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CASE NO.: Transfer Petition (civil)  400 of 2003

PETITIONER: M/s. Gupte Cardiac Care Centre & Hospital

RESPONDENT: Olympic Pharma Care Pvt. Ltd.

DATE OF JUDGMENT: 06/04/2004

BENCH: R.C. LAHOTI & ASHOK BHAN.

JUDGMENT: J U D G M E N T

 With

TRANSFER PETITION (CIVIL) NO. 248 OF 2004

R.C. Lahoti, J.           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).

       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.

       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.

       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.  

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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.

       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.

       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.

       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.