Or.2 rule 2 of C.P.C- when there is possibility of filing one suit for two reliefs and when there is no proper explanation for filing two suits on the same cause of action, Or.2 rule 2 certainly bars the second suit - Two suits on the same cause of action for non-issuing of ICO STAMPS , the plaintiff sustained huge loss on different dates - though the claims in both suit are for different amounts but the cause of action is one and same , Trial court dismissed the later suit but high court partly allowed the suit claim - Apex court held that we are of the opinion that suits should have been merged with the claims against coffee purchased between July 25,1982 and September 8, 1982, (a period arising from the merging of the two periods claimed in the suits wherein eight days overlapped each other) clubbed together in the same suit from which two reliefs, first being the losses due to delayed shipment and second being the costs and losses arising due to the recall of the shipment, could have been claimed. In the present factual matrix both the reliefs are being claimed separately in the two concerned suits. This scenario negates the principle of Order 2, Rule 2 in absence of any explanation as to why the respondent failed to claim the relief by way of a single suit when the cause of action was the same in the both. Therefore, we are of the opinion that the Trial Court in its judgment dated March 17, 2005 correctly held that in light of O.S. No. 3150 of 1985 the present suit is barred under Order 2 Rule 2 of the Code.In view of the aforesaid discussion, we find that the High Court has misappreciated the facts in the light of Order 2 Rule 2 of the Code and thereby the reasoning of the High Court cannot be sustained in the eye of law. The said suit (O.S.No.4763 of 1986) is barred. Considering the facts, as discussed above, we set aside the judgment and order of the High Court and uphold the order of the Trial Court. Accordingly, the present appeal is allowed and the suit of the respondent is dismissed.=
the respondent filed two suits against the appellant Board
in the Court of City Civil Judge, Bangalore, one being O.S. No.3150 of
1985 praying for a decree of Rs.5,32,012.31 p. with interest at the rate
of 19% per annum and costs of the suit and another suit being O.S. No.
4763 of 1986 praying for a decree of Rs.11,70,446.39 p. with interest at
the rate of 19% per annum and costs of the suit.
However, the other suit being O.S. No. 4763 of 1986
was dismissed by the Trial Court by judgment dated March 17, 2005 and
aggrieved thereby, the respondent filed R.F.A. No.1033 of 2005 before
the High Court of Karnataka. After considering the submissions of both
the parties, the High Court partly allowed the regular first appeals.=
In both the suits the fact required to be proved by the respondent
(being the plaintiff therein), to succeed in its claims was that on
account of the failure of the appellant (being the defendant) to provide
the required ICO stamps as assured by it, the respondent had to suffer
losses. The two separate reliefs claimed by the respondent are dependent
on the same fact being the omission of duty by the appellant. The grounds
of disparity in the suits are the amount of coffee and the dates when the
same was purchased, however it must be noted that the period between
August 11, 1982 and August 18, 1982 is common to both the suits and there
are no specific pleadings differentiating the same. Furthermore, the
suits were filed within a span of nine days of each other.
20. In the light of the above, we are of the opinion that suits should have
been merged with the claims against coffee purchased between July 25,
1982 and September 8, 1982, (a period arising from the merging of the two
periods claimed in the suits wherein eight days overlapped each other)
clubbed together in the same suit from which two reliefs, first being the
losses due to delayed shipment and second being the costs and losses
arising due to the recall of the shipment, could have been claimed.
21. In the present factual matrix both the reliefs are being claimed
separately in the two concerned suits. This scenario negates the
principle of Order 2, Rule 2 in absence of any explanation as to why the
respondent failed to claim the relief by way of a single suit when the
cause of action was the same in the both. Therefore, we are of the
opinion that the Trial Court in its judgment dated March 17, 2005
correctly held that in light of O.S. No. 3150 of 1985 the present suit is
barred under Order 2 Rule 2 of the Code.
22. In view of the aforesaid discussion, we find that the High Court has
misappreciated the facts in the light of Order 2 Rule 2 of the Code and
thereby the reasoning of the High Court cannot be sustained in the eye of
law. The said suit (O.S.No.4763 of 1986) is barred. Considering the
facts, as discussed above, we set aside the judgment and order of the
High Court and uphold the order of the Trial Court. Accordingly, the
present appeal is allowed and the suit of the respondent is dismissed.
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41536
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5527 OF 2014
(Arising out of SLP (C) No.26157 of 2012)
Coffee Board .…
Appellant
versus
M/S. Ramesh Exports Pvt. Ltd. ....Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. This appeal is preferred against the judgment and order dated December
19, 2011 passed by the High Court of Karnataka at Bangalore in Regular
First Appeal No.1033 of 2005 partly allowing the appeal filed by the
respondent herein and partly decreeing the Original Suit being O.S. No.
4763 of 1986 filed by the respondent being the original plaintiff. The
said original suit was dismissed by a judgment and decree dated March 17,
2005.
