dated 27.11.2018, the application below Exhibit 166 came to be dismissed with costs of Rs. 50,000/-. Being aggrieved, the petitioner has filed the present petition seeking the relief noted hereinabove.

3. Mr. Mihir Thakore, Senior Advocate, learned counsel with Mr. Anip Gandhi, learned advocate for the petitioner, submitted that the subsequent suit being Commercial Civil Suit No. 154 of 2016 is closely connected with the first suit being Civil Suit No. 1360 of 2003. According to the learned counsel, even if section 10 of the Code may not be applicable to the facts of the present case; in exercise of inherent powers under section 151 of the Code, stay can still be granted. It was submitted that the present case squarely falls within the ambit of section 151 of the Code and therefore, the Commercial Court was not justified in rejecting the application filed by the petitioner.

3.1 Referring to the application Exhibit 166, it was pointed out that the same has been made under section 10 read with section 151 of the Code and that the powers under section 151 of the Code being wide, the court had ample powers to stay the proceedings of the subsequent suit till the first suit came to be decided.

3.2 In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal, MANU/SC/0056/1961 : AIR 1962 SC 527, wherein the court held that there is no such expression in section 94 of the Code, which expressly prohibits the issue of a temporary injunction in the circumstances not covered in Order 37 or by any rules made under the Code. It is well settled that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently providing the procedure for them. It was submitted that therefore, even if the present case does not fall within the contingencies provided under section 10 of the Code, the court is not barred from granting relief in exercise of inherent powers under section 151 of the Code.

3.3 Reliance was also placed upon the decision of the Supreme Court in the case of Arjun Singh v. Mohindra Kumar, MANU/SC/0013/1963 : AIR 1964 SC 993, wherein the court held that the inherent power of the court cannot override the express provisions of law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.

3.4 Reliance was also placed upon the decision of the Supreme Court in the case of Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava, MANU/SC/0263/1966 : AIR 1966 SC 1899, for the proposition that there is nothing in Order XXIX of the Code, which, expressly or by necessary implication, precludes the exercise of the inherent power of the court under section 151 thereof.

3.5 The decision of the Supreme Court in the case of Shipping Corporation of India Ltd. v. Machado Bros., MANU/SC/0276/2004 : AIR 2004 SC 2093, was cited for the proposition that if there is no specific provision which prohibits the grant of relief sought in an application filed under section 151 of the Code, the courts have all the necessary powers under section 151 of the Code to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under section 151 of the Code first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition, then the court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. It was submitted that while section 10 of the Code puts an embargo on the court from proceeding in the circumstances spelt out in section 10, it does not say that the court cannot grant stay in other circumstances. It was contended that section 10 of the Code does not bar the application of the petitioner as it would still lie under section 151 of the Code.

3.6 Lastly, it was urged that the application cannot be said to be so frivolous so as to impose Rs. 50,000/- costs as has been done by the Commercial Court.

4. Vehemently opposing the petition, Mr. Mihir Joshi, Senior Advocate, learned counsel with Mr. Amar Bhatt, learned advocate for the respondent, invited the attention of the court to the contents of the application (Exhibit 166) filed by the petitioner. It was submitted that from the averments made in the application, it is evident that the application is primarily under section 10 of the Code. Referring to the plaint of Civil Suit No. 1360 of 2003, it was pointed out that the same is a suit for permanent injunction. Referring to the averments made in the plaint, it was submitted that the same has been instituted in the context of the injunction granted under the Bombay Relief Undertakings (Special Provisions) Act, 1958 (hereinafter referred to as "the BRU Act"). Reference was made to the plaint of Civil Suit No. 3213 of 2004, which was subsequently converted into Commercial Civil Suit No. 154 of 2016, to submit that the cause of action for filing the subsequent suit and the relief claimed therein are totally different from the first suit and therefore, none of the parameters of section 10 of the Code are satisfied. It was submitted that the matter in issue in the first suit is not directly and substantially in issue in the subsequent suit. The suits are not between the same parties. The first suit has been filed in the City Civil Court, at Ahmedabad, whereas the subsequent suit is pending before the Commercial Court, which are not the courts of concurrent jurisdiction and, therefore, none of the requirements of section 10 of the Code are satisfied. It was submitted that the application under section 10 read with section 151 of the Code has been filed at a much belated stage after the recording of the evidence was over and at the stage of oral submissions inasmuch as the application has been made on 23.10.2018 in respect of a suit instituted in the year 2004. It was contended that if the provisions of section 10 of the Code do not apply, then there is no flaw in the impugned order and therefore, the imposition of costs is wholly justified.

