Patna High Court – Orders
M. L. Sureka vs Diwa Kant Mishra And Ors on 24 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.962 of 2017
======================================================
M. L. Sureka S/o Late Kedarnath Sureka, proprietor of the firm named and
styled as M.L. Sureka and Co., Ezra Street, P.S.- Hare Street, Kolkata-
700001.
... ... Petitioner
Versus
1.1. Binay Kumar Mishra, Son of late Diwa Kant Mishra, Resident of Village-
Manguraha, P.S. Govindganj, District-East Champaran, Presently residing at
Qr. No. E 1/63 Barauni Refinery Township, Begusarai.
1.2. Satyendra Kumar Mishra, Son of late Diwa Kant Mishra, Resident of
Village- Manguraha, P.S. Govindganj, District-East Champaran, Presently
residing at Qr. No. E 1/63 Barauni Refinery Township, Begusarai.
2. Jay Hind Kabra, S/o Late Jagannath Kabra, proprietor of the firm named and
styled as Kabra and Co. Office at 2 India Exchange Place, 2nd Floor,
Kolkata- 700001.
3. Mr. Subrata Kunda Chaudhary, Office at 17 Dr. Chatterjee Lane, P.S.-
Serampore, District- Hoogly, S
4. Mr. Sib Kinkar Mallick, S/o Durlav Kumar Mallick, residing at Ghoshpara,
2nd lane, Sermapore, District- Hoogly, State- West Bengal.
5. Mr. Ram Sagar Sinha, S/o late Ram Sharan Singh, a resident of Village-
Bihat, Tola- Masnadpur, P.S.- Barauni, District- Begusarai, at present C/o
Parmanand Singh, at Sun Flower School, Kapasia, District- Begusarai.
6. Vintage Capital Markets Ltd. Office at 227, Acharya Jagdish Chandra Bose
Road, Kolkata.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Rajni Kant Jha, Advocate
For the Respondents : Mr. Satish Kumar, Advocate
Mr. Mukesh Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL ORDER
12 24-07-2025
Heard learned counsel for the petitioner and learned
counsel appearing on behalf of the respondent 1 st set.
2. The present civil miscellaneous petition has been
filed against the order dated 06.03.2017 passed by learned Sub-
Judge-VI, Begusarai in Money Suit No. 10 of 2003, whereby and
whereunder the learned Sub-Judge-VI, Begusarai rejected the
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application dated 03.05.2016 filed by the defendant petitioner
under Section 10 of the Civil Procedure Code (Hereinafter referred
to as “CPC“) seeking stay of the trial in Money Suit No. 10 of
2003 till disposal of Title Suit No. 1566 of 2001 filed by the
petitioner before the 8th Bench of City Civil Court at Kolkata.
3. Learned counsel for the petitioner submits that
petitioner has filed Title Suit No. 1566 of 2001 in the 8 th Bench of
City Civil Court at Kolkata seeking following reliefs:
(a) Declaration that the plaintiff had no obligation
to make payment of value of the said shares to the
defendant nos. 6 to 163 or any of them and that
with the payment of the value thereof to the
defendant no. 1 the plaintiff stood discharged of all
his obligations as broker / dealer involved in the
sale of the same.
(b) A decree of perpetual injunction restraining the
defendants and particularly the defendant nos. 6 to
163 or any of them from either representing or
holding out that they or any of them are entitled to
the value of the said shares or any part or portion
thereof from the plaintiff or from claiming or
seeking to realize the same or any part or portion
thereof from the plaintiff.
(c) Temporary injunction.