3. Pre-liberalization, till 1996 all the coffee grown in India was pooled
with the appellant-Board which is a statutory body under the Coffee Act,
1942. The appellant-Board (hereinafter referred to as “Board”) marketed
the pooled coffee and distributed the net realization to the growers in
proportion the quantity pooled by them. The Board marketed the pooled
coffee by means of auctions and separate auctions were held for export
and domestic market. Only registered exporters are allowed to participate
in the said auctions and the successful bidders amongst them enter into
contracts with the Board for the purchase of the coffee. The Board is a
member of the International Coffee Organization (hereinafter referred to
as “ICO”) which is the main intergovernmental organization controlling
and regulating the global coffee export and import. Majority of the
coffee growing and consuming countries are members of the ICO. The import
and export of coffee is regulated by ICO by fixing quotas on the member
countries in accordance with the quantum produced. As per the then
International Coffee Agreement of 1983 the export quota system was
supported by an obligatory system of controls. Each export by a Member
was covered by a Certificate of Origin. Importing Members did not admit
coffee from Members unless the Certificate was validated by coffee export
stamps issued by the Organization. When quotas were in effect importing
Members were required to limit their imports from non-members and exports
to non-members were closely monitored.
4. Accordingly, India being a member of ICO through the Board was subject
to the same agreement and as per the fixed quota for exporting coffee the
Board received stamps from ICO for each quarter through State Bank of
India. Thus, the Board subject to ICO rules and regulations regulated the
coffee production and marketing in India by accordingly distributing
stamps to the exporters who had successfully purchased coffee from the
auctions. The respondent M/s. Ramesh Exports Pvt. Ltd. being the original
plaintiff was registered with the Board as an exporter during the coffee
year October 1, 1981 to September 30, 1982.
5. In this backdrop, the facts leading to the present appeal are as under:
1. On August 24, 1980, the appellant Board sent the ‘Terms and Conditions
of Sale of Coffee in the Course of Export’, after amendment of certain
clauses, to all the registered exporters of coffee. On October 9, 1980
the appellant Board issued a Circular regarding introduction of Coffee
Export stamp system for export of coffee to member importing countries
of ICO from November 1, 1980. The respondent purchased coffee at the
export auction. The respondent shipped 230.4 tonnes of coffee to USA and
Germany who were members of ICO, on 1st, 2nd and 3rd September, 1982
without valid ICO certificate of origin. On September 22, 1982, the
respondent wrote to the appellant Board requesting for ICO stamps for
export of 230.4 tonnes of coffee and on September 29, 1982, the
respondent wrote to the appellant Board for issue of necessary
permit/authority to re-import 230.4 tonnes of coffee into India. The
appellant Board issued a show cause notice to the respondent alleging
that the respondent has committed breach of terms of ICO Agreement by
making false statement. The respondent replied to the show cause notice.
Thereafter, the respondent filed two suits against the appellant Board
in the Court of City Civil Judge, Bangalore, one being O.S. No.3150 of
1985 praying for a decree of Rs.5,32,012.31 p. with interest at the rate
of 19% per annum and costs of the suit and another suit being O.S. No.
4763 of 1986 praying for a decree of Rs.11,70,446.39 p. with interest at
the rate of 19% per annum and costs of the suit. The appellant Board
resisted the suits and denied the claims made by the respondent.
2. By judgment dated February 14, 2002, the Trial Court decreed O.S.
No.3150 of 1985 with costs and interest at 6% per annum. Aggrieved by
the judgment and decree dated February 14, 2002 passed by the Trial
Court, the appellant Board filed R.F.A. No.901 of 2002 before the High
Court of Karnataka. However, the other suit being O.S. No. 4763 of 1986
was dismissed by the Trial Court by judgment dated March 17, 2005 and
aggrieved thereby, the respondent filed R.F.A. No.1033 of 2005 before
the High Court of Karnataka. After considering the submissions of both
the parties, the High Court partly allowed the regular first appeals.
Aggrieved by the judgment and order dated December 19, 2011 passed by
the High Court of Karnataka at Bangalore in Regular First Appeal No.1033
of 2005, the appellant Board has come up before this Court.
6. The case of the appellant before us is based on two grounds. Firstly, it
has been contended by the learned counsel appearing for the appellant
that the High Court has incorrectly held that the Original Suit being
O.S. No.4763 of 1986 is not barred by the provisions of Rule 2 of Order 2
of the Code of Civil Procedure, 1908 (hereinafter referred to as “the
Code”). In support of the same, it has been submitted by the learned
counsel that the High Court incorrectly determined the above without
considering the specific pleadings in O.S. No.3150 of 1985 filed by the
respondent, as against the pleadings in the original suit being O.S.
No.4763 of 1986. It was further submitted that the High Court also did
not consider the cogent findings of the judgment dated March 17, 2005
passed by the Trial Court in O.S. No.4763 of 1986.
7. The second ground raised by the learned counsel for the appellant is on
merits wherein it has been contended that when the respondent by letter
dated September 29, 1982 agreed to re-import 230.4 tonnes of coffee into
India which was exported without ICO Stamps by them in haste and against
the ICO Regulations of which they were aware and which entailed in the
debarring of India from the membership of ICO, then they are estopped
from claiming any damages and costs being freight and other charges
arising due to the re-import.
