Mohan Aluminium Pvt. Ltd. Vs. Klen and Marshall's Manufacturers and Exporters Ltd. and Ors. (05.10.1998 - MADHC) - Court Judgment

Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. orders.s. subramani, j.1. all these revisions arise from the same suit, namely, o.s. no. 6522 of 1997, on the file of xviith assistant judge, city civil court, madras. first three revisions are filed by the first defendant in the suit and c.r.p. no. 2573 of 1998 is filed by 2nd defendant in that suit.2. relevant facts may be summarised thus: under the world bank scheme, the madhya pradesh state electricity board, who is the petitioner in c.r.p. no. 2573 of 1998, invited tenders for supply of certain conductors to draw transmission lines. five companies formed themselves into a consortium and the plaintiff in the suit was appointed as their agent. in that capacity, it received supply orders from the board and received an advance of rs. 41/2 crores. plaintiff also executed a performance.....

Judgment:
ORDER

S.S. Subramani, J.

1. All these revisions arise from the same suit, namely, O.S. No. 6522 of 1997, on the file of XVIIth Assistant Judge, City Civil Court, Madras. First three revisions are filed by the first defendant in the suit and C.R.P. No. 2573 of 1998 is filed by 2nd defendant in that suit.

2. Relevant facts may be summarised thus: Under the World Bank Scheme, the Madhya Pradesh State Electricity Board, who is the petitioner in C.R.P. No. 2573 of 1998, invited tenders for supply of certain conductors to draw transmission lines. Five companies formed themselves into a consortium and the plaintiff in the suit was appointed as their Agent. In that capacity, it received supply orders from the Board and received an advance of Rs. 41/2 crores. Plaintiff also executed a performance guarantee issued by Bank at Bombay. But plaintiff was not in a position to procure raw material to perform the contract in any manner. Since it is World Bank Project, time for performance was important. On 17.7.1997, a meeting was convened, and it was agreed in that meeting that plaintiff must complete the supply by December, 1997. It is the case of the first defendant, who is the petitioner in C.R.P.Nos.2383 to 2385 of 1998, that it expressly agreed that if it was unable to deliver the goods by December, 1997, the Electricity Board could pursue the matter by whatever method it could. Plaintiff failed to make supply even till August, 1997 and, therefore, the Electricity Board placed direct orders with the first defendant. First defendant and other members of the consortium supplied the entire quantity within the time stipulated and payments were also received. Bank Guarantee given by plaintiff was also invoked and the money was paid. At this juncture, it must also be noted that the very same plaintiff filed another suit as O.S. No. 6028 of 1997, on the file of the very same court. In that suit, the Electricity Board was made a party and it wanted the Electricity Board not to invoke the Bank Guarantee. An interim injunction was originally granted, but the same was subsequently vacated. Against that order, C.M.A. No. 205 of 1997 was filed on the file of VI Additional Judge, City Civil Court, Madras. The Appellate Judge ordered Status quo thereby effectively prohibiting the Electricity Board from encashing the Bank Guarantee. The matter was also not heard by the learned Appellate Judge in spite of urgency of the matter. Aggrieved by the adjournments, Revision was filed under Article 27 of the Constitution of India as C.R.P. No. 3404 of 1997. On 12.12.1997, I allowed the revision, and the same is reported in Madhya Pradesh Electricity Board v. Khen & marshell Manufacturers and Exports : (1998)1MLJ668 . I observed therein that the suit itself is liable to be struck off from the file. I also held that the courts at Madras have no jurisdiction to entertain such suits. It is pending that suit, the present suit was filed by the very same plaintiff, making certain additions in the plaint.

3. In the present plaint, it is alleged that the Electricity Board is not entitled to have direct contact with the first defendant so long as plaintiff has got power of attorney. It is its further case that the power is coupled with interest, and second defendant also should not pay any amount to the first defendant. It may also be noted that when the Electricity Board contacted the members of the consortium directly, the power of Attorney in favour of plaintiff was also cancelled. On the basis of the cancellation of the power of attorney, the present suit was filed for he following reliefs:

The plaintiff therefore prays for a judgment and decree against the defendants.