4. The case of the petitioner is that he has been
carrying on business as a stock and share broker and dealer in the
name and style of “M.L. Sureka” through his registered firm. On
the request of defendant no. 1, the petitioner agreed to transact in
the shares of Indian Oil Corporation. The defendant nos. 6 to 163
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were the registered shareholders of equity shares of Indian Oil
Corporation who sold their shares during the period of December
1999 to March 2000 through defendant nos. 2 to 4, who in turn
sold the shares to defendant no. 3 which was further sold to
defendant no. 1, who had transacted the same through the firm of
the petitioner and sold to shares to defendant no. 5 in National
Stock Exchange and received the share scripts along with signed
transfer deeds from defendant no. 1 and delivered them to
defendant no. 5 and made all the payment to defendant no. 1 by
A/C payee cheques and also by way of account adjustments. The
petitioner never dealt with defendant nos. 6 to 163 directly and
claimed that there was no privity of contract between the petitioner
and defendant nos. 6 to 163 who sold their shares to Ram Sagar
Singh, defendant no. 2. Petitioner made the payments through the
bank and he claimed that he was not liable to any further payment
as he was under no obligation to pay any amount to any of the
defendants in respect of their shares as his liability stands
discharged. All the payments were made to defendant no. 1
through whom the transaction was made.
5. During pendency of Title Suit No. 1566 of 2001,
the petitioner filed an application under Order 39 Rule 1 and 2
read with Section 151 of the CPC and till 19.10.2001, the learned
trial Court directed both the parties to maintain status quo in
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respect of claiming the value of the shares in dispute. The plaintiff
for Money Suit No. 10 of 2003 is the defendant no. 9 in Title Suit
No. 1566 of 2001 and on 11.07.2003, he along with some of the
defendants filed an application under Order 39 Rule 4 of the CPC
for vacating the interim stay order and dismissing the injunction
application. But the said petition was dismissed by the learned trial
Court on 03.01.2005. The interim injunction which was effective
till 19.10.2001 was extended till the disposal of injunction
application. In Money Suit No. 10 of 2003, the plaintiff of the said
case who was the original respondent no. 1, claimed that defendant
/ defendants were liable to make the payment of the consideration
amount mentioned in the Schedule 1 of the plaint, i.e., Rs.
1,44,000/- (Rupees one lakh and forty-four thousand only) along
with interest, which came to Rs. 1,88,880/- (Rupees one lakh
eighty-eight thousand eight hundred and eighty only). This amount
was claimed for sale of 1200 equity shares of Indian Oil
Corporation through the defendants.
6. Meanwhile, petitioner filed an application on
05.12.2006 under Section 10 of the CPC to stay the proceedings of
Money Suit No. 10 of 2003 till disposal of Title Suit No. 1566 of
2001 claiming that both the suits dealt with identical subject
matter between the same parties.
7. Learned counsel for the petitioner did not turn up
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for pressing this petition, the said petition was dismissed on
14.09.2010. Another application was moved on 29.01.2013
seeking leave of the Court to press his earlier application, but the
said petition was also dismissed. In these facts and circumstances,
the petitioner filed another petition on 03.05.2016, but the said
petition filed under Section 10 of the CPC was dismissed on
06.03.2017 and against this order, the petitioner has approached
this Court.
8. Learned counsel for the petitioner submits that the
impugned order is not sustainable as it has been passed
mechanically and without application of judicial mind. The
learned trial Court of Sub-Judge-VI, Begusarai did not consider
the fact that plaintiff of Money Suit No. 10 of 2003 has been
restrained by the order of the competent Court at Kolkata from
proceeding the matter of claim of his shares. Learned counsel
further submits that since in the Title Suit No. 1566 of 2001,
subject matter is the same and the plaintiff for Money Suit No. 10
of 2003 is also a defendant in the said case in the Title Suit No.
1566 of 2001, the subsequent suit could not proceed. The
petitioner has claimed in the Title Suit No. 1566 of 2001 that he is
not under any obligation to make payment to the defendant
respondents since he has already made the payment and if the suit
is decreed, the same would operate as res judicata against the
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claim of the respondent 1st set in Money Suit No. 10 of 2003.
9. Learned counsel further submits that since the
parties are same and subject matter is also same, any subsequent
suits could not be allowed to proceed and therefore the learned
trial Court erred in rejecting the application of the petitioner by the
impugned order.