8. Having heard the arguments advanced by the counsel appearing for the
parties and considering the documents on record in light of the averments
of the parties, we will first consider the procedural validity of the
original suit and would accordingly proceed with the merits.
9. It is the claim of the appellant being the original defendant in the
original suit being O.S. No.4763 of 1986 that the present suit is barred
by Order 2 Rule 2 of the Code. The said provision should be read in
context of Rule 1 of Order 2. The relevant rules are reproduced below for
ready reference:
“1. Frame of suit.—Every suit shall as far as practicable be framed so
as to afford ground for final decision upon the subjects in dispute
and to prevent further litigation concerning them.
2. Suit to include the whole claim.—(1) Every suit shall include the
whole of the claim which the plaintiff is entitled to make in respect
of the cause of action; but a plaintiff may relinquish any portion of
his claim in order to bring the suit within the jurisdiction of any
court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim,
he shall not afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to
more than one relief in respect of the same cause of action may sue
for all or any of such reliefs; but if he omits, except with the leave
of the court, to sue for all such reliefs, he shall not afterwards sue
for any relief so omitted.”
10. The above rules are offshoots of the ancient principle that there
should be an end to litigation traced in the Full Bench decision of the
Court in Lachmi vs. Bhulli[1] and approved by this Court in many of its
decisions. The principle which emerges from the above is that no one
ought to be vexed twice for the same cause. In light of the above, from a
plain reading of Order 2 Rule 2, it emerges that if different reliefs and
claims arise out of the same cause of action then the plaintiff must
place all his claims before the Court in one suit and cannot omit one of
the reliefs or claims except without the leave of the Court. Order 2 Rule
2 bars a plaintiff from omitting one part of claim and raising the same
in a subsequent suit. (See: Deva Ram & Anr. vs. Ishwar Chand & Anr.[2]).
Furthermore, this Court in Alka Gupta v. Narender Kumar Gupta[3] stated
that:
“The object of Order 2 Rule 2 of the Code is twofold. First is to
ensure that no defendant is sued and vexed twice in regard to the same
cause of action. Second is to prevent a plaintiff from splitting of
claims and remedies based on the same cause of action. The effect of
Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier
claimed certain remedies in regard to a cause of action, from filing a
second suit in regard to other reliefs based on the same cause of
action. It does not however bar a second suit based on a different and
distinct cause of action.”
11. The bar of Order 2 Rule 2 comes into operation where the cause of
action on which the previous suit was filed, forms the foundation of the
subsequent suit; and when the plaintiff could have claimed the relief
sought in the subsequent suit, in the earlier suit; and both the suits
are between the same parties. Furthermore, the bar under Order 2 Rule 2
must be specifically pleaded by the defendant in the suit and the Trial
Court should specifically frame a specific issue in that regard wherein
the pleading in the earlier suit must be examined and the plaintiff is
given an opportunity to demonstrate that the cause of action in the
subsequent suit is different. This was held by this Court in Alka Gupta
v. Narender Kumar Gupta (supra) which referred to decision of this Court
in Gurbux Singh vs. Bhooralal[4] wherein it was held that:
“6. In order that a plea of a bar under Order 2 Rule 2(3) of the
Civil Procedure Code should succeed the defendant who raises the plea
must make out: (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based; (2) that
in respect of that cause of action the plaintiff was entitled to more
than one relief; (3) that being thus entitled to more than one relief
the plaintiff, without leave obtained from the court omitted to sue
for the relief for which the second suit had been filed. From this
analysis it would be seen that the defendant would have to establish
primarily and to start with, the precise cause of action upon which
the previous suit was filed, for unless there is identity between the
cause of action on which the earlier suit was filed and that on which
the claim in the later suit is based there would be no scope for the
application of the bar.”
12. The Courts in order to determine whether a suit is barred by Order 2
Rule 2 must examine the cause of action pleaded by the plaintiff in his
plaints filed in the relevant suits (See: S. Nazeer Ahmed v. State Bank
of Mysore & Ors.[5]). Considering the technicality of the plea of Order 2
Rule 2, both the plaints must be read as a whole to identify the cause of
action, which is necessary to establish a claim or necessary for the
plaintiff to prove if traversed. Therefore, after identifying the cause
of action if it is found that the cause of action pleaded in both the
suits is identical and the relief claimed in the subsequent suit could
have been pleaded in the earlier suit, then the subsequent suit is barred
by Order 2 Rule 2.
13. In the present case we have found the first suit is claimed to be O.S.
No. 3150 of 1985 and the subsequent suit is claimed to be O.S. No.4763 of
1986. The first suit was filed by Ramesh Enterprises which is admitted to
be the Coffee Division of Ramesh Exports Pvt. Ltd. which is the plaintiff
in the second suit. It has also been admitted by the plaintiff in the
second suit that Ramesh Exports Pvt. Ltd. is a wholly owned subsidiary of
Ramesh Enterprises Pvt. Ltd. Both the entities are operated out of the
same premises and suits were filed by their Director who is Mr. T.
