RAMENDRA MOHAN DATTA, J.

( 1 ) THIS appeal arises from the judgment and order passed by S. Mukharji,, J. dated September 14, 1977 in which the learned Judge has made no order on the stay application under Section 10 of the Civil P. C.

( 2 ) THE prior suit was instituted in the Court of the Subordinate Judge at Machili-patnam in Andhra Pradesh by Challapalli Sugars Ltd. against the respondent above named, inter alia, for the payment of the balance price of sugar sold. The goods were delivered to the carriers. While in the custody of the carriers the goods were destroyed by fire which broke out on April 16, 1974.

( 3 ) THE Calcutta suit was filed by Swadeshi Sugar Supply Pvt. Ltd. the defendant in the Andhra Suit at a later point of time, inter alia, for refund of the price paid to the plaintiff in the Andhra Suit on account of the very same goods under the same contract. In the Calcutta suit it is contended that the said goods had not been delivered although the same were paid for. It is the case of the plaintiff in the Calcutta Suit that the said goods should have been delivered even prior to the said April 16, 1974 being the date when the said goods were destroyed by fire. One of the questions to be determined in both the suits is whether the property in the said goods had or had not passed to the plaintiff in the Calcutta Suit.

( 4 ) THE plaintiff in the Calcutta Suit filed its written statement in the Andhra Suit. It appears from the said written statement that the defendant Swadeshi Sugar Supply Pvt. Ltd. therein admitted that the transactions arose out of the same contract in respect whereof the cause of action of the plaintiff in the Andhra Suit was on account of price of goods sold and the defendant's cause of action, inter alia, was for refund of the amount paid in advance. In para 10 (n) the defendant in its said written statement in the Andhra Suit stated, inter alia, that the defendant had made a total payment of Rupees 18,20,937. 50 p. and the plaintiff had delivered goods to the defendant of the total value of Rs. 15,46,998. 75 p. being the value of 4176 bags of sugar at the agreed rate including the excise duty. Accordingly, the balance sum of Rs. 2,73,938. 75 p. became due and payable by the plaintiff to the defendant. It was stated therein that the "defendant reserved its right to realise the said balance sum besides the interest thereof and the loss of the defendant as suffered by reason of the failure of the plaintiff in not delivering the goods and/or forwarding the Lorry Receipts (L/rs) direct to the plaintiff by a separate suit".

( 5 ) MR. D. Ghosh appearing on behalf of the respondent Swadeshi Sugar Pvt. Ltd. contends that by reason of such reservation the said defendant has filed the present suit in Calcutta wherein a further question of damages on account of demurrage has been raised which such further question has not been raised by way of defence in the said Andhra Suit. Mr. Ghosh has referred to the plaint in the Calcutta Suit and particularly paras 30, 31 and 32 thereof whereby the claim of Rs. 53,844. 70 p. has been claimed by the plaintiff herein as damages suffered on account of demurrage which it had to pay to Savani Transports Pvt. Ltd.

( 6 ) READING the said averments in paragraph 10 (n) of the said written statement it would appear that the defendant therein specifically reserved its right to institute a separate suit wherein the entire defence was to be set out and the entire relief would also be claimed therein on behalf of the defendant. It is not correct to say that only the question of demurrage had been left open.

( 7 ) IN the matter of staying the suit under Section 10 the main consideration for the Court is whether or not the matter in issue in the subsequent suit which is sought to be stayed is directly and substantially in issue in the previously instituted suit. Admittedly the parties in both the suits are the same and both the Courts have unlimited pecuniary jurisdiction so

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