10. Learned counsel for the petitioner further submits
that so far as other defendants not being parties in the present case
is concerned, complete identity of either the subject matter or the
parties is not required for application of Section 10 of the CPC and
relied on the Division Bench decision of the Kolkata High Court in
the case of Shorab Merwanji Modi & Anr. v. Mansata Film
Distributors & Anr. reported in AIR 1957 CAL 727.
11. Learned counsel appearing on behalf of
respondent 1st set vehemently contended that there is no infirmity
in the impugned order. Learned counsel submits that petitioner has
twice approached the learned trial Court with same prayer and
both the applications were rejected. On similar contention, the
present petition has been rightly rejected by the learned trial Court.
Learned counsel further submits that the petitioner is a share
broker and when the respondent 1 st set pledged his share for sale,
he did not receive any payment by the petitioner or any of the
defendants. He further submits that issue in Title Suit No. 1566 of
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2001 pending before the Court of Civil Judge, Kolkata is different
from the Money Suit No. 10 of 2003 and therefore the learned trial
Court has rightly rejected the application filed by the petitioner
under Section 10 of the CPC. Learned counsel further submits that
the learned trial Court has also taken note of the fact that the
present case has been running since the year 2003 and all the
witnesses have been produced by the plaintiff and the matter has
been fixed for evidence of defendant but even after lapse of about
22 years, the defendant did not examine a single witness and in
order to delay the disposal of the Money Suit, he has filed repeated
applications under Section 10 of the CPC to stay the proceeding in
the garb of pendency of Title Suit No. 1566 of 2001. Learned
counsel further submits that even after filing of Title Suit by the
petitioner in the year 2001 and by the respondent in Money Suit by
the year 2003 due to the conduct of the petitioner, both the suits
are stuck and have not proceeded further, though in their suit, the
respondent 1st set has examined all their witnesses.
12. I have given my thoughtful consideration to the
rival submissions of the parties and also perused the record.
13. Section 10 of the CPC reads as under:
“10. Stay of suit .-
No Court shall proceed with the trial of any
suit in which the matter in issue is also
directly and substantially in issue in a
previously instituted suit between the same
parties, or between parties under whom they
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title where such suit is pending in the same or
any other Court in [India] having jurisdiction
to grant the relief claimed, or in any Court
beyond the limits of [India][Substituted by Act
2 of 1951, Section 3, for ” the
States”.]established or continued by [the
Central Government][Substituted by A.O.
1937, for ” the G.G. in C.”.][* * *][The words
” or the Crown Representative” omitted by
A.O. 1948.]and having like jurisdiction, or
before [the Supreme Court][Substituted by
A.O. 1950, for ” His Majesty in Council”.].
Explanation.-The pendency of a suit in a
foreign Court does not preclude the Courts in
[India][Substituted by Act 2 of 1951, Section
3, for ” the States”.]from trying a suit founded
on the same cause of action.”
14. Coming back to the facts of the case, in Title Suit
No. 1566 of 2001, the petitioner has been claiming that he is not
liable to make payment of any money to the defendants who
pledged their shares through the petitioner since he has already
made the payment and has sought declaration to that effect. The
suit had been instituted against altogether 163 defendants. On the
other hand in Money Suit No. 10 of 2003, only six persons have
been made defendants who are the plaintiff of Title Suit No. 1566
of 2001 and the first five defendants. Evidently, the parties in these
two Suits are not the same. The plaintiff in Title Suit No. 1566 of
2001 has sought declaration that plaintiff had no obligation to
make payment of the value of these shares to defendant nos. 6 to
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163 and his liability stands discharged with the payment of the
value thereof to the defendant no. 1. Apart from seeking a decree
of the perpetual injunction restraining the defendants and
particularly the defendant nos. 6 to 163 from claiming that they are
entitled to the value of the said shares. The case of respondent nos.