Thangapalam. Therefore, we are of the opinion that de facto the parties
are the same in both the suits. Having perused the written statement of
the defendant being the appellant before us in O.S. No.4763 of 1986 we
have found that the defendant in paragraph 14(c) of his written statement
has specifically pleaded that:
“The suit is barred under Order 2, Rule 2 of the CPC as the plaintiff
having filed O.S. No. 3150/1985 in respect of the alleged failure of
the board to supply stamps for the coffees purchased by it between 11-
8-1982 and 8-9-1982, the claim now made must be deemed to have been
relinquished.”
The Trial Court also in its judgment dated March 17, 2005 specifically
framed the following issue:
“(5) Whether Defendant prove that this is barred as per para 14 (c) of
the Written Statement?”
14. It is evident from the above that the two requirements for the
operation of bar under Order 2 Rule 2 are met with and what remains to be
seen is whether the cause of action in the subsequent suit is the same
and the relief claimed therein could have been claimed in the earlier
suit. For the same, both the plaints are discussed in the subsequent
paragraphs.
15. In the plaint in O.S. No. 3150 of 1985 being the earlier suit, it has
been claimed by the respondent being the plaintiff therein that the
appellant being the defendants failed to supply ICO Stamps for 268.08
tonnes of coffee purchased by him for export between August 11, 1982 and
September 8, 1982, inspite of its assurances leading to delay in the
shipment of the coffee resulting in losses to the plaintiff. On the basis
of the same, the respondent claimed for the losses suffered by him along
with damages. The respondent further averred that the cause of action for
the suit arose on various dates when the respondent purchased coffee from
the appellant in the auctions held by them on the assurance that the ICO
Stamps will be supplied by the appellant to them.
16. The cause of action in the above suit is the failure of ICO to supply
stamps to the respondent inspite of its assurances. The respondent to
ensure the success of his claim, was required to prove that on account of
the omission of the appellant i.e. failure to provide ICO Stamps for the
coffee purchased by them, the respondent suffered losses.
17. Inspite of the different wording of the plaint in O.S. No. 4763 of
1986, being the subsequent suit, the respondent has primarily claimed
that inspite of the assurance given by the appellant regarding the ICO
stamps by its Circular dated August 18, 1982, the appellant failed to
provide the requisite ICO Stamps for 230.4 tonnes coffee purchased by it
between July 25, 1982 and August 18, 1982. That on the basis of the
assurance of the appellant the respondent started making preparations for
the shipment and after requesting for the ICO Stamps on August 28, 1982
and waiting for the same, he was forced for shipment of the coffee
without the necessary stamps which lead to the recalling of the ship.
That the respondent had to bear to and fro freight charges and other
costs being the damages to importers for delay in shipment as the
shipment was called back wrongfully; on account of the omission of the
appellant for which the respondent is not accountable; and the appellant
is liable for the cost arising from the recall of the shipment.
Furthermore, as per the plaintiff, the cause of action arose when the
circular assuring the availability of stamps was issued, when the coffee
was shipped and subsequently called back.
18. Though the plaint in the subsequent suit is more specific, we however,
find that the respondent so as to recover the cost of the freight charges
and other costs suffered by it, must prove that the appellant was under a
duty to provide ICO stamps; and its failure to provide the stamps timely
lead to the coffee being shipped without the stamps and ultimately lead
to the losses being suffered by the respondent.
19. In both the suits the fact required to be proved by the respondent
(being the plaintiff therein), to succeed in its claims was that on
account of the failure of the appellant (being the defendant) to provide
the required ICO stamps as assured by it, the respondent had to suffer
losses. The two separate reliefs claimed by the respondent are dependent
on the same fact being the omission of duty by the appellant. The grounds
of disparity in the suits are the amount of coffee and the dates when the
same was purchased, however it must be noted that the period between
August 11, 1982 and August 18, 1982 is common to both the suits and there
are no specific pleadings differentiating the same. Furthermore, the
suits were filed within a span of nine days of each other.
20. In the light of the above, we are of the opinion that suits should have
been merged with the claims against coffee purchased between July 25,
1982 and September 8, 1982, (a period arising from the merging of the two
periods claimed in the suits wherein eight days overlapped each other)
clubbed together in the same suit from which two reliefs, first being the
losses due to delayed shipment and second being the costs and losses
arising due to the recall of the shipment, could have been claimed.
21. In the present factual matrix both the reliefs are being claimed
separately in the two concerned suits. This scenario negates the
principle of Order 2, Rule 2 in absence of any explanation as to why the
respondent failed to claim the relief by way of a single suit when the
cause of action was the same in the both. Therefore, we are of the
opinion that the Trial Court in its judgment dated March 17, 2005
correctly held that in light of O.S. No. 3150 of 1985 the present suit is
barred under Order 2 Rule 2 of the Code.