4.1 Reference was made to the decision of the Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal (supra) for the proposition that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in section 151, itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice. It was submitted that section 10 of the Code contemplates staying the proceedings of the subsequent suit only in particular situations provided therein and none other, and, therefore, the above observations made in the aforesaid judgment would be squarely applicable to the facts of the present case.

4.2 Reliance was placed upon the decision of the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, MANU/SC/1063/2004 : (2005) 2 SCC 256, for the proposition that where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the facts of the said case, the court observed that section 10 of the Code had no application and consequently, it was not open to the High Court to bypass section 10 of the Code by invoking section 151 of the Code.

4.3 Referring to the decision of the Supreme Court in the case of Arjun Singh v. Mohindra Kumar (supra), on which reliance has been placed on behalf of the petitioner, it was pointed out that in paragraphs 19 and 20 thereof, the Supreme Court has held that the inherent power of the court cannot override the express provisions of the law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. If a provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the court to make an order necessary for the ends of justice. It was submitted that when specific provision has been made under section 10 of the Code, there is no scope for invocation of inherent powers of the court.

4.4 It was further submitted that section 94(e) of the Code is the parent section and that the application has been correctly rejected by the Commercial Court. It was argued that the contention regarding invoking the inherent powers was neither raised, nor pleaded before the Commercial Court and that the relief claimed in the application goes against section 10 of the Code and, therefore, section 151 of the Code does not apply.

4.5 It was further submitted that section 151 of the Code may also be invoked where the proceedings are vexatious, whereas the subsequent suit has been filed against a different party and cannot be termed as vexatious. In support of such submission, reliance was placed upon the following observations of the Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal (supra):

"27. The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure.

28. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.

29. In this connection, reference may usefully be made to what was said in Cohen v. Rothfield, 1919-1 KB 410 and which case appears to have influenced the decision of the Courts in this country in the matter of issuing such injunction orders. Scrutton, L. J., said at page 413:

"Where it is proposed to stay an action on the ground that another is pending, and the action to be stayed is not in the Court asked to make the order, the same result is obtained by restraining the person who is bringing the second action from proceedings with it. But, as the effect is to interfere with proceedings in another jurisdiction, this power should be exercised with great caution to avoid even the appearance of undue interference with another Court".
And again, at page 415:

"While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised, and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless."
The principle enunciated for a plaintiff in a earlier instituted suit to successfully urge a restraint order against a subsequent suit instituted by the defendant, is stated thus in this case, at page 415:

"It appears to me that unless the applicant satisfies the Court that no advantage can be gained by the defendant by proceeding with the action in which he is plaintiff in another part of the King's dominions, the Court should not stop him from proceeding with the only proceedings which he, as plaintiff, can control. The principle has been repeatedly acted upon."
The injunction order in dispute is not based on any such principle. In fact, in the present case, it is the defendant of the previously instituted suit that has obtained the injunction order against the plaintiff of the previously instituted suit.

30. The considerations which would make a suit vexatious are well explained in Hyman v. Helm, (1883) 24 Ch D 531. In that case, the defendant, in an action before the Chancery Division of the High Court brought an action against the plaintiffs in San Francisco. The plaintiffs, is an action in England, prayed to the Court to restrain the defendants from proceeding further with the action in San Francisco. It was contended that it was vexatious for the defendants to bring the action in San Francisco as the witnesses to the action were residents of England, the contract between the parties was an English contract and that its fulfilment took place is England. In repelling the contention that the defendants' subsequent action in San Francisco was vexatious, Brett, M. R., said at page 537:

"If that makes an action vexatious it would be a ground for the interference of the Court, although there were no action in England at all, the ground for alleging the action in San Francisco to be vexatious being that it is brought in an inconvenient place. But that is not the sort of vexation on which an English Court can act.

