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2013 Supreme(Raj) 337
SUPREME COURT OF INDIA
S.B.I. Vs. Gracure Pharmaceuticals Ltd. (Radhakrishnan, J.)
HON'BLE K.S. RADHAKRISHNAN, J.
HON'BLE A.K. SIKRI, J.
State Bank of India
Versus
Gracure Pharmaceuticals Ltd.
Civil Appeal Nos. 10531-10532 of 2013 (@ Special Leave Petition (C) Nos.5945-5946 of 2009), decided on 22.11.2013
Sanjay Kapoor, for Appellant;
Dr. Kailash Chand, for Respondent
Headnote:C.P.C., Order 2 Rule 2, Order 7 Rule 11 — Bar to second suit — First suit for recovery of amount and subsequent suit for damages filed against appellant bank and its officers — No fresh cause of action arose between first suit and second suit — Respondent is not entitled to split the cause of action into parts by filing separate suits that respondent had omitted certain reliefs which were available to him at the time of filing of the first suit and after having relinquished the same it cannot file a separte suit in view of provisions of Order 2 Rule 2 C.P.C.
Appeal allowed. (Paras 11, 12, 15, 16)
fl-iz-la-] vkns'k 2 fu;e 2] vkns'k 7] fu;e 11 & f}rh; okn dk otZu & igyk okn jkf'k dh olwyh gsrq o nwljk okn uqdlku gsrq vihykFkhZ cSad vkSj mlds vf/kdkfj;ksa ds fo:) nk;j fd;k x;k & izFke okn o f}rh; okn ds e/; dksbZ u;k okn gsrq mRiUu ugha gqvk & i`Fkd i`Fkd okn nk;j djds izR;FkhZ VqdM+ksa esa foHkkftr okn gsrq dk gdnkj ugha fd izR;FkhZ us dfri; vuqrks"k dks NksM+ fn;k Fkk tks mls izFke okn nk;j djus ds le; miyC/k Fks vkSj mudk R;kx djus ds ckn og fl-iz-la- ds vkns'k 2 fu;e 2 ds izko/kkuksa dh n`f"V ls i`Fkd okn nk;j ugha dj ldrkA ¼in la[;k 11] 12] 15] 16½
vihy Lohdkj dhA
2. We are, in this case, concerned with the applicability of Order 2 Rule 2 of the Code of Civil Procedure (for short “the CPC”) in respect of two suits filed by the respondent, one in the Original side of the Delhi High Court and another before the District Court, Delhi. Original Suit No.1145 of 2003 was filed by the respondent herein on 15.05.2003 for recovery of an amount of Rs.44,30,994 against the appellant bank and its officers towards the amount of Letter of Credit issued by Credit Du Nord, Paris (CDN) and towards interest for the delay in receipt of payment from BNP – Paribas S.A., Ivry-Sur-Scine (BNP) with cost pendente lite and future interest @ 18% per annum.
3. Suit No.288/03/04 of 2003 was also filed by the respondent on 21.05.2003 claiming damages of Rs.3,09,000/- with cost and pendente lite and future interest @ 18% per annum against bank and its officers for withdrawing credit facility on 23.03.2002. Notice was issued to the bank and its officers by the District Court, Delhi.
4. The bank and its officers then filed an application under Order 7 Rule 11 CPC in Suit No.288/03/04 of 2003 before the District Court, Delhi for rejection of the plaint in the suit for damages on the ground that the same is barred by the provisions of Order 2 Rule 2 CPC. The District Court elaborately heard the matter and after perusing the plaints, averments in both the suits as well as the reliefs sought for, came to the conclusion that the cause of action in both the suits was same and the relief sought for in Suit No.288/03/04 of 2003 could have been claimed by the plaintiff in the Suit No.1145 of 2003 filed before the Delhi High Court. The application under Order 7 Rule 11 was, therefore, allowed, holding that the latter suit was barred under Order 2 Rule 2, CPC and plaint was accordingly rejected.
5. The respondent, aggrieved by the said order, filed RFA No.490 of 2006 before the Delhi High Court. The High Court took the view that the earlier suit No.1145 of 2003 was founded on cause of action pertaining to the contract between the parties and the second Suit No.288/03/04 of 2003 was on entirely different footing, being the malicious action of the officers of the bank to withdraw the credit facility because of their animus emanating from the action of the respondent to lodge a complaint before the Ombudsman Banking. Holding so, the appeal was allowed and the order dated 10.05.2006 of the District Court was set aside. Challenging the abovementioned order these appeals have been filed by the State Bank of India.
6. Shri C.U. Singh, learned senior counsel appearing for the bank submitted that the High Court has failed to consider the scope of Order 2 Rule 2, CPC and committed a mistake in holding that the respondent could not have claimed the relief of damages in Suit No.1145 of 2003, the earlier suit filed before the High Court. Learned senior counsel submitted that the respondent, on the date of filing of the earlier suit, was aware that the bank had declined to grant any further credit facility, in the event of which, the respondent could have sought the relief for damages against the bank and its officers in the earlier suit. Learned senior counsel submitted that, having omitted to claim such a relief in the earlier suit, the Court ought to have held that the respondent had relinquished its claim and is estopped from preferring a second suit in view of the provisions of Order 2 Rule 2, CPC. Learned senior counsel also submitted, what is required is, that every suit shall hold whole of the claim arising out of one and the same cause of action and it was obligatory on the part of the respondent to raise the whole claim at the time of institution of the first suit. Learned senior counsel placed reliance on the Judgments of this Court in Deva Ram and another vs. Ishwar Chand and another (1995) 6 SCC 733 and Sandeep Polymers (P) Ltd. vs. Bajaj Auto Ltd. and others (2007) 7 SCC 148.
7. The respondent f