22. In view of the aforesaid discussion, we find that the High Court has
misappreciated the facts in the light of Order 2 Rule 2 of the Code and
thereby the reasoning of the High Court cannot be sustained in the eye of
law. The said suit (O.S.No.4763 of 1986) is barred. Considering the
facts, as discussed above, we set aside the judgment and order of the
High Court and uphold the order of the Trial Court. Accordingly, the
present appeal is allowed and the suit of the respondent is dismissed.
………………..…....……....…………..J.
(Chandramauli Kumar Prasad)
………………..…....……....…………..J.
(Pinaki Chandra
Ghose)
New Delhi;
May 9, 2014.
-----------------------
[1] ILR (1927) 8 Lah 384
[2] (1995) 6 SCC 733
[3] (2010) 10 SCC 141
[4] AIR 1964 SC 1810
[5] (2007) 11 SCC 75
the respondent filed two suits against the appellant Board
in the Court of City Civil Judge, Bangalore, one being O.S. No.3150 of
1985 praying for a decree of Rs.5,32,012.31 p. with interest at the rate
of 19% per annum and costs of the suit and another suit being O.S. No.
4763 of 1986 praying for a decree of Rs.11,70,446.39 p. with interest at
the rate of 19% per annum and costs of the suit.
However, the other suit being O.S. No. 4763 of 1986
was dismissed by the Trial Court by judgment dated March 17, 2005 and
aggrieved thereby, the respondent filed R.F.A. No.1033 of 2005 before
the High Court of Karnataka. After considering the submissions of both
the parties, the High Court partly allowed the regular first appeals.=
In both the suits the fact required to be proved by the respondent
(being the plaintiff therein), to succeed in its claims was that on
account of the failure of the appellant (being the defendant) to provide
the required ICO stamps as assured by it, the respondent had to suffer
losses. The two separate reliefs claimed by the respondent are dependent
on the same fact being the omission of duty by the appellant. The grounds
of disparity in the suits are the amount of coffee and the dates when the
same was purchased, however it must be noted that the period between
August 11, 1982 and August 18, 1982 is common to both the suits and there
are no specific pleadings differentiating the same. Furthermore, the
suits were filed within a span of nine days of each other.
20. In the light of the above, we are of the opinion that suits should have
been merged with the claims against coffee purchased between July 25,
1982 and September 8, 1982, (a period arising from the merging of the two
periods claimed in the suits wherein eight days overlapped each other)
clubbed together in the same suit from which two reliefs, first being the
losses due to delayed shipment and second being the costs and losses
arising due to the recall of the shipment, could have been claimed.
21. In the present factual matrix both the reliefs are being claimed
separately in the two concerned suits. This scenario negates the
principle of Order 2, Rule 2 in absence of any explanation as to why the
respondent failed to claim the relief by way of a single suit when the
cause of action was the same in the both. Therefore, we are of the
opinion that the Trial Court in its judgment dated March 17, 2005
correctly held that in light of O.S. No. 3150 of 1985 the present suit is
barred under Order 2 Rule 2 of the Code.
22. In view of the aforesaid discussion, we find that the High Court has
misappreciated the facts in the light of Order 2 Rule 2 of the Code and
thereby the reasoning of the High Court cannot be sustained in the eye of
law. The said suit (O.S.No.4763 of 1986) is barred. Considering the
facts, as discussed above, we set aside the judgment and order of the
High Court and uphold the order of the Trial Court. Accordingly, the
present appeal is allowed and the suit of the respondent is dismissed.
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41536
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5527 OF 2014
(Arising out of SLP (C) No.26157 of 2012)
Coffee Board .…
Appellant
versus
M/S. Ramesh Exports Pvt. Ltd. ....Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. This appeal is preferred against the judgment and order dated December
19, 2011 passed by the High Court of Karnataka at Bangalore in Regular
First Appeal No.1033 of 2005 partly allowing the appeal filed by the
respondent herein and partly decreeing the Original Suit being O.S. No.
4763 of 1986 filed by the respondent being the original plaintiff. The
said original suit was dismissed by a judgment and decree dated March 17,
2005.
3. Pre-liberalization, till 1996 all the coffee grown in India was pooled
with the appellant-Board which is a statutory body under the Coffee Act,
1942. The appellant-Board (hereinafter referred to as “Board”) marketed
the pooled coffee and distributed the net realization to the growers in
proportion the quantity pooled by them. The Board marketed the pooled
coffee by means of auctions and separate auctions were held for export
and domestic market. Only registered exporters are allowed to participate
in the said auctions and the successful bidders amongst them enter into
contracts with the Board for the purchase of the coffee. The Board is a
member of the International Coffee Organization (hereinafter referred to
as “ICO”) which is the main intergovernmental organization controlling
and regulating the global coffee export and import. Majority of the
coffee growing and consuming countries are members of the ICO. The import
and export of coffee is regulated by ICO by fixing quotas on the member
countries in accordance with the quantum produced. As per the then
International Coffee Agreement of 1983 the export quota system was
supported by an obligatory system of controls. Each export by a Member
was covered by a Certificate of Origin. Importing Members did not admit
coffee from Members unless the Certificate was validated by coffee export
stamps issued by the Organization. When quotas were in effect importing
Members were required to limit their imports from non-members and exports
to non-members were closely monitored.