(a) declaring that the revocation of the power of Attorney dated 12.2.1997 made by the 1st defendant is invalid in law and that, therefore, the said power is still in force;

(b) for a permanent injunction restraining the 2nd defendant, its men, agents, officers, executives, employees or any person claiming through or under it from recognising such revocation of the power of Attorney dated 12.2.1997;

(c) for a permanent injunction restraining the defendants, their men, agents, servants, employees or any person claiming under them from dealing with each other directly in contravention of the agreements dated 12.1.1996 between the 1st defendant and others and the plaintiff, and 1.11,1996 between the plaintiff and the 2nd defendant, as amended, between the plaintiff and the 2nd defendant;

(d) for costs of the suit; and

(e) for such further or other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.

4. Three interlocutory applications were filed, namely, I.A.Nos. 17242 and 17243 of 1997 and 3497 of 1998. In I.A. No. 17242 of 1997, the relief sought for reads thus:

For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Honourable court may be pleased to pass an order of interim injunction restraining the respondents, their men, agents, servants, employees or any person claiming under them from dealing with each other directly in contravention of the agreements dated 12.1.1996 between the 1st respondent and others and the petitioner, and 1.11.1996 between petitioner and 2nd respondent, amended between petitioner and 2nd respondent, pending disposal of the suit....

In I.A. No. 17243 of 1997, the prayer reads thus:.to pass an interim injunction restraining the 2nd respondent, its men, agents, officers, executives, employees or any person claiming through or under it from recognising such revocation of the power of attorney dated 12.2.1997, pending disposal of the suit,....

In I.A. No. 3497 of 1998, the relief sought for was as follows:.to issue an order of interim injunction restraining the 2nd respondent herein, its men, agents, employees, officers or any other person claiming through or under it from in any manner disbursing any payments to the 1st respondent in connection with the contract entered into between the petitioner and the 2nd respondent on 1.11.1996 as amended subsequently....

5. A detailed counter affidavit has been filed both by 1st defendant and 2nd defendant mainly raising jurisdictional questions and also commenting upon the conduct of the petitioner. Apart from contending that the plaintiff has no prima facie case, it was further contended that the plaintiff itself has filed a suit as O.S. No. 507 of 1997, on the file of III Civil Judge, Class I, Jabalpur, for the same relief. The reliefs prayed for therein are also similar to the one that are sought for in the present suit. That court did not think of granting any interim order. Consequently, it is said, the plaintiff itself moved for arbitration proceedings, and the Arbitrator passed an interim Order. The same was challenged by the very same petitioner in W.P. No. 4652 of 1997, on the file of High Court, Jabalpur. Interim Order passed by the Arbitrator was vacated, and it was further found that the very initiation of arbitration proceedings was one without jurisdiction, for, it was against the provisions of Section 11 of the Arbitration and Conciliation Act. It is represented by petitioners that these two proceedings are not mentioned in the plaint, and it amounts to material suppression of facts. It is also submitted by learned Senior Counsel for petitioners that after the present suit was filed, plaintiff itself filed another original suit as O.S. No. 99 of 1998, on the file of High Court, Bombay and the very same reliefs were prayed for before that High Court also. Learned single Judge who heard the matter, dismissed the injunction application, and the matter was taken before a Division Bench, which also confirmed it, and gave certain directions. According to petitioners, since plaintiff could not obtain interim relief in the courts at Madras, it filed a suit before the Bombay High Court on the very same cause of action. The argument is that even though the suit before the Bombay High Court was filed later, by the time the impugned Order was passed by the lower court, the Bombay High Court had passed an order, and it binds both the parties. The lower court should not have granted interim relief when the judgment of the Bombay High Court is binding both the parties. Judicial propriety requires that the Subordinate Courts should obey the orders of High Court, though of a different State. It is also submitted by learned Senior counsel for petitioners that even though these documents were placed before the lower court, it has not mentioned anything about these documents, and has simply passed the interim order which has seriously affected the rights of parties. It is also submitted that the filing of repeated suits one after the other, shows the lack of bona fides on the part of the plaintiff, and its intention is only to harass the defendants. When the conduct of the plaintiff in approaching the court is not bona fide, the suit is liable to be struck off. It is further said that on the very same cause of action, four or five suits have been filed and, therefore, they are vexatious.

6. When the revision petitions came for admission, I ordered notice of motion and also suspended the interim order passed by the lower court.

