Messrs Golwala Preme Chand Bhai Kali Dass Allayawadi vs Messrs Kundan Lal Ram Lal

Grover, J.—This is a petition for revision against an order declining to stay a suit u/s 10 of the CPC pending in the Court of Subordinate Judge 1st Class, Samrala.

The petitioner-firm filed a suit on 23th October, 1983 against the respondent-firm for recovery of Rs. 314.96 P. and rendition of accounts up to the date of the suit in the Courts at Surat. The principal allegation in that suit is that the respondent-firm was working as commission agents of the petitioner-firm and entered into several transactions for which account had not been rendered. While that suit was pending in the Surat Courts the respondent-firm filed a suit in March 1964 in the Court of Subordinate Judge, Samrala, for recovery of Rs. 10407.89P. against the petitioner-firm on account of damages for breach of contract for the purchase of two wagons of jaggery. An application was moved u/s 10 by the petitioner-firm for staying that suit till the decision of the suit pending in the Courts at Surat. The learned Subordinate Judge has refused to stay the suit on the ground that the question involved in the suit pending at Surat dots not directly arise in the suit instituted at Samrala. In the suit at Samrala the question for determination it the recovery of damages for non-acceptance of two wagons of jaggery for which contracts are not admitted by the petitioner-firm to have been entered into at all. The learned Subordinate Judge further observed that the dispute between the parties at Surat relates to the goods already supplied whereas the points involved in the suit at Samrala are in respect of goods which were supplied but which were not accepted by the petitioner firm. Therefore, no question of staying the suit at Samrala arose u/s 10.

3..Mr. Hans Raj Sodhi has referred to a number of decisions, namely, Sheobachan Pandey and Another Vs. Madho Saran Choubey and Others, , Sanam Narayanamurthi and Another Vs. Manapalli Nageswara Rao, Durga Parsad v. Swami Avidya Nand Guru Swami Hamarata Nani AIR 19S8 All. 574 and Sarangdhar Singh and Another Vs. Lakshmi Narayan Wahi, , as also AIR 1943 17 (Oudh) , in which it has been held that there can be an equitable set-off in respect of an ascertained sum of money and the essence of such a claim is that there must be some connection between the plaintiff''s claim for a debt and the defendant''s claim to set-off, which will make it inequitable to drive the defendant to a separate suit, as, for instance when they arise out of the same transaction or transactions so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant should be driven to a cross suit. Reference, in particular, may be made to Oudh case in which it has been held that a set-off even in respect of an unascertained sum by way of damages may be allowed where the cross-demands may arise out of the same transaction, or are so connected in their nature and circumstances that they can be looked upon as part of one transaction. Such a set-off can be called an equitable set-off. The submission of Mr. Sodhi is that in the suit at Surat at is open to the respondent-firm to claim a set-off with regard to the amount which is the subject-matter of claim in the suit at Samrala because the alleged two transactions in respect of supply of jaggery are prior to the date of the suit at Surat and, therefore, the claim relating to these transactions could be adjudicated by the Surat Courts. It is urged that in that event the suit at Samrala cannot proceed and must be stayed u/s 10.

On behalf of the respondent-firm it has been submitted that the two transactions which have given rise to the cause of action for the institution of the suit at Samrala are not being admitted as having been entered into by the petitioner-firm. They, therefore, cannot be regarded as such transactions which would fall within the scope of the suit instituted at Surat. The Court below followed Rallis India Ltd. v. Assam Trading Co-operative Ltd. AIR 1956 Ass 112. In that case it has been held that where the whole Question which arises for consideration in a suit instituted at place X is the question about the price payable in respect of the goods already supplied and it had has nothing to do at all with the claim for damages for non-supply of goods which is the subject-matter of the suit filed at Y, then as the point involved in the suit at X does not directly and substantially arise in the suit instituted in Y, the suit at X need not be stayed u/s 10. It is well settled that a defendant who has a Claim for a set-off is not bound to pat it forward in answer to a suit against him and his omission to do so does not preclude him from bringing a separate suit in respect of it. For this reason the respondent-firm was not bound to put it forward in answer to the suit instituted by the petitioner-firm at Surat, nor can- it be said that the matter in issue in the suit filed at Samrala is also directly and substantially in issue in the suit pending at Surat. I am, therefore, of the opinion that the decision of the Court below is correct and the petition for revision cannot succeed. It is dismissed but in the circumstances I make no order as to costs.

The parties are directed to appear in the Samrala Court on 22nd November, 1965.