4. Accordingly, India being a member of ICO through the Board was subject
to the same agreement and as per the fixed quota for exporting coffee the
Board received stamps from ICO for each quarter through State Bank of
India. Thus, the Board subject to ICO rules and regulations regulated the
coffee production and marketing in India by accordingly distributing
stamps to the exporters who had successfully purchased coffee from the
auctions. The respondent M/s. Ramesh Exports Pvt. Ltd. being the original
plaintiff was registered with the Board as an exporter during the coffee
year October 1, 1981 to September 30, 1982.
5. In this backdrop, the facts leading to the present appeal are as under:
1. On August 24, 1980, the appellant Board sent the ‘Terms and Conditions
of Sale of Coffee in the Course of Export’, after amendment of certain
clauses, to all the registered exporters of coffee. On October 9, 1980
the appellant Board issued a Circular regarding introduction of Coffee
Export stamp system for export of coffee to member importing countries
of ICO from November 1, 1980. The respondent purchased coffee at the
export auction. The respondent shipped 230.4 tonnes of coffee to USA and
Germany who were members of ICO, on 1st, 2nd and 3rd September, 1982
without valid ICO certificate of origin. On September 22, 1982, the
respondent wrote to the appellant Board requesting for ICO stamps for
export of 230.4 tonnes of coffee and on September 29, 1982, the
respondent wrote to the appellant Board for issue of necessary
permit/authority to re-import 230.4 tonnes of coffee into India. The
appellant Board issued a show cause notice to the respondent alleging
that the respondent has committed breach of terms of ICO Agreement by
making false statement. The respondent replied to the show cause notice.
Thereafter, the respondent filed two suits against the appellant Board
in the Court of City Civil Judge, Bangalore, one being O.S. No.3150 of
1985 praying for a decree of Rs.5,32,012.31 p. with interest at the rate
of 19% per annum and costs of the suit and another suit being O.S. No.
4763 of 1986 praying for a decree of Rs.11,70,446.39 p. with interest at
the rate of 19% per annum and costs of the suit. The appellant Board
resisted the suits and denied the claims made by the respondent.
2. By judgment dated February 14, 2002, the Trial Court decreed O.S.
No.3150 of 1985 with costs and interest at 6% per annum. Aggrieved by
the judgment and decree dated February 14, 2002 passed by the Trial
Court, the appellant Board filed R.F.A. No.901 of 2002 before the High
Court of Karnataka. However, the other suit being O.S. No. 4763 of 1986
was dismissed by the Trial Court by judgment dated March 17, 2005 and
aggrieved thereby, the respondent filed R.F.A. No.1033 of 2005 before
the High Court of Karnataka. After considering the submissions of both
the parties, the High Court partly allowed the regular first appeals.
Aggrieved by the judgment and order dated December 19, 2011 passed by
the High Court of Karnataka at Bangalore in Regular First Appeal No.1033
of 2005, the appellant Board has come up before this Court.
6. The case of the appellant before us is based on two grounds. Firstly, it
has been contended by the learned counsel appearing for the appellant
that the High Court has incorrectly held that the Original Suit being
O.S. No.4763 of 1986 is not barred by the provisions of Rule 2 of Order 2
of the Code of Civil Procedure, 1908 (hereinafter referred to as “the
Code”). In support of the same, it has been submitted by the learned
counsel that the High Court incorrectly determined the above without
considering the specific pleadings in O.S. No.3150 of 1985 filed by the
respondent, as against the pleadings in the original suit being O.S.
No.4763 of 1986. It was further submitted that the High Court also did
not consider the cogent findings of the judgment dated March 17, 2005
passed by the Trial Court in O.S. No.4763 of 1986.
7. The second ground raised by the learned counsel for the appellant is on
merits wherein it has been contended that when the respondent by letter
dated September 29, 1982 agreed to re-import 230.4 tonnes of coffee into
India which was exported without ICO Stamps by them in haste and against
the ICO Regulations of which they were aware and which entailed in the
debarring of India from the membership of ICO, then they are estopped
from claiming any damages and costs being freight and other charges
arising due to the re-import.
8. Having heard the arguments advanced by the counsel appearing for the
parties and considering the documents on record in light of the averments
of the parties, we will first consider the procedural validity of the
original suit and would accordingly proceed with the merits.
9. It is the claim of the appellant being the original defendant in the
original suit being O.S. No.4763 of 1986 that the present suit is barred
by Order 2 Rule 2 of the Code. The said provision should be read in
context of Rule 1 of Order 2. The relevant rules are reproduced below for
ready reference:
“1. Frame of suit.—Every suit shall as far as practicable be framed so
as to afford ground for final decision upon the subjects in dispute
and to prevent further litigation concerning them.