7. Plaintiff 1st respondent in all these revisions entered appearance through Senior Counsel. It was thereafter, the Madhya Pradesh Electricity Board, Jabalpur, preferred C.R.P. No. 2573 of 1998. It is aggrieved by the Order passed in I.A. No. 2122 of 1998. So far as the Electricity Board is concerned, it filed a petition with affidavit before the lower court with a prayer to hear the question of jurisdiction as a preliminary issue. The lower court dismissed the same on the ground that issues have not yet been settled and, therefore, the petition was premature. Learned Senior counsel appearing for the first respondent herein also took note of this Revision, viz., C.R.P. No. 2573 of 1998, and argued the matter.

8. I will first consider the three Revision Petitions, viz., C.R.P.Nos.2383 to 2385 of 1998, filed by 1st defendant in the suit, For the sake of convenience, reference to parties in this Order shall be according to their rank in the suit.

9. Plaintiff is an agent of five companies, who formed a consortium. The five companies are the manufacturers, and, for finance, help of the plaintiff was sought for. On behalf of the consortium, plaintiff obtained a purchase order from 2nd defendant in the suit. It also received a sum of Rs. 4 1/2 crores as advance. But it could not supply the materials, and it is the case of the first defendant and also the second defendant Electricity Board that the plaintiff could not supply even one single conductor before 15.8.1997, even though it was a time schedule programme. Being a World Bank Project, time must have been given the primary importance, and plaintiff was not in a position to get raw materials for the supply of conductors. It is the further case of the petitioners that in July, 1997, there was a meeting in which it was agreed that the entire supply will be completed before December, 1997. Till August, 1997, plaintiff could not do anything and, therefore, second defendant directly contacted the members of the consortium and placed another order. Second defendant also invoked the bank guarantee, which was challenged by plaintiff in the earlier suit. I have directed the striking off that suit from file. When second defendant directly contacted the members of the consortium, they thought of cancelling the power of attorney executed in favour of plaintiff. One of the causes of action for filing the suit is, the revocation of power of attorney.

10. Challenging the right of second defendant to deal with the members of the consortium, plaintiff filed a suit C.S. No. 507 of 1997 before the City Civil Court at Jabalpur for the following reliefs:

The plaintiff therefore, prays for a judgment and decree.

(a) For a permanent, injunction restraining the defendant No. 1, its agents, employees, representatives or any person claiming through or under it from acting further on terms of the letter dated 19.8.1997.

(b) For permanent injunction restraining the defendant No. 1, its agents, employees, representative or any person claiming the use or under it from the payment on all invoices of the defendant Nos.2 and 3 and such payment to be made to the plaintiff as the plaintiff is main contract and authorised representative and power of attorney holder on invoices submitted and the said payment in dollars as this is world Bank contract.

(c) For costs of the suit, and

(d) For such further other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.

11. Cause of action for that suit is mentioned in paragraph 24 of the plaint in that suit. It reads thus:

The cause of action for this suit arose at Jabalpur within the jurisdiction of this Hon'ble Court, where the offers of the plaintiff were accepted by the defendant No. 1 and where the office of the defendant No. 1 is situate and, where the order was placed by the 1st defendant on the plaintiff, where-such order was accepted and from where supplies have to be made on 29.3.1996, when such purchases orders were placed to the plaintiff and subsequently there after on several dates when contracts were entered into and amendments made 10.5.1996 and 4.1.1997.

12. Plaintiff did not get any interim order, though an application was filed for that purpose along with the suit. The reliefs sought for in the plaint (extracted above) are similar to the one that are claimed in the present suit. Then it appointed its own Arbitrator and sought for an interim order. First defendant is not a party to any arbitration agreement. But the plaintiff was successful enough to get an interim order even as against the first defendant. Naturally, the first defendant had to approach the Madhya Pradesh High Court by filing a writ petition, and the interim order was also quashed. There is no statement anywhere in the plaintiff in the present suit, about the prior proceedings initiated by plaintiff and also about his failure to get interim order. Except stating that another suit O.S. No. 6028 of 1997 had also been filed by plaintiff before the very same court, nothing has been stated about the filing of a suit before the City Civil Court, Jabalpur, or about arbitration proceedings. The orders impugned in these revisions were passed on 21.7.1998. Long before the impugned orders, the Bombay High Court has passed orders against the very same plaintiff as well as the other members of the consortium. On 13.1.1998, a learned Judge of the Bombay High Court has passed the following order:

Heard both sides. No case for ad interim order is made out. Diverse litigations are pending in different courts for the same relief. The plaintiffs claim to be the representative of the consortium of which the defendants Nos.3 to 6 are the members. The defendant No. 2 has sought to invoke the bank guarantee given by the present plaintiffs. The defendant No. 3 today claims to be the leader of the consortium. The existing members of the consortium have completed part of the transaction. It is alleged by the defendants that the plaintiffs have no concern with the consortium today. In view of this and in view of the fact that the law is well settled on the encashment of bank guarantee, no ad interim -reliefs need be granted.

