The judicial principle of constructive res judicata applies where claims could have been previously raised, emphasizing the finality of judicial determinations.

ORDER :

1) The petitioner has preferred the instant petition seeking review/recall of the order dated 12.06.2023 passed in WPC No. 1481 of 2023, whereby the Writ Petition filed by the petitioner was dismissed on two grounds:-

(i) it is hit by constructive res judicata, and

(ii) there is an alternative remedy.

2) Facts of the case as stated in the Writ Petitions are as under:-

A. On 23.05.2012, the petitioner along with its other consortium members, entered into an agreement with National Mineral Development Corporation Limited (for short, ‘NMDC’) for the works of supply of Fabricated Building Steel Structures including Sheeting & Glazing and Receipt, Unloading, Storage and Transportation from Stores to Erection Site, Erection including Supervision etc. relating to Steel Melting Shop (Package No-06) for 3.0 MTPA NMDC integrated steel plant at Nagarnar, Chhattisgarh, for a value of approx. Rs.643.77 Crores.

B. Pursuant to the above-stated agreement, on 29.12.2012 the petitioner placed a letter of award of contract (for short, ‘LAC’) to the M/s Core Fab/respondent No.2, for supply of fabrication and transportation of 2500 MT quantity of E-250 and E-350 grade building steel structure for Steel Melting Shop (Package No.06) for 3.0 MTPA NMDC, Integrated steel plant at Nagarnar, Chhattisgarh for a total value of Rs. 17,78,52,500/-. For the execution of said work, on 06.05.2013 an agreement was executed with respondent No. 2 who failed to supply the said material within the stipulated period i.e. 15 months. Thereafter, the contract agreement was amended on 06.06.2013 and time was extended for supply till 15.01.2016. Initially, respondent No. 2 submitted the performance bank guarantee to the tune of Rs. 75 lakhs, but it failed to furnish any performance bank guarantee for the additional order.

C. Respondent No.2 submitted a bill amounting to Rs. 46,27,70,759/- and after payment and adjustments, the outstanding amount was Rs. 43,60,946/-, out of which, Rs. 10 lakhs was paid to respondent No.2 vide LAC dated 07.07.2018. Thus, the total outstanding amount was Rs.33,60,936/- only.

D. After negotiation, respondent No.2 agreed to have Rs.1.10 crores as a final settlement, out of which, the petitioner released an amount of Rs.75 lakhs at the first instance and the balance amount was agreed to be released in two installments. Respondent No.2 sent an email on 15.01.2019 requesting the petitioner for payment of Rs.47 lakhs.

E. When the petitioner failed to make the balance payment, respondent No. 2 filed a claim petition before respondent No.1, which was registered as case number G/05/S/00169/54 under the provisions of Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (for short, ‘MSMED Act, 2006’) on 31.09.2018, claiming therein the amount of Rs.7, 89,33,137/-.

F. The petitioner, after receiving notice, filed a reply to the claim petition on 03.04.2019 and disputed the said claim.

G. The petitioner filed WP227 No.22/2021 before this Court challenging therein the proceedings initiated by respondent No.1 under Section 18 of the MSMED Act, 2006 thereby making prayer to quash the proceedings on application for reference dated 18.09.2018 on the ground that in conciliation proceedings the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 shall apply, but no notice has been issued for conciliation.

H. This Court vide