ANIL KUMAR SEN, J.

( 1 ) THIS is a revisional application at the instance of the defendant in Commercial Suit No. 336 of 1972 of the 10th Bench, City Civil Court, Calcutta. The order impugned is one dated August 10, 1983. By the order impugned the learned Judge has decided a preliminary issue against the defendant. That preliminary issue is to the effect as to whether the claim put forward in the present suit being Commercial Suit No. 336 of 1972 is barred by principles of res judicata in view of the decree passed in Money Suit No. 126 of 1972 by another court between the parties.

( 2 ) CERTAIN facts are not in dispute. The plaintiff I. S. P. Trading Company entered into an agreement on October 21, 1971, with the defendant to supply 300 pieces of E. R, W. Steel boiler tubes. The terms and conditions of the agreement were set out in the defendant's letter dated October 21. 1971. The plaintiff instituted Commercial Suit No. 336 of 1972 on the allegation that the plaintiff duly supplied the said 300 pieces of E. R. W. Steel boiler tubes according to specification and in accordance with the terms and conditions of the agreement, the plaintiff received only a sum of Rs. 6000/- by way of advance. But the defendant failed and neglected to pay the balance value of the goods so supplied in spite of the fact that the bills were duly submitted therefor. Adjusting the said advance of Rs. 6000/- against the total value of the goods assessed at Rs. I3,287/- the plaintiff sought for a decree for Rs. 7,287/-together with interest amounting to Rupees 655/75. This suit was filed in the City Civil Court, Calcutta.

( 3 ) THE defendant, on the other hand, filed Money Suit No, 126 of 1972 in the Court of the learned Subordinate Judge, Gopalganj against the present plaintiff for a decree for a sum of Rs. 7135/ -. The said claim was laid on the ground that the defendant advanced a sum of Rs. 6000/- on the self same contract dated October 21, 1971, but in breach of that contract the present plaintiff supplied goods which were not m accordance with the specification nor in terms of the agreement between the parties. The defendant called upon the plaintiff to inspect the tubes rejected by them and to get them satisfied that the tubes supplied were not in accordance with the specification, but the said request was overruled wrongfully. Accordingly the defendant claimed that by rescinding the contract the defendant was entitled to get refund of the advance of Rs. 6000/- together with interest and cost of the transportation. The total figure was arrived at by adding Rs. 6000/- as the advance to be refunded with Rs. 572/- by way of interest and Rs. 563/- towards the cost.

( 4 ) ON the respective pleadings it is quite obvious to us that the two suits are not only between the same parties but also involve substantially one common issue as to whether the plaintiff had supplied tubes in accordance with the agreement or not and whether the defendant was within his rights to rescind the contract the goods not being supplied in accordance with the agreement. The two suits, in our opinion, should not have been allowed to proceed simultaneously in the two courts, but unfortunately no steps were taken by either of the parties to stay either of the suits. Now in the suit filed by the defendant at Gopalganj the present plaintiff did appear and filed written statement. After having contested the suit for some time the plaintiff withdrew himself and that suit ended in a decree in favour of the present defendant on July 14, 1982. According to the defendant, that decree is now under execution.

( 5 ) AT this stage when Commercial Suit No. 336 of 1972 came up for hearing before the learned Judge at the City Civil Court, Calcutta the defendant very legitimately raised an objection to the effect that the present suit can no longer proceed being barred by principles of res judicata in view of the ex parte decree passed in Gopalganj suit. This issue has been disposed of by

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