SUPREME COURT OF INDIA
Gupte Cardiac Care Centre and Hospital
Vs.
Olympic Pharma Care Private Limited
Transfer Petition (Civil) 400 of 2003
(R. C. Lahoti and Ashok Bhan JJ.)
06.04.2004
JUDGMENT
R. C. Lahoti, J.
1. Gupte Cardiac Care Centre & Hospital (hereinafter 'the Hospital',
for short) representing Healing Touch Angiography and Cardiac Surgery Centre
Pvt. Ltd, both situated at Nashik, have filed Special Civil Suit No. 62 of 2002
in the Court of Civil Judge at Nashik on 20.12.2001. The defendants impleaded
therein are M/s. Jostra Medizintechnic AG and Olympic Pharma Care Pvt. Ltd.
situated respectively at Germany and Delhi, (hereinafter referred to as
'manufacturer' and 'dealer', for short).
2. Olympic Pharma Care Pvt. Ltd., New Delhi has filed a suit against the
hospital in the High Court of Delhi (Original Side) on 10.1.2002, which is
registered as suit No.190 of 2002.
3. It appears that the Hospital needed a Heart-Lung Machine alongwith
accessories manufactured by the German company (the manufacturer) and marketed
by the 'Dealer' in India. The machine was delivered and installed. Disputes
arose as the performance of the machine was not found to be satisfactory. There
was correspondence and notices exchanged and then suits filed. The suit filed
by the 'Hospital' at Nashik is for recovery of Rs.28, 35, 000/-. The plaintiffs
therein have claimed the return of the advance paid, compensation equivalent to
the additional amount spent by them for purchasing another machine and the
interest on the said two sums. The suit instituted by the 'Dealer' at Delhi is
for recovery of Rs.20, 00, 000/- alleged to be outstanding by way of balance
price of the machine and interest thereon. T.P.(C) No.400/2003 has been filed by
the Hospital seeking transfer of the suit at Delhi to Nashik while T.P.(C)
No.248/2004 has been filed by the 'Dealer' seeking transfer of the suit at
Nashik to Delhi.
4. It has not been disputed at the Bar that the two suits arise out of the same
transaction. Cause of action of one party arrayed as plaintiff would be its
defence in the suit where it is arrayed as defendant. Though there are two
plaintiffs and two defendants in the suit at Nashik while there is only one
plaintiff and one defendant in the suit at Delhi but there is substantial
identity of the parties in the two suits. The issues arising for decision would
necessarily be the same. Only one of the two suit can be decreed. The decree in
one suit in favour of the plaintiff in that suit would entail the dismissal of
the other suit. It cannot, therefore, be denied that the two suits deserve to
be heard and tried in one Court. That would avoid the possibility of any
conflicting decrees coming into existence. And certainly the duplication of
evidence, oral and documentary both, would be avoided. The parties and the
Courts would save their time and energy which would needlessly be wasted twice
over.
5. The suit at Nashik has been instituted first in point of time. By reference
to Section 10 of the CPC, the trial of the suit at Delhi, being the latter
suit, shall be liable to be stayed. For the exercise of its discretionary
jurisdiction under Section 25 of the Code of Civil Procedure, 1908 the only
consideration which is relevant is - 'expediency for ends of justice'. The
court will have regard to and respect for the rule enacted in Section 10 of the
Code. Of course, the considerations such as which is the place where most of
the evidence is available, convenience of the parties and witnesses, which one
of the two places is more convenient to access and attend and so on are also
the factors to be kept in view and may in an appropriate case persuade this
Court to direct a transfer of case in departure from the rule underlying
Section 10 of the Code. All would depend on the facts and circumstances of a
given case. So far as the present cases are concerned, we deem it proper to
transfer the suit at Delhi to the Court at Nashik for the purpose of hearing
and decision thereat. In doing so we are following the ordinary rule as we do
not find any factor or consideration relevant for making a departure therefrom.
6. T.P.(C) No.400/2003 is allowed. Suit No.190/2002 pending in the High Court
of Delhi at New Delhi (Civil Original Ordinary Jurisdiction) is directed to be
transferred to the Court of Civil Judge S.D. Nashik at Nashik. Both the suits
shall be consolidated for the purpose of trial. The learned Civil Judge seized
of the trial may frame consolidated issues taking into consideration the
pleadings in both the cases, and thereafter, set down the cases for
consolidated trial.
7. The Registrar (Judicial), High Court of Delhi, shall soon on communication
of this order, transfer complete record of the proceedings of Suit No. 190 of
2002 to the court of Civil Judge S.D. Nashik at Nashik.
T.P.(C) No.400 of 2003 is thus allowed.
T.P.(C) No.248 of 2004 is dismissed.