It seems to me that where a party claims this interference of the Court to stop another action between the same parties, it lies upon him to shew to the Court that the multiplicity of actions is vexatious, and that the whole burden of proof lies upon him. He does not satisfy that burden of proof by merely shewing that there is a multiplicity of actions, he must go further. If two actions are brought by the same plaintiff against the same defendant in England for the same cause of action, then, as was said in Mchonry v. Lewis (22 Ch. D. 397) and the case of the Peruvian Guano Company v. Bockwoldt (23 Ch. D. 225), prima facie that is vexatious, and therefore the party who complains of such a multiplicity of actions had made out a prima facie case for the interference of the Court. Where there is an action by a plaintiff in England, and a cross action by a defendant in England, whether the same prima facie case of vaxation arises is a much more difficult point to decide and I am not prepared to say that it does."

It should be noticed that this question for an action being vexatious was being considered with respect to the subsequent action brought by the defendant in the previously instituted suit and when the restraint order was sought by the plaintiff of the earlier suit. In the case before us, it is the plaintiff of the subsequent suit who seeks to restrain the plaintiff of the earlier suit from proceeding with his suit. This cannot be justified on general principles when the previous suit has been instituted in a competent Court."

4.6 It was submitted that in the facts of the present case, the parties are different; the causes of action are different; and the reliefs claimed are also different; and hence, there is no question of injuncting the suit for any purpose. It was submitted that while an application under section 10 of the Code may be made at any stage, for the purposes of section 151 of the Code, the application is grossly delayed.

5. In rejoinder, Mr. Mihir Thakore, learned counsel for the petitioner submitted that section 10 of the Code mandates stay of proceedings in the circumstances provided thereunder. The power under section 151 of the Code does not get restricted because of section 10 thereof. Referring to the decision of the Supreme Court in Shipping Corporation of India Ltd. v. Machado Bros. (supra), it was submitted that the court in paragraph 20 of the decision, has followed the principle laid down right from 1962 by a four judge judgment of the Supreme Court, which says that unless expressly prohibited, the situation can be dealt with under section 151 of the Code. Thus, there being no express prohibition in section 10 or any other provision of the Code, in the facts of the present case, the powers under section 151 of the Code are required to be exercised.

6. In the backdrop of the aforesaid facts and contentions, a brief reference may be made to the facts of the present case. Civil Suit No. 1360 of 2003 has been instituted to restrain the defendant - (Bank of Bahrain & Kuwait B.S.C.) from recovering the debt of the plaintiff and also for a direction not to enforce any security or use any negotiable instrument including the post-dated cheque amounting to Rs. 7,50,00,000/- drawn on HDFC Bank lying in its custody as the plaintiff is protected under the BRU Act notification. By Civil Suit No. 3213 of 2004 (now Commercial Civil Suit No. 154 of 2016), which has been instituted by the plaintiff against the petitioner - HDFC Bank Limited, the plaintiff seeks a declaration that the action of the defendant bank in paying an amount of Rs. 7,50,00,000/- to BBK by passing the cheque in question in spite of insufficient funds and prohibitory order of the court in Civil Suit No. 1360 of 2003 and debiting the plaintiff's account is illegal, and accordingly, seeks reversal of the said debit entry; it further seeks a declaration that such action is mala fide and that the bank has misappropriated the said amount; and further seeks to restrain the defendant from dishonouring cheques issued by the plaintiff on that account to the extent of the balance lying in the said account as on 23.12.2004 and to the extent of amounts that might be deposited till the date of the suit and may be deposited therein thereafter and further to restrain the defendant from transferring or appropriating any amounts that might be already deposited till the date of the suit or that may be deposited in the said accounts thereafter.

7. The petitioner herein filed the application below Exhibit 166 under section 10 read with section 151 of the Code contending that the plaintiff had filed suits of one instrument and that the reliefs of the two suits are similarly identical and also related to the above suits. That the plaintiff ought to have filed one suit against the BBK Bank and HDFC Bank, but the plaintiff has intentionally filed two separate suits and is thereby abusing the process of law. It is further averred therein that the subject matter of both the suits are similar and identical and the issues involved in both the matters are identical, and, therefore, the suit of the plaintiff is also hit by section 10 of the Code. It is further averred that the reliefs of both the suits are directly and substantially in issue in the previously instituted suit and therefore, section 10 of the Code is attracted to the subsequent suit and the subsequent suit is required to be stayed till the disposal of Civil Suit No. 1360 of 2003 pending before the City Civil Court, Ahmedabad.

