M/S GUPTE CARDIAC CARE CENTRE AND HOSPITAL versus OLYMPIC PHARMA CARE PVT. LTD.

Citation: [2004] 3 S.C.R. 916 · Decided: 06-04-2004 · Supreme Court of India · Bench: R.C. LAHOTI
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Judgment (excerpt)

A 
MIS GUPTE CARDIAC CARE CENTRE AND HOSPITAL 
,.,. 
v. 
OL YMP!C PHARMA CARE PVT. LTD. 
APRIL 6. 2004 
B 
[R.C. LAHOT! AND ASHOK BHAN, JJ.] 
Code of Civil Procedure, 1908: 
Ss. 25 and IO-Transfer of suit-Two suits arising out of the same 
c transaction filed in two different courts-Plaintiffs in both the suits seeking 
transfer of the other suits-Held, the two suits deserve to be heard and tried 
in one Court-Keeping in view the rule underlying s. I 0, the suit filed 
subsequently is transferred to the court wherein the suit first in point of time 
was instituted, and the said court will set down the c:ases for consolidated 
D 
trial. 
The petitioner hospital and another company filed a suit at Nasik 
against a German Manufacturer and its dealer in India, the respondent, 
for recovery of certain amount including damages, as performance of the 
Heart-Lung Machine purchased by the petitioner from the defendants was 
E not found satisfactory. Subsequently, the respondent dealer also filed a 
suit in the High Court of Delhi against the petitioner hospital for recovery 
of certain amount stated to be the balance price of the machine and interest 
thereon, The petitioner Hospital filed T.P. (C) No. 400 of2003 for transfer 
of the suit at Delhi to Nasik and the dealer filed TP(C) No. 248/2004 
seeking transfer of the suit at Nasik to Delhi, 
F 
Allowing TP(C) No. 400 of 2003 and dismissing TP (C) No. 246 of 
2004, the Court 
HELD: The two suits deserve to be heard and tried in one court. 
For exercise of discretionary jurisdiction under s.25 of the Code of Civil 
G Procedure, 1908, the only consideration which is relevant is 'expediency 
of justice'. The Court will have regard to and respect for the rule enacted 
under s, 10 of the Code whereunder the trial of the suit at Delhi being the 
later suit would be liable to be stayed. Of course, the considerations such 
... j 
as which is the place where most of the evidence is available, convenience 
H 
916 
GUPTECARDIACCARECENTREANDHOSPITAL •·.OLYMPIC PHARMACAREPVT. LTD. [LAHOTI .J.j 9 J 7 
of the parties and witnesses, which one of the two places is more convenient A 
to access and attend and so on are also the factors to be kept in view in 
an appropriate case to direct a transfer of case in departure from the rule 
underlying s.IO of the Code. So far as the present cases are concerned, 
the ordinary rule is followed, as there is no factor or consideration relevant 
for making a departure therefrom. The suit at Delhi is transferred to the B 
Court at Nasik for the purpose of hearing and decision thereat. The Court 
at Nasik may frame consolidated issues taking into consideration the 
pleading in both the cases and thereafter set down the cases for 
consolidated trial. (918-D; 918-F-H; 919-Al 
CIVIL ORIGINAL JURISDICTION : Transfer Petition (C) No. 400 of C 
2003. 
(Under Article 139(A)(I) of the Constitution of India.) 
WITH 
T.P. (C) No. 248 of 2004. 
Kumar Parimal, B.S. Sai, Aniruddha and P. Mayee for the Petitioner. 
P.N. Mishra, Nishant Menon and Umesh Kumar Khaitan, for the 
Respondents. 
The Judgment of the Court was delivered by 
D 
E 
R.C. LAHOTI, J. Gupte Cardiac Care Centre & Hospital (hereinafter 
'the Hospital', for short) representing Healing Touch Angiography and Cardiac 
Surgery Centre Pvt. Ltd, both situated at Nashik, have filed Special Civil Suit 
No. 62 of 2002 in the Court of Civil Judge at Nashik on 20.12.2001. The F 
defendants impleaded therein are Mis. Jostra Medizintechnic AG and Olympic 
Pharma Care Pvt. Ltd. situated respectively at Germany and Delhi, (hereinafter 
referred to as 'manufacturer' and 'dealer', for short). 
Olympic Pharma Care Pvt. Ltd., New Delhi has filed a suit against the G 
hospital in the High Court of Delhi (Original Side) on I0.1.2002, which is 
registered as suit No.190 of 2002. 
It appears that the Hospital needed a Heart-Lung Machine alongwith 
accessories manufactured by the Gennan company (the manufacturer) and 
marketed by the 'Dealer' in India. The machine was delivered and installed. H 
918 
SUPREME COURT REPORTS 
(2004] 3 S.C.R. 
A Disputes arose as the performance of the machine was not found to be 
"'"' 
• 
satisfactory. There was correspondence and notices exchanged and then suits 
filed. The suit filed by the 'Hospital' at Nashik is for recovery of Rs.28,35,000. 
The plaintiffs therein have claimed the return of the advance paid, 
compensation equivalent to the additional amount spent by them for purchasing 
B 
an
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