1.1 and 1.2 on the other hand in Money Suit No. 10 of 2003 is not
only against the plaintiff of Title Suit No. 1566 of 2001, but also
against defendants / respondent nos. 2 to 6 for making payment of
the consideration amount mentioned in Schedule 1 of the plaint,
which is the value shares as well as the interest amount accruing
due to non-payment. Therefore, the subject matter is not identical
and the parties in two Suits are not the same. Reference could be
made to paragraph no. 8 of the decision of the Hon’ble Supreme
Court in the case of National Institute of Mental Health & Neuro
Sciences v. C. Parameshwara, reported in (2005) 2 SCC 256,
which reads as under:
“8. The object underlying Section 10 is to
prevent Courts of concurrent jurisdiction from
simultaneously trying two parallel suits in
respect of the same matter in issue. The object
underlying Section 10 is to avoid two parallel
trials on the same issue by two Courts and to
avoid recording of conflicting findings on
issues which are directly and substantially in
issue in previously instituted suit. The language
of Section 10 suggests that it is referable to a
suit instituted in the civil Court and it cannot
apply to proceedings of other nature instituted
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10 is to prevent Courts of concurrent
jurisdiction from simultaneously trying two
parallel suits between the same parties in
respect of the same matter in issue. The
fundamental test to attract Section 10 is,
whether on final decision being reached in the
previous suit, such decision would operate as
res-judicata in the subsequent suit. Section 10
applies only in cases where the whole of the
subject matter in both the suits is identical. The
key words in Section 10 are “the matter in issue
is directly and substantially in issue” in the
previous instituted suit. The words “directly and
substantially in issue” are used in contra-
distinction to the words “incidentally or
collaterally in issue”. Therefore, Section 10
would apply only if there is identity of the
matter in issue in both the suits, meaning
thereby, that the whole of subject matter in both
the proceedings is identical.”
Therefore, it is apparent that Section 10 of the CPC
will be applicable and subsequent Suits can be stayed if the parties
are same and whole of the subject matter is also identical in both
the Suits. Apparently, the facts of the case do not show such
similarity between the two Suits. Therefore, Section 10 of the CPC
will not be applicable for staying the Money Suit No. 10 of 2003.
15. Further, facts which need to be taken note of that in Title Suit
No. 1566 of 2001, admittedly, the Suit has not proceeded as in
inch further and not even issues have been framed. Even the
application for injunction has been pending, though the learned
trial Court passed some status quo order till the disposal of the
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injunction application, which prima facie appears absurd as the
plaintiff got the final relief by way of such injunction order. On the
other hand, in Money Suit No. 10 of 2003, the evidence of plaintiff
has concluded and the matter is fixed for evidence of defendant /
petitioner herein. The petitioner repeatedly filed applications
seeking stay on the proceedings, but he purposely did not move or
did not press the same except the last one. The petitioner could not
be allowed to subvert the judicial proceeding to his advantage.
Moreover, the procedural law is intended to facilitate the
administration of justice and not to obstruct it. The Hon’ble
Supreme Court in the case of State of Gujarat v. Ramprakash P.
Puri & Ors. and State of Gujarat v. Satu Khayaldas & Ors.,
reported in 1969 (3) SCC 156, held that procedure has been
described to be a hand-maid and not a mistress of law, intended to
subserve and facilitate the cause of justice and not to govern or
obstruct it. Therefore, in the given facts and circumstances, the
impugned order could not be faulted.
16. In light of discussion made herein before, I find
no error in jurisdiction on part of the learned trial Court in passing
the impugned order dated 06.03.2017 and hence, the said order is
affirmed.
17. Accordingly, the present petition stands
dismissed.
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18. Since, the Money Suit No. 10 of 2003 has been
pending before the learned trial Court for more than twenty-two
years, learned trial Court is directed to proceed in the matter
showing urgency and dispose it off at the earliest and preferably
within six months from the date of receipt / production of a copy
of this order.
(Arun Kumar Jha, J)
Shahnawaz/-
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