8. The Commercial Court, by the impugned order, has held that the cause of action for filing the second suit arose only when the cheques of Rs. 7,50,00,000/- were encashed by the Bank of Bahrain & Kuwait; the parties in both the suits are different; the first court must be competent to grant the relief claimed in the second suit, whereas in this case, the first suit is pending before the City Civil Court, but the second suit is pending before the Commercial Court, and the relief claimed in this suit cannot be granted by the City Civil Court. It is further observed that the application came to be filed after the matter was fixed for final arguments and the trial was over. The Commercial Court was of the view that the conduct of the defendant is to delay the proceedings of the suit and therefore, it imposed costs of Rs. 50,000/-.

9. A perusal of the application made under section 10 read with section 151 of the Code reveals that by and large the application has been brought under section 10 of the Code. However, before this court, the learned counsel for the petitioner has sought to justify the application under section 151 of the Code.

10. In the aforesaid backdrop, the first question that arises for consideration is as to whether the provisions of section 10 of the Code would be applicable to the facts of the present case. In this regard, a perusal of the averments made in the respective plaints reveals that the first suit, being Civil Suit No. 1360 of 2003, was in the context of granting credit facility in the nature of medium term loan of Rs. 7,50,00,000/- which was granted by the defendant Bank of Bahrain & Kuwait. As per the terms of agreement, the plaintiff had issued a postdated cheque drawn on HDFC Bank - the respondent in the second suit, amounting to Rs. 7,50,00,000/-. On account of financial difficulties faced by it, the plaintiff requested Bank of Bahrain & Kuwait not to deposit the post-dated cheque in the near future. The plaintiff was also registered under the BRU Act. On or about 11.11.2002, the Government of Gujarat issued a notification under the Bombay Relief Undertakings (Special Provisions) Act in favour of the plaintiff and suspended all rights, liabilities and obligations of the company. Since the defendant bank had informed the plaintiff that they would deposit the said post-dated cheque, the plaintiff instituted the suit.

11. Accordingly, the Civil Suit No. 1360 of 2003 came to be instituted to restrain the defendant therein from recovering the debt of the plaintiff and for also a direction not to enforce any security or use any negotiable instrument, including the post-dated cheque amounting to Rs. 7,50,00,000/- drawn on HDFC Bank lying in its custody as the plaintiff is protected under the BRU Act notification. The cause of action as stated in the plaint reads thus:

"12. The cause of action arose within the jurisdiction of this Honourable Court when the Plaintiff had accepted the offer of the Defendant at Ahmedabad and availed credit facility in the nature of medium term loan from the Defendant Bank and when the Plaintiff had returned copy of the offer letter duly signed by the authorised signatory at Ahmedabad along with other documents as requested by the Defendant and returned the same from Ahmedabad and when the Plaintiff had signed several other documents for the aforesaid purpose at Ahmedabad and when the Plaintiff had handed over the post-dated cheque in compliance with the terms and conditions of the medium term loan facility and when the State Government issued a Notification on 11/11/2002 under BRU Act in favour of the Plaintiff and when the Plaintiff had personally and on telephone informed the Defendant Bank not to deposit the said post-dated cheque lying in the custody of the Defendant and when the Plaintiff vide its letter dated 14/4/2003 communicated the Defendant Bank not to deposit the said cheque and when the Defendant Bank had not agreed for the same and hence the Plaintiff apprehends forcible recovery by the Defendant Bank by way of depositing cheque in contravention of the provisions of the BRU Act. The Plaintiff, during its various meetings in person, as well on telephone informed the defendant Bank about the BRU notification. Even so the bank has threatened to deposit the cheques in question."
It appears that the trial court had granted ad-interim injunction in favour of the plaintiff and restrained Bank of Bahrain & Kuwait from encashing the cheque.

