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TMI Blog2021 (3) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... rall view while observing that though there were some lapses on the part of respondent No. 1 in not filing the claim affidavit, but since the claim affidavit was ready, no prejudice whatsoever would be caused to the petitioner (financial institution). It is to be noted that ultimately the case was required to be decided on the basis of the material evidence placed before the DRAT. The appellants shall file their claim affidavit in the DRT within one week from the date on which the present order is uploaded on the website after duly serving a copy of the same on the opposite party - The application for cross-examination of the witnesses of respondent-financial institution filed by the appellants in main O. A. shall be decided within a period of four weeks including witness action, if any, from today. - Writ Petition (L) No. 4045 of 2020. - - - Dated:- 29-10-2020 - NITIN JAMDAR and MILIND N. JADHAV JJ. Rohit Gupta with Nikhil Rajani instructed by V. Deshpande and Co., for the petitioner. Mihir Thakore , Senior Advocate, with Ms. Megha Jani and Rishabh Shah instructed by Raval Shah and Co., for respondent No. 1. JUDGMENT Heard. 2. Rule. Rule mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 in its capacity as a guarantor to pay to the petitioner a sum of ₹ 377,70,51,204.90 due and payable as on November 30, 2010 together with interest till payment and/or realization. (viii) After invocation of the guarantee, original application before the DRT, Mumbai was amended and various documents and orders were placed on record which had occurred subsequent to the filing of the suit. Winding up proceedings were initiated by the petitioner against respondent No. 1 which were ultimately dismissed on the ground that the guarantee would be enforceable only after adjudication of original application pending before the DRT. (ix) The petitioner filed its claim affidavit dated April 10, 2003 in the original application. The petitioner also filed its additional claim affidavit dated September 4, 2017 subsequently. (x) By order dated September 4, 2017 the DRT directed respondent No. 1 to file its claim affidavit. The DRT granted extension of time to respondent No. 1 on November 2, 2017 and recorded as under : Counsel appearing for IARC is present. Defendant No. 1 is called, absent, no representation. CAOD is not filed by defendant No. 1 . Time is extended as last cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) The Tribunal below shall dispose of the main O. A. as per the directions of the hon'ble High Court given in its order dated February 11, 2020. (6) The appeal is accordingly disposed of. (7) All miscellaneous applications, if any, are dismissed as infructuous. 5. Thus, respondent No. 1 was directed to file its claim affidavit in the DRT and liberty was given to the petitioner to file additional affidavit in reply to the same. Further directions were given to dispose of the original application in terms of this court's order dated February 11, 2020. 6. Mr. Rohit Gupta, learned counsel appearing on behalf of the petitioner submitted that by order dated January 16, 2018 the right of respondent No. 1 to file its claim affidavit stood forfeited because despite passing of the conditional order on November 2, 2017 respondent No. 1 in complete disregard and non-compliance of the said order had requested for further extension of time for filing its claim affidavit. He submitted that by filing Interim Application No. 175 of 2020 before the DRT seeking condonation of delay of 269 days, respondent No. 1 was indirectly seeking a recall of the order dated Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the prin ciple of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be con sidered before the principle is held applicable. One aspect of this question is that which is dealt with in a provision. Like section 105 of the Civil Procedure Code which enacts : '105. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction ; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ramkirpal Shukul v. Mst. Rup Kuari [1883] LR 11 IA 37 (PC) and Bani Ram v. Nanhu Mal [1884] LR 11 IA 181 (PC) such a decision being a decree really terminated the previous proceedings. The fact therefore that the Privy Council in Ramkirpal Shukul v. Mst. Rup Kuari [1883] LR 11 IA 37 (PC) described Mr. Probyn's order as an interlocutory judgment does not justify learned counsel's contention that all kinds of interlocutory judgments not appealed from become res judicata, interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order.' 13 . It is needless to point out that interlocutory orders are of vari ous kinds ; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is appli cable to the decision on a particular issue of fact, even if fresh facts were placed before the court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay, would be bound to take those into account and make an order conformably to the facts freshly brought before the court. 14. This leads us to the consideration of the nature of the court's direction under Order 9, rule 7-the nature of that interlocutory proceeding with a view to ascertain whether the decision of the court under that provision decides anything finally so as to constitute the bar of res judicata when dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e background of the lis between the parties. It records that on June 29, 2020 learned counsel appearing on behalf of the petitioner (applicant No. 2 therein) had itself submitted that since the record in the case was bulky and it required detail arguments, instead of virtual hearing, physical hearing may be taken in the case and had in fact, consented for a short adjournment. Further on July 20, 2020 matter before the DRAT came to be adjourned on the request of both the parties. According to the petitioner delay was required to be calculated from January 16, 2018 and would therefore amount to a delay of two years as against the delay of 269 days argued by respondent No. 1, the DRAT has taken an overall view while observing that though there were some lapses on the part of respondent No. 1 in not filing the claim affidavit, but since the claim affidavit was ready, no prejudice whatsoever would be caused to the petitioner (financial institution). It is to be noted that ultimately the case was required to be decided on the basis of the material evidence placed before the DRAT. The DRAT also reserved liberty to the petitioner to file its additional affidavit in response to the claim af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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