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

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