12. It appears that Bank of Bahrain & Kuwait presented the cheque and despite the fact that the plaintiff did not have sufficient funds in its account, the amount of the cheque was credited to Bank of Bahrain & Kuwait in the petitioner's account with Reserve Bank of India in clearing house by a practice described as "Negative clearance" in banking parlance. It appears that the petitioner returned the cheque to Bank of Bahrain & Kuwait as per the banking norms and reversed the debit entry of Rs. 7,50,00,000/- and credited such amount to the plaintiff's account on 29.5.2003, which remained undisturbed till 24.12.2004. However, thereafter, the petitioner informed the plaintiff that its current account No. 0010330000210 with Tulsiani Branch of the bank was running with net debit balance of Rs. 7,49,98,236.55 ps. Being aggrieved by the action of the defendant bank (viz. the petitioner herein) in paying over Rs. 7,50,00,000/- to Bank of Bahrain & Kuwait despite the fact that sufficient funds were not available in the plaintiff's said account and debit of the said amount in the plaintiff's account, the respondent-plaintiff instituted the present suit being Civil Suit No. 3213 of 2004 (now Commercial Civil Suit No. 154 of 2016), seeking the reliefs referred to in paragraph 6 hereinabove.

13. The cause of action as set out in the plaint reads thus:

"9. The cause of action to file this suit has arisen on or about 28/5/2003 when Defendant wrongly passed a cheque No. 093865 dated 29/11/2002 presented by BBK in spite of the fact that there was no adequate fund in the Plaintiff's account and in spite of the fact that there was already existing a restraint order against BBK from encashing a cheque about which the Defendant was aware; and on 24.12.2004 when Defendant made a false debit entry of Rs. 7.5 crores to Plaintiff's account No. 0010330000210 with Defendant at Tulsiani Branch and on the same day when Defendant made debit entries of various amounts in the Plaintiff's various accounts described in Part-I of Annexure-A hereto with Defendant's Navrangpura branch and credited the said amount in account No. 0010330000210 with Defendant's Tulsiani Branch and misappropriated the said amounts towards its false, concocted and fraudulent claim and on 25.12.2004 when Plaintiff received Defendant's letter dated 24.12.2004 informing the Plaintiff about the Defendant's illegal and unauthorised action."
14. Thus, while the first suit has been instituted to restrain the defendant therein (Bank of Bahrain & Kuwait) from encashing the cheque for a sum of Rs. 7,50,00,000/-, the subsequent suit has been instituted against the petitioner for passing the cheque despite the fact that there were no adequate funds in the plaintiff's account and debiting such amount in the plaintiff's account.

15. The Supreme Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (supra) has held that the fundamental test to attract section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.

16. Reverting to the facts of the present case, the cause of action for filing the present suit is totally different from the cause of action for filing the previous suit and the matter in issue in the present suit cannot be said to be "directly and substantially in issue" in the previous suit. The only common factor in both the suits is the cheque of Rs. 7,50,00,000/- issued by the plaintiff in favour of Bank of Bahrain & Kuwait, however, apart therefrom, there is no identity of the matter in issue in both the suits. The reliefs prayed for in the suits are different. Most importantly, the outcome of the first suit will have no bearing on the outcome of the second suit and consequently, the decision rendered in the first suit would not operate as res judicata in the subsequent suit. Moreover, even if the plaintiff were to fail in the previous suit, the cause of action in the subsequent suit would still survive. Another notable factor is that the parties in both the suits are also different. Moreover, the suits are not pending in courts of concurrent jurisdiction, inasmuch as the previous suit has been instituted in the City Civil Court, whereas the other suit is pending before the Commercial Court and the City Civil Court has no jurisdiction to try the subsequent suit. Therefore, the parameters for invocation of section 10 of the Code are not satisfied in the facts of the present case and hence, the said section would have no applicability.

17. The next question that then arises for consideration is whether section 151 of the Code can be invoked in the facts and circumstances of the present case?

18. At this stage, reference may be made to the decisions cited by the learned counsel for the respective parties.

18.1 In Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal (supra), the Supreme Court held thus:

"18. There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order 39 of the Code: Varadacharlu v. Narsimha Charlu, AIR 1926 Mad 256; Govindarajulu v. Imperial Bank of India, MANU/TN/0187/1931 : AIR 1932 Mad 180; Karuppayya v. Ponnuswami, AIR 1933 Mad 500; Murugesa Mudali v. Angamuthu Mudali, MANU/TN/0244/1937 : AIR 1938 Mad 190 and Subramanian v. Seetarama, MANU/TN/0206/1948 : AIR 1949 Mad 104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order 39 of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction: Dhaneshwar Nath v. Ghanshyam Dhar, MANU/UP/0214/1939 : AIR 1940 All 185; Firm Bichchha Ram v. Firm Baldeo Sahai, MANU/UP/0234/1939 : AIR 1940 All 241; Bhagat Singh v. Jagbir Sawhney, MANU/WB/0075/1941 : AIR 1941 Cal 670 and Chinese Tannery Owners' Association v. Makhan Lal, MANU/WB/0211/1951 : AIR 1952 Cal 560. We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 CPC. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression "if it is so prescribed" is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

