The test to determine the applicability of section 10 of the Code of Civil Procedure, 1908 is whether the matter in the later suit will be res judicata if the prior suit is taken to have been decreed in the manner as prayed in the plaint.

( 1 ) THREE ladies viz. Ritupanaa Sengupta, Anjana Dalmia and Nitu S. Saini formed a company called Prism Entertainment Private Limited for making feature film. They entered into an agreement in January, 2003. By such agreement the company was formed. They became directors. They made a film called "alo" which was released. That time there was no dispute between them. They thereafter made a film called "eai Ki Sansar" which was re-titled as "bauma Zindabad". It further appears that all of them from time to time resigned from the Board of Directors subsequently. It is the case of the plaintiffs being the company, Ritupama Sengupta and Anjana Dalmia that the laboratory which was holding the rush print and film negative of the film refused to deliver the same even upon payment of the charges for developing the said film on the alleged ground of purported agreement dated August 1, 2003 by which one Ms. Meena Chowla the defendant No. 4 claimed a right of pledge on the film negative for payment of Rs. 35. 00 lacks together with interest thereon said to have been advanced to the company by account payee cheques.

( 2 ) IT was the case of the plaintiffs that the husband of Nitu S, Saini being the defendant No. 3 by misutilising his status as Chief Executive Officer did the mischief by executing pledge document in collusion and conspiracy with each other without knowledge and consent of the other directors and without any valid board resolution being had.

( 3 ) THE plaintiffs filed the instant suit in this Court, inter alia, claiming for cancellation of the purported documents including the agreement dated August 1, 2003 as well as mandatory order of injunction directing the defendant No. 1 being the film laboratory to forthwith release the film negative of Bauma zindabad and for other consequential reliefs.

( 4 ) THE defendant No. 5 filed a suit in Delhi High Court for recovery of the said sum of Rs. 35. 00 lacs said to have been lent and advanced to the company as well as for a declaration of the charge on the said film negative. The said suit was filed as against the plaintiffs herein as also the said Nitu Saini.

( 5 ) THE Delhi suit is a prior suit. Present applications :

( 6 ) THE defendant No. 1 as well as the defendant Nos. 2 and 3 jointly filed two separate applications under section 10 of the Code of Civil Procedure for stay of the above suit. Both the applications were heard by me on the above-mentioned date and are being disposed of by this judgment. Comparative study of both the plaints : calcutta Suit (i) All the parties in Delhi suit are also parties herein except Sri Sunil Saini the husband of Nitu Saini being the defendant no. 3. Delhi suit (i) The claim of the Delhi suit is based upon the agreement dated August 1, 2003. (ii) The payment of money was not expressly denied by the plaintiff. (ii) To establish the claim the plaintiff in the Delhi would not only have to establish the factum of payment but also the validity and existence of the agreement dated August 1, 2003. (iii) The factum of agreement dated August 1, 2003 was also not in dispute. The plaintiffs, however, prayed for cancellation of the said agreement dated August 1, 2003. Thus : if the suit is allowed to be heard the court has to go into the question of validity of the agreement dated august 1, 2003 and rights and obligations of the parties to the said agreement and would have to pronounce a judgment on the same. Special Feature :

( 7 ) IN Calcutta suit written statement was probably not filed at least my attention was not drawn to that extent. In Delhi suit written statement was filed which was annexed to the second application. On perusal of the written statement it appears that the same was nothing but verbatim reproduction of the Calcutta plaint.

( 8 ) LAW on the Subject: parties cited four decisions : (i) All India Reporter 1957, Calcutta, Page 727 (Shorab Merwanji Modi and anr. vs. Mansata Film Distributors and Anr.) (ii)