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
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.
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.