Mr. Doctor for the plaintiffs makes a grievance that the payments are being made to the defendant No. 3. It is clarified that the defendant No. 3 will be at liberty to accept the payment as and when made on behalf of the consortium on condition that an indemnity duly signed by the members of the consortium individually is filed with the office of the prothonotary and Sr. Master, that all payments made to the defendant No. 3 shall be subject to further directions that may be given in the motion.

Mr. Doctor tenders a draft amendment to the plaint. The amendment is granted. Amended copy to be served on the defendants respective Counsels within two weeks from today. Amendment to be carried out within three weeks from today.

The matter was taken in appeal before a Division Bench of the Bombay High Court, and on 9.2.1998, the Appeal was dismissed. The said judgment reads thus:

After hearing Shri Dwarkadas, learned Counsel for the appellants in support of this appeal at some length, and after having perused the documents to which our attention was specifically drawn and after hearing the learned Counsel for the Electricity Board and the defendant No. 3, we are of the prima facie view that the submission that there has been novatio when the Board addressed a letter and started dealing with the defendant No. 3 does not appear to have any merit. We are also not impressed by the submission of Shri Dwarkadas that it was due to the failure on the part of the Electricity Board to open the Letter of Credit in the name of the appellants and non-obtaining the licence in favour of the appellants, the appellants were not in a position to perform their part of the contract. On the basis of the material one thing is clear that for whatever reason the appellants have failed to discharge their obligation under the contract which must entitle the Board to invoke the bank guarantee. On the basis of the material on record and on the basis of prima facie view, we do not find any merit in this appeal and the appeal is dismissed accordingly.

Though we have dismissed the appeal, we record that the appellants, through their learned Counsel Shri Dwarkadas pleaded that the Electricity Board is a public body and in the facts and circumstances of the case they should consider whether the bank guarantees should be invoked or to what extent. Shri Nair, learned Counsel for the Electricity Board states that if such representation is made to the Board, the Board will consider the same as expeditiously as possible.

13. Even though certified copy of these orders has not been filed before the lower court, in the counter-affidavit details of the cast at Jabalpur and also arbitration proceedings are stated. It is also represented by learned Senior Counsel for petitioners herein that when written representations were present before the lower court, the judgment of the Bombay High Court was also brought to its notice, and this statement is not denied by either side. In this connection, the relief sought for in the suit filed before the Bombay High Court is also relevant for our purpose, where not only all these petitioners, but also other members of the consortium were made parties. Relevant portion of suit No. 99 of 1998 filed before the High Court of Bombay reads as follows:

The plaintiffs, therefore, pray,

(a) that this Hon'ble court be pleased to declare

(i) there is a valid and subsisting contract between the plaintiff and the 2nd defendant for the supply by the plaintiff acting on behalf of the consortium consisting of itself and defendants 3,4, 5 and 6 of the material mentioned therein;

(ii) that the 2nd defendant is not entitled to enforce the performance guarantees, D,D1 and D2 or the Advance payment Guarantees 'E' 'E1' and E2' hereto or any of them;

(iii) that the purported order placed by the 2nd defendant on the 3rd defendant by the letter dated 19th August, 1997 (Exhibit 'U' thereto) is null and void and of no legal effect;

(iv) that the power of Attorney (...) hereto is valid and subsisting and that the 3rd defendant is not entitled to terminate the same and the purported termination thereof by the 3rd defendant is wrongful and illegal.

(b) that this Hon'ble Court be pleased to issue a permanent injunction restraining the 1st defendant from making payment under the performance guarantees, Exs.D, D-1 and D-2 or any of them or the advance payment guarantees being Exs.E, E-1 and E-2, or any of them.

14. Though it was a subsequently instituted suit, regarding the interim Order, the Bombay High Court has already passed an earlier order taking into considerations the very same allegations in the plaint. When the Order passed by the Bombay High Court was brought to the notice of the lower court, it has simply rejected the same, even though the dispute was between the very same parties, and has passed interim order. Such an approach by the lower court disregarding the Order of the High Court is per se illegal.