19. There is nothing in Order 39 Rules 1 and 2 which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.

20. Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
21. A similar question about the powers of the Court to issue a commission in the exercise of its powers under Section 151 of the Code in circumstances not covered by Section 75 and Order 26, arose in Padam Sen v. State of Uttar Pradesh, MANU/SC/0065/1960 : (1961 1 SCR 884 and this Court held that the Court can issue a commission in such circumstances. It observed at p. 887 thus:

"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature."
These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice.

The inherent powers saved by section 151 of the Code are with respect to the procedure to be followed by the court in deciding the cause before it.

"While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised, and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless."

"If that makes an action vexatious it would be a ground for the interference of the Court, although there were no action in England at all, the ground for alleging the action in San Francisco to be vexatious being that it is brought in an inconvenient place. But that is not the sort of vexation on which an English Court can act.

It seems to me that where a party claims this interference of the Court to stop another action between the same parties, it lies upon him to show to the Court that the multiplicity of actions is vexatious, and that the whole burden of proof lies upon him. He does not satisfy that burden of proof by merely shewing that there is a multiplicity of actions, he must go further. If two actions are brought by the same plaintiff against the same defendant in England for the same cause of action, then, as was said in McHenry v. Lewis, (22 Ch.D. 397) and the case of the Peruvian Guano Company v. Bockwoldt, (23 Ch.D. 225), prima facie that is vexatious, and therefore the party who complains of such a multiplicity of actions has made out a prima facie case for the interference of the Court. Where there is an action by a plaintiff in England, and a cross-action by a defendant in England, whether the same prima facie case of vexation arises is a much more difficult point to decide, and I am not prepared to say that it does."

It should be noticed that this question for an action being vexatious was being considered with respect to the subsequent action brought by the defendant in the previously instituted suit and when the restraint order was sought by the plaintiff of the earlier suit. In the case before us, it is the plaintiff of the subsequent suit who seeks to restrain the plaintiff of the earlier suit from proceeding with his suit. This cannot be justified on general principles when the previous suit has been instituted in a competent court.

39. The suit at Indore which had been instituted later, could be stayed in view of Section 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified. The provisions of Section 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say, as has been said in Ram Bahadur v. Devidayal Ltd., MANU/MH/0048/1954 : ILR 154 Bom 334, that the legislature did not contemplate the provisions of Section 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of Section 35-A indicate that the legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory costs. The legislature could have therefore provided for the non-application of the provisions of Section 10 in those circumstances, but it did not. Further, Section 22 of the Code provides for the transfer of a suit to another court when a suit which could be instituted in any one of two or more courts is instituted in one of such courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court."

[Emphasis supplied]

18.2 In Arjun Singh v. Mohindra Kumar (supra), the Supreme Court held thus:

"20. On this submission, which we might mention has been urged for first time in this court, the first question that arises is whether the Court has the inherent jurisdiction which learned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by Section 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. We shall confine our attention to the topic on hand, namely applications by defendants to set aside ex parte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX. Rule 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the proceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff alongwith the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, Rule 6(1)(a) enables the Court to proceed ex parte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the saut, and (2) where the stage of the first hearing is passed and the hearing which, is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case Order IX. Rule 13 would come in. The defendant can, besides filing an appeal or an application for review have recoruse to an application under Order IX, Rule 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX, Rule 7 if the defendant appears on such adjourned date and satisfies the court by the showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled - "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-à-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX, Rule 7 and Order IX. Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice."
18.3 In Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava (supra), the Supreme Court held thus:

