Holding

The two suits deserve to be heard and tried in one court; the later suit filed in Delhi is transferred to the earlier suit’s court in Nashik under Section 25, respecting the rule of Section 10.

Summary

The Gupte Cardiac Care Centre & Hospital filed a suit in Nashik seeking recovery of Rs.28.35 lakh after a heart‑lung machine purchased from a German manufacturer and its Indian dealer performed unsatisfactorily. The dealer, Olympic Pharma Care Pvt. Ltd., filed a suit in the Delhi High Court for the balance price of Rs.20 lakh. Both parties filed transfer petitions: the hospital sought to transfer the Delhi suit to Nashik, while the dealer sought to transfer the Nashik suit to Delhi. The Court examined Sections 25 and 10 of the Code of Civil Procedure, 1908, holding that the two suits arise from the same transaction and must be tried together for expediency of justice. Accordingly, the later suit (Delhi) was transferred to the earlier suit’s court (Nashik) and the suits were ordered to be consolidated for trial. The transfer petition filed by the hospital was allowed and the dealer’s transfer petition was dismissed.

Issues considered

Whether two suits arising out of the same transaction should be transferred and consolidated under Section 25 of the CPC.
Whether Section 10 of the CPC, which mandates staying the later suit, applies in this scenario.
What factors (expediency of justice, convenience of parties, location of evidence) are relevant for exercising the discretionary jurisdiction under Section 25.

Legislation cited

Code of Civil Procedure, 1908s. 10, s. 25
Constitution of Indias. Article 139(A)(1)

Subjects

transfer of suitconsolidation of suitsSection 25 CPCSection 10 CPCexpediency of justiceduplicate litigationcivil procedurejurisdictionsame cause of action

Judgment

MIS GUPTE CARDIAC CARE CENTRE AND HOSPITAL
A
v.
,.,.
OL YMP!C PHARMA CARE PVT. LTD.

APRIL 6. 2004

B [R.C. LAHOT! AND ASHOK BHAN, JJ.]

Code of Civil Procedure, 1908:

Ss. 25 and IO-Transfer of suit-Two suits arising out of the same
c transaction filed in two different courts-Plaintiffs in both the suits seeking
transfer of the other suits-Held, the two suits deserve to be heard and tried
in one Court-Keeping in view the rule underlying s. I 0, the suit filed
subsequently is transferred to the court wherein the suit first in point of time
was instituted, and the said court will set down the c:ases for consolidated
trial.
D
The petitioner hospital and another company filed a suit at Nasik
against a German Manufacturer and its dealer in India, the respondent,
for recovery of certain amount including damages, as performance of the
Heart-Lung Machine purchased by the petitioner from the defendants was
not found satisfactory. Subsequently, the respondent dealer also filed a
E
suit in the High Court of Delhi against the petitioner hospital for recovery
of certain amount stated to be the balance price of the machine and interest
thereon, The petitioner Hospital filed T.P. (C) No. 400 of2003 for transfer
of the suit at Delhi to Nasik and the dealer filed TP(C) No. 248/2004
seeking transfer of the suit at Nasik to Delhi,
F
Allowing TP(C) No. 400 of 2003 and dismissing TP (C) No. 246 of
2004, the Court

HELD: The two suits deserve to be heard and tried in one court.
For exercise of discretionary jurisdiction under s.25 of the Code of Civil
G Procedure, 1908, the only consideration which is relevant is 'expediency
of justice'. The Court will have regard to and respect for the rule enacted
under s, 10 of the Code whereunder the trial of the suit at Delhi being the
... j
later suit would be liable to be stayed. Of course, the considerations such
as which is the place where most of the evidence is available, convenience

H 916
GUPTECARDIACCARECENTREANDHOSPITAL •·.OLYMPIC PHARMACAREPVT. LTD. [LAHOTI .J.j 9 J 7

of the parties and witnesses, which one of the two places is more convenient A
to access and attend and so on are also the factors to be kept in view in
an appropriate case to direct a transfer of case in departure from the rule
underlying s.IO of the Code. So far as the present cases are concerned,
the ordinary rule is followed, as there is no factor or consideration relevant
for making a departure therefrom. The suit at Delhi is transferred to the B
Court at Nasik for the purpose of hearing and decision thereat. The Court
at Nasik may frame consolidated issues taking into consideration the
pleading in both the cases and thereafter set down the cases for
consolidated trial. (918-D; 918-F-H; 919-Al

CIVIL ORIGINAL JURISDICTION : Transfer Petition (C) No. 400 of C
2003.

(Under Article 139(A)(I) of the Constitution of India.)

WITH

T.P. (C) No. 248 of 2004. D

Kumar Parimal, B.S. Sai, Aniruddha and P. Mayee for the Petitioner.

P.N. Mishra, Nishant Menon and Umesh Kumar Khaitan, for the
Respondents.
E
The Judgment of the Court was delivered by

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 F
defendants impleaded therein are Mis. 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 G
hospital in the High Court of Delhi (Original Side) on I0.1.2002, which is
registered as suit No.190 of 2002.

It appears that the Hospital needed a Heart-Lung Machine alongwith
accessories manufactured by the Gennan company (the manufacturer) and
marketed by the 'Dealer' in India. The machine was delivered and installed. H
918 SUPREME COURT REPORTS (2004] 3 S.C.R.

A 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
B 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' ~eeking
transfer of the suit at Nashik to Delhi.
c 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
D 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
E 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 I0 of the CPC, the trial of the suit at Delhi, being the latter suit,
F 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 I 0 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
G 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
H
GUPTECARDIAC( "ARE CENTRE AND llOSPITAL •·. OL YMl'IC PHARMA CARE PVT. LTD. [LAHOTI . .I.] 919

decision thereat. In doing so we are following the ordinary rule as we do not A
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 consolidilted for the purpose of trial. The learned Civil Judge B
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 C
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.
D
R.P. T.P.(C) No.400/03 allowed.
T.P.(C) No.248/04 is dismissed.
'r"