15. The lower court has passed the interim order on the ground that the plaintiff is a power of attorney holder or agency with interest, and the same is not liable to be revoked. It is the very same matter that was agitated before the other courts also. Even though the plaintiff moved for urgent interim relief, the Jabalpur High Court as well as the Bombay High Court did not think of granting any interim relief.

16. I have already held that as against the second defendant, the courts at Madras have no jurisdiction. It is represented by the Board that the matter was taken before the Honourable Supreme Court and the special leave petition was dismissed, and my order has become final. Even as against the first defendant, the suit before the court at Madras is not maintainable. The lower court has taken a view that since to the agreement dated 20.1.1996 between the consortium, plaintiff is also a party and one of the witnesses to the agreement is from Madras, it might have been executed at Madras. The original agreement produced by first defendant itself before the lower court, and it contains the signature of plaintiff. It is the copy that has been given to the plaintiff. In that, if he had affixed his signature after getting the signature from some witness, that will not show that it was executed at Madras. At any rate, there was a contention that it is a fabricated document. It is also contended by 1st defendant that, in the agreement dated 20.1.1996, plaintiff is not a necessary party, since it is an agreement executed between the members of the consortium. That fact is not disputed even by plaintiff. The cancellation of power of attorney will not give a cause of action and even the cancellation is not at Madras. The lower court, without considering all these aspects, has granted interim order without following the procedure.

17. It is in this connection, we have to take into consideration the conduct of the plaintiff, whether it is entitled to get an interim relief, and whether it can prosecute the suit itself. In a recent decision of the Honourable Supreme Court, K.K. Modi v. K.N. Modi, 1998 A.I.R. S.C.W. 1166, their Lordships have discussed (in paras 42 and 43) what is meant by 'abuse of process of court'. They read thus:

Under Order 6, Rule 6, the court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure (15th Edition, Volume II, page 1179, note 7) has stated that power under Clause (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings; and that this power is unlike the power under Section 151, where under courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of court on the basis of what is stated in the plaint.

The Supreme Court Practice 1995 published by Sweet and Maxwell in paragraph 18/19/ 33 (page 344) explains the phrase 'abuse of the process of Court thus: This terms connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.

[Italics supplied]

18. An argument was advanced that the causes of action for the earlier suit and the present suit are not same, and the suits are based on different cause of action. A Division Bench of the Kerala High Court has considered a similar question in the decision reported in Advocate General v. T.A. Rajendran (1988)1 K.L.T. 305. The question raised was, whether, merely because a person files different suits against different persons, under cause of action, to achieve the same end, can those suits be considered as vexatious. Learned single Judge was of the view that unless the suits were on the basis of the same cause of action, such suits cannot be considered as vexatious. The same did not find favour with the Division Bench. In paragraph 4 of the judgment, the Bench has held thus:

The contention of the learned Advocate General is that in this case the learned single Judge proceeded to send for the judgments referred to in the petition, to analyse them critically and to come to the conclusion that there is no substance in the case brought by the Advocate General that the respondent has resorted to Vexatious litigation. We have been taken through the judgment of the learned single Judge. It was submitted that the learned single Judge has not confined his attention to finding out whether a prima facie case has been made out. It was a submitted that the learned single Judge has made a very exhaustive probe by putting the several judgments to critical analysis and drawing an inference from the same that it cannot be said that the respondent has brought vexatious litigation. The learned single Judge has observed that the action brought by the respondent cannot be treated as vexatious as he has not concentrated on one individual or one cause of action in his litigations. Though an inference that the litigation is vexatious may be drawn more readily when concentration is on the same person or on the same cause of action, it cannot be said as an invariable rule that litigation cannot be regarded as vexatious merely because he has chosen different persons and different causes of action. The essential question for consideration is as to whether the party is habitually bringing actions which are thoroughly unfounded, not with a view to vindicate justice but for the purpose of harassing the opponent.

[Italics supplied]

The said decision was followed in a later decision of the Kerala High Court in Jose v. Madhu (1994)1 K.L.T. 855.

