ORDER :

1. Challenge in this writ petition is to the impugned order dated 29.01.2021 passed by the 2nd Civil Judge, Class-I, Rajnandgaon in Civil Suit No.8B of 2018, rejecting application filed under Section 10 of the CPC by petitioner/defendant.

2. Shri Ankit Singhal, learned counsel for the petitioner would submit that petitioner is a registered Company and manufacturer of drippers, used for drip irrigation. Respondent-1 is a dealer, based at Rajnandgaon, CG, who purchased drippers from petitioner through various consignments. Total sale amount was Rs.10,42, 368/-, out of which respondent-1/dealer paid only Rs.7,45,568/- to petitioner and has not paid Rs.2,96,800/- even after several reminders. This made the petitioner to file a Civil Suit, which is pending before the Civil Judge, Senior Division, Kashipur, District Udham Singh Nagar, Uttarakhand, for consideration. Upon receiving notice, respondents-1/plaintiff appeared before the Civil Court at Kashipur and submitted written statement vide Annexure P34. After submission of written statement to suit of the petitioner, respondent-1/plaintiff also filed Civil Suit before the Court at Rajnandgaon seeking relief of damages of Rs.9,60,000/- on 05.03.2018. Cause of action for filing of Civil Suit as appearing from plaint is, consignment of supply of goods by petitioner to respondent-1 in between 10.06.2015 to 20.08.2016 of the value of Rs.10,05,000/-, further pleaded that the goods were of inferior quality and having its total value of Rs.1,60,800/- only, claimed Rs.9,60,000/- towards damages. It is contended that after receiving notice of suit filed by respondent-1 which is subsequent one, petitioner moved an application under Section 10 of the CPC before the Court at Rajnandgaon, for staying the proceeding of the suit, which came to be dismissed by impugned order. He contended that in written statement filed by respondent-1 before the Court at Kashipur in Civil Suit filed by the petitioner, there is specific admission of withholding amount of Rs.2,96,800/- on the ground that in the business transaction, petitioner supplied consignment of goods of inferior quality due to which, respondent-1 suffered loss of Rs.9,60,000/-. He pointed out that pleading made in written statement in earlier suit before Court at Kashipur as well as Civil Suit filed by respondent-1 before the Court at Rajnandgaon are one and the same. If Civil Suit filed by the petitioner is decided based on finding recorded by trial Court at Kashipur considering the written statement of respondent-1, then, it will apply as resjudicata to the subsequent Civil Suit filed by respondent-1/plaintiff. Learned trial Court has not considered that issue involved in suit filed by respondent at Rajnandgaon subsequently, is directly and substantially in issue involved in previously instituted suit, hence, subsequent suit filed by the respondent/plaintiff is to be stayed under provisions of Section 10 of CPC. In support of his contention, he placed reliance on judgment passed by Supreme Court in case of Aspi Jal and another Vs. Khushroo Rustom Dadyburjor reported in (2013) 4 SCC 333. He also pointed out that learned Court below dismissed application under Section 10 of the CPC, considering that parties to the suit are not one and the same as in the earlier suit, which is also not sustainable in the facts of the case. He pointed out that defendant-2 in the plaint filed by respondent-1 before the Court at Rajnandgaon is an employee of the petitioner/defendant-1. Defendant-2/respondent-2 added is only a nominal/proforma party in the suit, hence it cannot be said that parties to the subsequent suit filed by respondent1 are not the same parties as in previous suit. Petitioner/defendant-1 is only the contesting party in the subsequent suit also. In support of his contention, he places reliance upon judgment of Division Bench of High Court of Calcutta in case of Shorab Merwanji Modi and others Vs Mansata Film Distributors and others repor