"5. Section 151 of the Code reads:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."
The words of the section appear to be rather wide. But the decisions of this Court, by construction, limited the scope of the said section. In Padam Sen v. State of Uttar Pradesh, MANU/SC/0065/1960 : AIR 1961 SC 218, the question raised was whether a Munsif had inherent powers under Section 151 of the Code to appoint a Commissioner to seize account books. This Court held that he had no such power. Raghubar Dayal, J., speaking for the court, observed:

"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
This Court again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, MANU/SC/0056/1961 : AIR 1962 SC 527, considered the question whether a court had inherent power under Section 151 of the Code to issue a temporary injunction restraining a party from proceeding with a suit in another State. In that context, Raghubar Dayal, J., after quoting the passage cited above from his earlier judgement, interpreted the said observations thus:

"These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions, of the legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice."
This Court again in Arjun Singh v. Mohindra Kumar, MANU/SC/0013/1963 : AIR 1964 SC 993, considered the scope of Section 151 of the Code. One of the questions raised was whether an order made by a Court under a situation to which Order 9 Rule 7 of the Code did not apply, could be treated as one made under Section 151 of the Code. Rajagopala Ayyangar, J., made the following observations:

"It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which relates."
Having regard to the said decisions, the scope of the inherent power of a court under Section 151 of the Code may be defined thus: The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.

6. Even so, learned Counsel for the appellant contended that Order 29 Rule 3, of the Code did not provide for any penalty in case the director required to appear in court failed to do so. By drawing an analogy from other provisions where a particular default carried a definite penalty, it was argued that in the absence of any such provision it must be held that the legislature intentionally had not provided for any penalty for the said default. In this context the learned Counsel had taken us through Order 9 Rule 12, Order 10 Rule 4, Order 11 Rule 21, Order 16 Rule 20, and Order 18 Rules 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex parte decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in Order XXIX, the Court is helpless against recalcitrant plaintiff or defendant who happens to be a company. There is nothing in Order XXIX of the Code, which, expressly or by necessary implication, precludes the exercise of the inherent power of the court under Section 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in court when he was so required under Order 29 Rule 3, of the Code, the court can make a suitable consequential order under Section 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the court."

Since there is no provision in the Code for taking action in a case of default made by a director who failed to appear in court when required under Order XXIX rule 3 of the Code, the court held that a suitable consequential order can be made under section 151 of the Code to meet with the ends of justice or to prevent abuse of the process of court.

18.4 In Shipping Corporation of India Ltd. v. Machado Bros. (supra), the Supreme Court held as under:

"19. Coming to the maintainability of I.A. No. 20651/2001, the learned counsel for the appellant in support of his contention that an application under Section 151 CPC for the dismissal of the suit on the ground of same having become infructuous was maintainable, has relied on number of judgments. In Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava, (MANU/SC/0263/1966 : AIR 1966 SC 1899) while discussing the scope of Section 151 CPC this Court after considering various previous judgments on the point held:

"The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S. 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court."
20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under Section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the court will consider whether such power should be exercised or not on the basis of facts mentioned in the application."

18.5 In National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (supra), the Supreme Court held thus:

"7. The short question which arises for determination is - whether application dated 20-6-2003 filed by the respondent under Section 10 read with Section 151 CPC seeking stay of Civil Suit No. 1732 of 1995 in the Court of City Civil Judge, Bangalore, was maintainable.

8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.

9. In the present case, the appellant had initiated the disciplinary proceedings against the respondent herein on charges of misappropriation of drugs. In the said disciplinary proceedings, the respondent was found guilty of alleged misappropriation of drugs. On the basis of the findings arrived at in the disciplinary enquiry, the respondent herein was removed. The extent of the loss suffered by the appellant, as found in the disciplinary enquiry, was Rs. 1,79,668.46. Being aggrieved by the order of dismissal, the respondent moved the Labour Court. On 29-10-2001, the Labour Court passed an award setting aside the order of removal dated 12-4-1993. Being aggrieved, the appellant instituted Writ Petition No. 24348 of 2002. The appellant has also instituted Civil Suit No. 1732 of 1995 for recovery of the loss suffered by it to the tune of Rs. 1,79,668.46 with interest. Thus, as can be seen from the above facts, both the proceedings operated in different spheres. The subject-matter of the two proceedings is entirely distinct and different. The cause of action of the two proceedings is distinct and different. The cause of action in filing the said suit is the loss suffered by the appellant on account of the shortage of drugs. On the other hand, in the said Writ Petition No. 24348 of 2002, the management has challenged the award of the Labour Court granting reinstatement of the respondent.