2. Suit to include the whole claim.—(1) Every suit shall include the
whole of the claim which the plaintiff is entitled to make in respect
of the cause of action; but a plaintiff may relinquish any portion of
his claim in order to bring the suit within the jurisdiction of any
court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim,
he shall not afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to
more than one relief in respect of the same cause of action may sue
for all or any of such reliefs; but if he omits, except with the leave
of the court, to sue for all such reliefs, he shall not afterwards sue
for any relief so omitted.”
10. The above rules are offshoots of the ancient principle that there
should be an end to litigation traced in the Full Bench decision of the
Court in Lachmi vs. Bhulli[1] and approved by this Court in many of its
decisions. The principle which emerges from the above is that no one
ought to be vexed twice for the same cause. In light of the above, from a
plain reading of Order 2 Rule 2, it emerges that if different reliefs and
claims arise out of the same cause of action then the plaintiff must
place all his claims before the Court in one suit and cannot omit one of
the reliefs or claims except without the leave of the Court. Order 2 Rule
2 bars a plaintiff from omitting one part of claim and raising the same
in a subsequent suit. (See: Deva Ram & Anr. vs. Ishwar Chand & Anr.[2]).
Furthermore, this Court in Alka Gupta v. Narender Kumar Gupta[3] stated
that:
“The object of Order 2 Rule 2 of the Code is twofold. First is to
ensure that no defendant is sued and vexed twice in regard to the same
cause of action. Second is to prevent a plaintiff from splitting of
claims and remedies based on the same cause of action. The effect of
Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier
claimed certain remedies in regard to a cause of action, from filing a
second suit in regard to other reliefs based on the same cause of
action. It does not however bar a second suit based on a different and
distinct cause of action.”
11. The bar of Order 2 Rule 2 comes into operation where the cause of
action on which the previous suit was filed, forms the foundation of the
subsequent suit; and when the plaintiff could have claimed the relief
sought in the subsequent suit, in the earlier suit; and both the suits
are between the same parties. Furthermore, the bar under Order 2 Rule 2
must be specifically pleaded by the defendant in the suit and the Trial
Court should specifically frame a specific issue in that regard wherein
the pleading in the earlier suit must be examined and the plaintiff is
given an opportunity to demonstrate that the cause of action in the
subsequent suit is different. This was held by this Court in Alka Gupta
v. Narender Kumar Gupta (supra) which referred to decision of this Court
in Gurbux Singh vs. Bhooralal[4] wherein it was held that:
“6. In order that a plea of a bar under Order 2 Rule 2(3) of the
Civil Procedure Code should succeed the defendant who raises the plea
must make out: (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based; (2) that
in respect of that cause of action the plaintiff was entitled to more
than one relief; (3) that being thus entitled to more than one relief
the plaintiff, without leave obtained from the court omitted to sue
for the relief for which the second suit had been filed. From this
analysis it would be seen that the defendant would have to establish
primarily and to start with, the precise cause of action upon which
the previous suit was filed, for unless there is identity between the
cause of action on which the earlier suit was filed and that on which
the claim in the later suit is based there would be no scope for the
application of the bar.”
12. The Courts in order to determine whether a suit is barred by Order 2
Rule 2 must examine the cause of action pleaded by the plaintiff in his
plaints filed in the relevant suits (See: S. Nazeer Ahmed v. State Bank
of Mysore & Ors.[5]). Considering the technicality of the plea of Order 2
Rule 2, both the plaints must be read as a whole to identify the cause of
action, which is necessary to establish a claim or necessary for the
plaintiff to prove if traversed. Therefore, after identifying the cause
of action if it is found that the cause of action pleaded in both the
suits is identical and the relief claimed in the subsequent suit could
have been pleaded in the earlier suit, then the subsequent suit is barred
by Order 2 Rule 2.
13. In the present case we have found the first suit is claimed to be O.S.
No. 3150 of 1985 and the subsequent suit is claimed to be O.S. No.4763 of
1986. The first suit was filed by Ramesh Enterprises which is admitted to
be the Coffee Division of Ramesh Exports Pvt. Ltd. which is the plaintiff
in the second suit. It has also been admitted by the plaintiff in the
second suit that Ramesh Exports Pvt. Ltd. is a wholly owned subsidiary of
Ramesh Enterprises Pvt. Ltd. Both the entities are operated out of the
same premises and suits were filed by their Director who is Mr. T.
Thangapalam. Therefore, we are of the opinion that de facto the parties
are the same in both the suits. Having perused the written statement of
the defendant being the appellant before us in O.S. No.4763 of 1986 we
have found that the defendant in paragraph 14(c) of his written statement
has specifically pleaded that:
“The suit is barred under Order 2, Rule 2 of the CPC as the plaintiff
having filed O.S. No. 3150/1985 in respect of the alleged failure of
the board to supply stamps for the coffees purchased by it between 11-
8-1982 and 8-9-1982, the claim now made must be deemed to have been
relinquished.”
The Trial Court also in its judgment dated March 17, 2005 specifically
framed the following issue:
“(5) Whether Defendant prove that this is barred as per para 14 (c) of
the Written Statement?”
