ELSIY JOHNY Vs. KERALA VIJAYA KURIES & LOANS

JUDGEMENT

(1.) The petitioner in I.A. No. 254 of 1993 in O.S. No. 30 of 1992 on the file of the II Additional Munsiff's Court, Thrissur, is the revision petitioner. The revision is against an order in the above I.A. refusing to stay the trial of the suits, O.S. Nos. 1535/91, 30/92, 33/92, 34/92, 38/92, 92/92, 93/92, 538/92 and 1064/92. These suits were also pending in the court where O.S. No. 30/92 was filed. They were filed by the first respondent -company called 'Kerala Vijaya Kuries and Loans'. The suits are for recovery of money from the petitioner and others due under Kury Security Agreements.

(2.) I.A. No. 254/93 is filed praying to stay the trial of the suits under S.10 of the Code of Civil Procedure. This prayer was sought on the basis that the appeals arising from Company Petitions. C.P. Nos. 58 and 59 of 1989 are pending before this court and T.P. No. 6/91 filed by the Company is pending before the Sub Court, Thrissur. The case of the petitioner is that since the issues involved in the suit and the proceeding in Company Petitions as well as the Insolvency Petition are one and the same, the suits are liable to be stayed. The stay of the trial of the suit as authorised under S.10 of the C.P.C. can be ordered only in a case where "the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed". In order to resolve the dispute in this case, this court had the benefit of perusing orders in C.P. Nos. 58 and 59 of 1989. Neither the petitioner nor the respondents 2 to 7 are parties to the said Company Petitions. The first respondent in both the Company Petitions namely, Kerala Vijaya Loans and Chitties (P) Ltd. is the first respondent in the present I.A. No. 254/93. Therefore, only because the first respondent Company is a party in C.P. Nos. 58 and 59 of 1989, it cannot be said that the parties in both the cases are one and the same. The C.P. Nos. 58 and 59 of 1989 are petitions under S.397 and 398 of the Companies Act, playing mainly "to declare that the resolution and the decision thereon to issue further shares at the meeting as per notice dated 30th November 1989 is mala fide, to direct that the shares, if any, allotted are cancelled, to direct the company to allot the unissued shares to the existing members and to declare that the transfer of any shares to third parties who are not existing members was illegal and invalid and to cancel the transfers, if any". What is involved in the above Company Petitions is a dispute between the Company and its directors and shareholders regarding the rectification of shares. On the other hand, the subject matter involved in the suit is the recovery of the money due from the petitioner and respondents 2 to 7 under the chitty transaction. Therefore, it is arduous for this court to say that the issues involved in the Company Petition and present suits are directly or substantially the same.

(3.) It is submitted that the first respondent Company has filed I.P. No. 6/91 before the Sub Court, Thrissur. It is alleged that the petitioner and her husband are defaulters. However, the issue involved in the suits sought to be stayed is not directly and substantially in issue in the Insolvency Proceedings which authorises the invocation of S.10 of C.P.C. It is brought to my notice that in the Insolvency Petition the amounts due under the aforesaid suits are referred to in the Schedule attached thereto. That only means the amounts sought to be recovered from the petitioner and others are the assets of the Company available for distribution and there is no bar for taking steps to recover such amounts from the defaulters.