10. As stated above, Section 10 CPC is referable to a suit instituted in a civil court. The proceedings before the Labour Court cannot be equated with the proceedings before a civil court. They are not the courts of concurrent jurisdiction. In the circumstances, Section 10 CPC has no application to the facts of this case.

11. In the impugned judgment, the High Court has observed that since Writ Petition No. 24348 of 2002 filed by the appellant against the award of the Labour Court was pending in the High Court and since the High Court was superior to the civil court, it was desirable to stay the passing of the decree by the civil court. At this stage, it may be mentioned that the respondent applied for stay of the trial pending in the City Civil Court, Bangalore under Section 10 read with Section 151 CPC. Since the scope of the writ petition filed by the management was entirely distinct and separate from the suit instituted by the management in the civil court, we are of the view, that, the High Court had erred in directing the trial court not to proceed with the drawing up of the decree.

12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, MANU/SC/0056/1961 : AIR 1962 SC 527, it has been held that inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bypass Section 10 CPC by invoking Section 151 CPC.

19. On a conspectus of the above decisions, the following principles can be culled out:

(i) The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore the court is free to exercise them for the purposes mentioned in section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature. The inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.

(ii) The inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in section 151, itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions, of the legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code, but because it should be presumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice.

(iii) The inherent power of the court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.

(iv) The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of section 151 of the Code, they do not control the undoubted power of the court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.

(v) The inherent powers saved by section 151 of the Code are with respect to the procedure to be followed by the court in deciding the cause before it.

(vi) When every contingency which is likely to happen has been provided for and the main section and the rules between them exhaust the whole gamut of situations that might arise during the course of the trial; when provision has been made for every contingency, there is no scope for the invocation of the inherent powers of the court to make an order necessary for the ends of justice.

20. In the light of the above principles, the question that arises for consideration is whether the provisions of section 10 of the Code exhaust the whole gamut of situations that might arise during the course of the trial. Section 10 of the Code reads as under:

"10. Stay of suit :: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation - The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."

21. Thus, section 10 of the Code bars the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. Thus, section 10 of the Code specifically provides for the contingencies under which a subsequent suit can be stayed, viz., (i) where the issue is also directly and substantially in issue in a previously instituted suit; (ii) such suit is between the same parties, or between parties under whom they or any of them claim litigating under the same title; (iii) where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. There is no other provision in the Code which provides for stay of the suit by the court where the suit is instituted. Section 10 of the Code clearly exhausts the contingencies in which such power can be exercised. Therefore, if powers under section 151 of the Code are exercised, the same would clearly be in conflict with what had been expressly provided in section 10 of the Code and against the intentions of the legislature. Considering the scheme of the Code, it is apparent that the legislature intended the provisions of section 10 to be exhaustive insofar as the prohibition against proceeding with the subsequent suit is concerned. Therefore, the exercise of inherent powers under section 151 of the Code to stay the proceedings in contingencies not contemplated under section 10 of the Code would be against the legislative intention and against the interests of justice. Under the circumstances, the petitioner is not entitled to relief claimed in the application either under section 10 or section 151 of the Code.

22. Under the circumstances, no infirmity can be found in the impugned order passed by the Commercial Court in dismissing the application filed by the petitioner.

23. Insofar as imposition of costs of Rs. 50,000/- is concerned, the facts speak for themselves. In the present case, the first suit, viz., Civil Suit No. 1360 of 2003 came to be instituted in May 2003; whereas, Civil Suit No. 3213 of 2004 came to be instituted sometime in December, 2004. However, till the stage of arguments before the Commercial Court, the petitioner did not deem it fit to move any such application and at the fag end of the trial, the present application came to be filed only on 23rd October, 2018. The Commercial Court, in the impugned order, has found that the conduct of the defendant clearly shows that the application is filed with a view to delay the proceedings of the suit. Having regard to the facts of the case and the findings recorded by the Commercial Court, the court does not find any infirmity in the discretion exercised by the Commercial Court so as to warrant interference with the order of costs imposed by it.

24. In the light of the above discussion, the petition fails and is hereby dismissed.


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