( 1 ) THIS order will dispose of defendant s application under section 10 of the Code of Civil Procedure, 1903 (for short "cpc") for stay of the suit on the ground that the matter in issue is directly and substantially in issue in the previously instituted suit between the same parties. For the sake of convenience, parties are here-in-after referred TO to as "plaintiff and defendant .

( 2 ) FACTS necessary for the disposal of this application are that on 31st July, 2001 plaintiff instituted a suit for recovery of Rs. 31,77,976. 71. pleading therein that in October, 2000 on the basis of sample shown by the representative of defendant company plaintiff orally placed an order for supply of 450 MTs of grams with the defendant through its representative. The payment of the goods to be supplied by the defendant company was agreed to be made after ten days from the date of delivery/loading as per practice prevailing in the market of Mumbai. In third week of October, 2000, the plaintiff placed another order with the defendant company through defendant s sales representative at Delhi on the existing terms and conditions for supply of 1500 MTs canadian Chick-peas (New Crop) @ Rs. 1511/- as per the approved sample. The defendant vide fax message dated 27th October, 2000 confirmed the order. The plaintiff received 20 containers between 1st November, 2000 to 25th november, 2000. The quantity and quality of the goods was not as per orders. The plaintiff received only 422. 72 MTs of goods, and 5 to 10% of goods were damaged. When this fact was brought to the notice of defendant, they reduced the price by Rs. 100/- per quintal as against plaintiff s demand of Rs. 200 per quintal. The plaintiff paid a sum of rs. 51,00,000/- to defendant company against the bill for rs. 64,20,379. 20 including railway freight. The balance amount was agreed to be settled with the defendant company after the arrival of goods against the second order of 1500 MTs of Candian Chick-peas (New Crop ). On 9th november, 2000 the defendant company without assigning any reason cancelled the order for supply of 1500 NTs Candian chick-peas ( New Crop) because of spurt in price of grams in the market. The plaintiff called upon the defendant to honour the agreement or in the alternative plaintiff would be compelled to buy the goods from the open market at the risk and cost of defendant company. It is alleged that the plaintiff had purchased 1500 MTs. grams from open market at Delhi and spent a sum of Rs. 2,74,92,976. 71, thereby, incurred loss of Rs. 31,77,976. 71 on account of illegal and arbitrary cancellation of order by the defendant. The plaintiff has also given details of earlier suit filed by the defendant for recovery of Rs. 28,80,100/- against the plaintiff on 21st November, 2000 pending in the court of Civil Judge, Senior Division, panvel (Maharashtra) which is being contested by the plaintiff. The relief sought in this suit is as under:

"it is, therefore, prayed that a decree for recovery of Rs. 31,77,976. 71 (Rupees thirty one lakhs seventy seven thousand nine hundred seventy six and paise seventy one only) on account of damages/compensation with costs and interests pendente-lite and future @ 24% from the date of institution of the suit till realization of the decreetal amount may please be passed in favour of the plaintiff company and against the defendant company. Any other order as deemed fit and proper in the circumstances of the case be also passed in favour of plaintiff company and against the defendant company. "

( 3 ) THE suit pending in this court would be here-in-after be REFERRED TO to as the "subsequent suit".

( 4 ) THE defendant company had instituted a suit against plaintiff for recovery of Rs. 28,80,100/- on or about 21st November, 2000 in the court of Civil Judge, senior Division, Panvel (Maharashtra) inter alia pleading, that in October, 2000 it was orally agreed between them, at its Khalapur Factory and defendant over telephone that t