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Judgment
[Per: Justice Rakesh Kumar Jain (MJ)] (ORAL)
This Appeal is directed against the Order dated 17.01.2022, by which an Application filed by Mr. Jose Samuel (Operational Creditor) proprietor of M/s. Thankam Cashew Factory against M/s. Royal International Trade & Allied (Corporate Debtor) for Resolution of an amount of Rs.4,03,23,329/- calculated as on 31.10.2017, has been dismissed.
Shorn of unnecessary details, the Tribunal has found that the Appellant had earlier filed CP(IB)/03/KOB/2020 on the same cause of action against the same Respondent for the same amount which was got withdrawn and the present Application has been filed thereafter, without seeking permission of the Tribunal to file the same again on the same cause of action. The detail of both the Applications has been tabulated by the Learned Tribunal which is reproduced as hereunder:
| Case Number | CP(IB)/03/KOB/2020 | CP(IB)/39/KOB/2021 |
| Case Name | Thankam Cashew Factory V Royals International Trade and Allied Products Private Limited. | Jose Samuel V. Royals International Trade and Allied Products Private Limited |
| Filed on | 13.02.2021 | 15.09.2021. |
| Filed by | M/s. Thankam Cashew Factory, represented by its proprietor Shri Jose Samuel through Power of Attorney holder Shri Jackson J. | Shri Jose Samuel. |
| Claim Amount | Rs.2,93,26,058/- | Rs.2,93,26,058/- |
| Debt Amount | Rs.4,00,22,035/- | Rs.4,03,23,239/- |
| Cause of Action | High Sea Sale Contract dated 31.05.2017. | High Sea Sale Contract dated 31.05.2017. |
| Result | In view of the order dated 29.07.2021, CP(IB)/03/KOB/2021 is allowed to be withdrawn. | Present Application |
It is also worthwhile to mention that the earlier Application filed by the Appellant, CP(IB)/03/KOB/2020 was dismissed as withdrawn with Rs.25,000/-as cost and it has been noticed by the Tribunal that the Appellant has not even paid the cost rather filed the present Application.
The Tribunal has further observed that there was an issue of identity of the Applicant (Mr. Jose Samuel). In this regard, the Tribunal has recorded its finding in para 32 and 33 which is reproduced as hereunder:
“32.Now, we may take up the second issue pointed out by the learned counsel for the Corporate Debtor, regarding the identity of the applicant. On a verification of the records, it is seen that nowhere the applicant has put his signature, even though, while the High Sea Sale Contract was executed on 31.05.2017, the same person who, stated to have been filed this application has put his signature. Nowhere in the application, it is stated why the applicant could not sign and on whose presence the Left Thumb impression has been taken and that anybody has counter signed or attested the Left Thumb Impression of the applicant in the application. We therefore relied on Rule 128 of NCLT Rules, 2016 for further clarification. It is stated that
“128. Affidavits of illiterate, visually challenged persons.-
Where an affidavit is sworn or affirmed by any person who appears to be illiterate, visually challenged or unacquainted with the language in which the affidavit is written, the attester shall certify that the affidavit was read, explained or translated by him or in his presence to the deponent and that he seemed to understand it, and made his signature or mark in the presence of the attester in Form No. NCLT 14.”
33.On analysation of the above, we have found that the applicant has not annexed Form No. NCLT 14 with the application. Hence, there is every reason to believe that this application has been filed without the actual knowledge or authority of the applicant, as rightly argued by the learned counsel for the Corporate Debtor.”
The Tribunal has also held that there was a Pre-Existing Dispute between the Parties and in this regard, observations have been made in para 34 which is reproduced as hereunder:
“34.Now, we may take up the issue of 'pre-existing dispute. We have examined Sub-Section 6 of Section 5 of the Code to determine what 'dispute' is. That Section defines as follows:
dispute includes a suit or arbitration proceedings relating to –
(a)the existence of the amount of debt;
(b)the quality of goods or service; or
(c)the breach of a representation or warranty. From the above definitions, it is clear that the Corporate Debtor could establish the above Sub-Section that there is a pre-existing dispute between the parties in this matter regarding the quality of goods or services.”
Counsel for the Appellant has argued that the Tribunal has erred in dismissing the Application on the ground of res judicata. It is submitted that since the earlier Application was not decided on merits, therefore, the principle of res judicata is not attracted and as such the findings recorded by the Tribunal in this regard not sustainable.
However, he has argued that the Appellant has committed only one error of not taking the permission of the Tribunal at the time of withdrawing the earlier Application to file it again on the same cause of action.
Once the Appellant has admitted that the earlier Application was withdrawn for which the cost of Rs.25,000/- was also imposed and no permission was obtained for filing similar Application thereafter and the Appellant had also not deposited the cost which was imposed, the second Application on the same cause of action is hit by Order 23 Rule 1(4)(b) which provides that if the Litigant (Plaintiff) withdraws from the suit or part of a claim without permission referred to in sub-Rule 3 of Rule 23(1) then he shall be liable for such cost as the Court may award and shall be precluded from instituting any fresh suit in respect of the subject matter or such part of the claim.
Counsel for the Appellant has failed to challenge this provision of law which is staring at his face because in case where the Application is withdrawn, then for the purpose of filing the same Application again, it is incumbent upon the party to seek the permission of the Court for that purpose and if the permission is not obtained or granted then the second Application per se is not maintainable. This is a principle of Public Policy to avoid such type of Litigation in the Court, otherwise there would be no end to file this kind of Litigation by the unscrupulous litigants.
In view of the aforesaid discussion, without even going into the other two aspects of the matter decided against the Appellant by the Learned Tribunal, we do not find any merit in the present Appeal and the same is hereby dismissed. No costs.