14. It is evident from the above that the two requirements for the
operation of bar under Order 2 Rule 2 are met with and what remains to be
seen is whether the cause of action in the subsequent suit is the same
and the relief claimed therein could have been claimed in the earlier
suit. For the same, both the plaints are discussed in the subsequent
paragraphs.
15. In the plaint in O.S. No. 3150 of 1985 being the earlier suit, it has
been claimed by the respondent being the plaintiff therein that the
appellant being the defendants failed to supply ICO Stamps for 268.08
tonnes of coffee purchased by him for export between August 11, 1982 and
September 8, 1982, inspite of its assurances leading to delay in the
shipment of the coffee resulting in losses to the plaintiff. On the basis
of the same, the respondent claimed for the losses suffered by him along
with damages. The respondent further averred that the cause of action for
the suit arose on various dates when the respondent purchased coffee from
the appellant in the auctions held by them on the assurance that the ICO
Stamps will be supplied by the appellant to them.
16. The cause of action in the above suit is the failure of ICO to supply
stamps to the respondent inspite of its assurances. The respondent to
ensure the success of his claim, was required to prove that on account of
the omission of the appellant i.e. failure to provide ICO Stamps for the
coffee purchased by them, the respondent suffered losses.
17. Inspite of the different wording of the plaint in O.S. No. 4763 of
1986, being the subsequent suit, the respondent has primarily claimed
that inspite of the assurance given by the appellant regarding the ICO
stamps by its Circular dated August 18, 1982, the appellant failed to
provide the requisite ICO Stamps for 230.4 tonnes coffee purchased by it
between July 25, 1982 and August 18, 1982. That on the basis of the
assurance of the appellant the respondent started making preparations for
the shipment and after requesting for the ICO Stamps on August 28, 1982
and waiting for the same, he was forced for shipment of the coffee
without the necessary stamps which lead to the recalling of the ship.
That the respondent had to bear to and fro freight charges and other
costs being the damages to importers for delay in shipment as the
shipment was called back wrongfully; on account of the omission of the
appellant for which the respondent is not accountable; and the appellant
is liable for the cost arising from the recall of the shipment.
Furthermore, as per the plaintiff, the cause of action arose when the
circular assuring the availability of stamps was issued, when the coffee
was shipped and subsequently called back.
18. Though the plaint in the subsequent suit is more specific, we however,
find that the respondent so as to recover the cost of the freight charges
and other costs suffered by it, must prove that the appellant was under a
duty to provide ICO stamps; and its failure to provide the stamps timely
lead to the coffee being shipped without the stamps and ultimately lead
to the losses being suffered by the respondent.
19. In both the suits the fact required to be proved by the respondent
(being the plaintiff therein), to succeed in its claims was that on
account of the failure of the appellant (being the defendant) to provide
the required ICO stamps as assured by it, the respondent had to suffer
losses. The two separate reliefs claimed by the respondent are dependent
on the same fact being the omission of duty by the appellant. The grounds
of disparity in the suits are the amount of coffee and the dates when the
same was purchased, however it must be noted that the period between
August 11, 1982 and August 18, 1982 is common to both the suits and there
are no specific pleadings differentiating the same. Furthermore, the
suits were filed within a span of nine days of each other.
20. In the light of the above, we are of the opinion that suits should have
been merged with the claims against coffee purchased between July 25,
1982 and September 8, 1982, (a period arising from the merging of the two
periods claimed in the suits wherein eight days overlapped each other)
clubbed together in the same suit from which two reliefs, first being the
losses due to delayed shipment and second being the costs and losses
arising due to the recall of the shipment, could have been claimed.
21. In the present factual matrix both the reliefs are being claimed
separately in the two concerned suits. This scenario negates the
principle of Order 2, Rule 2 in absence of any explanation as to why the
respondent failed to claim the relief by way of a single suit when the
cause of action was the same in the both. Therefore, we are of the
opinion that the Trial Court in its judgment dated March 17, 2005
correctly held that in light of O.S. No. 3150 of 1985 the present suit is
barred under Order 2 Rule 2 of the Code.
22. In view of the aforesaid discussion, we find that the High Court has
misappreciated the facts in the light of Order 2 Rule 2 of the Code and
thereby the reasoning of the High Court cannot be sustained in the eye of
law. The said suit (O.S.No.4763 of 1986) is barred. Considering the
facts, as discussed above, we set aside the judgment and order of the
High Court and uphold the order of the Trial Court. Accordingly, the
present appeal is allowed and the suit of the respondent is dismissed.
………………..…....……....…………..J.
(Chandramauli Kumar Prasad)
………………..…....……....…………..J.
(Pinaki Chandra
Ghose)
New Delhi;
May 9, 2014.
-----------------------
[1] ILR (1927) 8 Lah 384
[2] (1995) 6 SCC 733
[3] (2010) 10 SCC 141
[4] AIR 1964 SC 1810
[5] (2007) 11 SCC 75
