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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.