19. I also had occasion to consider in Ranipet Municipality v. M. Shamsheerkhan (1998) 2C. T.C. 66 as to what is meant by 'abuse of process'. There, I have followed the decision reported in Sreedharan v. Seethala (1988) 2 K.L.T. 732, wherein it was held thus:

The power of the court to make such order as are necessary to prevent abuse of the process of court is inherent in every court. The term 'abuse of process of the court' has not been defined. What then this term means? Its meaning therefore has to be gathered from other sources. 'A malicious abuse of legal process occurs where the party employ it for some unlawful object, not the purpose which it is intended by the law to effect in other words a perversion of it yet another shade of meaning is this: 'Abuse of process' is the malicious and improper use of some regular legal proceeding to obtain some advantage over an opponent. ' This is a term generally used to proceeding which is wanting in bona fide and is frivolous, vexatious oppressive. An abuse of the process of court can be committed by the court or by a party. It is therefore clear that where a court employed a procedure in doing some thing which it never intended to do, but resulted in miscarriage of justice, there is what is called an abuse of the process of the court. If a Subordinate Court commits an abuse of the process of the court, a superior court has the power, nay the duty to prevent the said abuse becoming perpetual by interfering with the proceeding. What then is an abuse of the process of the court committed by a party to the proceeding? Instituting vexatious obstructive or dilatory action in court of law is one instance, where a party should be held to be guilty of an abuse of the multiplicity of proceedings for one's own aggrandisement is yet another instance where a party could be said to have committed an abuse of the process of the court.'

[Italics supplied]

20. Suppression of facts in the plaint also disentitles the plaintiff from getting any relief By suppressing facts before court and obtaining advantage i.e., by getting an interim order, plaintiff has played fraud on court, to the disadvantage of defendants.

21. I have already said that the lower court has passed an order in spite of the fact that the Bombay High Court has dismissed the application of the plaintiff. While considering the grant of interim relief Under Order 39, Rule 1, C.P.C., prima facie case is one of the essential ingredients that have to be considered. When the claim is barred by virtue of an earlier Order passed by court, can it be said that the plaintiff has got a prima facie case? It can never be said that the relief which is barred by res judicata can be granted by a court. If there is no prima facie case, the other two conditions also fall to the ground. That is, there is no question of balance of convenience and also hardship. Without considering any of these aspects, the lower court has granted interim orders.

22. Learned Senior Counsel for petitioners herein wanted that atleast the suits must be stayed till the disposal of the suit by the High Court of Bombay. I do not think that I should resort to that remedy. When the plaintiff him self has filed an exhaustive suit making all the members of the consortium as defendants before the Bombay High Court, I do not think that there is any necessity for him to prosecute the present suit. The present suit has been filed without bona fides and it has been filed only to harass the defendants. Filing suits one after another alleging different cause of action is to achieve the same purpose. Such a procedure cannot be encouraged by a court of law, and the court is also to see that multiplicity of suits is avoided. Consequently, the suit filed by plaintiff shall stand struck off from the file of the lower court. I make it clear that this striking off will not bar the plaintiff from agitating all these questions before the Bombay High Court.

23. Learned senior counsel for 1st respondent herein submitted that nothing survives in C.R.P. No. 2383 of 1998, since the first defendant has already supplied materials to the second defendant, and likewise, in C.R.P. No. 2384 of 1998 also, there is nothing to be pursued, since payment has already been received. It is also submitted that in view of the arbitration proceedings, nothing surviving the suit itself, and nothing survives in the C.R.Ps., I do not want to close the revisions as infructuous. When the conduct of the plaintiff has been brought to the notice of this Court, I should not allow the plaintiff to prosecute the suit. Learned senior counsel for the defendants wanted an order on merits, and he submitted that the plaintiff should not repeat his conduct, which amounts to harassing the defendants. Since I have accepted the contention of the learned Counsel appearing for defendants, naturally, I had to deal with the revisions on merits. I cannot simply pass an order as stated by learned Counsel for plaintiff.

24. The revision petition filed by second defendant challenging the jurisdiction need not be separately decided since I have already struck off the suit and therefore, that civil revision petition is closed as unnecessary.

25. In the result, C.R.P.Nos.2383 to 2385 of 1998 are allowed with costs. Advocate's fee Rs. 2,500 in each of the C.R.Ps. C.R.P. No. 2573 of 1998 is closed as unnecessary, however, without any order as to costs. The suit O.S. No. 6522 of 1997, on the file of XVII Assistant Judge, City Civil Court, Madras, is directed to be struck off from the file. The connected C.M.Ps., are closed.