IMPORTANT POINT
The principle of res judicata applies to findings in prior writ proceedings, barring re-litigation in subsequent civil suits, and the suit was also barred by limitation.

ORDER :

Sanjay K. Agrawal, J.

1. Feeling aggrieved and dissatisfied with the judgment & decree dated 18-5-2018 passed by the Judge, Commercial Court (District Level), Naya Raipur in Civil Suit No.5A/2016, this instant first appeal has been preferred under Section 96 of the CPC read with Section 13 of the Commercial Courts Act, 2015, by which the plaintiff/appellant’s Civil Suit No.5A/2016 titled as SKS Ispat & Power Limited v. South Eastern Coalfields Limited has been dismissed by the Commercial Court holding that the suit filed by the appellant herein/plaintiff is hit by the principle of res judicata enshrined in Section 11 of the CPC and the plaintiff is not entitled for exclusion of time spent in writ proceedings before this Court, as Section 14(1) of the Limitation Act, 1963 would have no application.

(For the sake of convenience, parties hereinafter shall be referred as plaintiff and defendant as per their status given by the Commercial Court in the suit.)

Plaintiff's suit: -

2. The plaintiff/appellant herein is a company incorporated under the provisions of the Companies Act, 1956, inter alia, engaged in the business of Steel and Power having its registered office at Mumbai and site office at Siltara, Industrial Growth Centre, Phase-II, 18th Milestone, Bilaspur Road, Raipur. The plaintiff/appellant herein instituted a civil suit against the defendant/respondent herein seeking declaration that the encashment of Commitment Guarantee dated 23-6-2008 (Ex.P-4) for amount of Rs. 2,01,21,000/- by the defendant SECL is null and void and a prayer was also made that decree for recovery of Rs. 2,01,21,000/- be granted in favour of the plaintiff and against the defendant along with interest at the rate of 18% per annum from the date of recovery till the date of payment along with cost of the suit.

3. It is the case of the plaintiff that on 16-8-2004, the appellant herein/plaintiff had entered into a Memorandum of Understanding (MOU) with the Government of Chhattisgarh with a view to set up an integrated plant in the State of Chhattisgarh comprising of Sponge Iron Plant, Power Plant, Steel Plant Melting Shop, Ferro Alloys Plant, Oxygen Plant and Rolling Mills Plant with their own railway siding with an initial investment of approximately Rs. 295.47 crores and thereafter, another MOU was entered into between the plaintiff and the Government of Chhattisgarh on 6-10-2006 (Ex.P-2) for setting up an Integrated Steel Plant having capacity of 1.1 MT per annum with total investment of Rs. 1175 crores. Thereafter, vide Ex.P-16, on 12-12-2007, a notification was issued by the Government of Chhattisgarh putting ban on setting up of new sponge iron plant or any plant which requires coal as well as expansion of such plants in the area of Urla, Siltara and Borjhara. Meanwhile, in order to ensure constant supply of coal to its steel plant and power plant, the plaintiff Company entered into negotiation with the defendant SECL and on 7-11-2008, vide Ex.P-3, Letter of Assurance (LOA) for supply of F grade coal for purported expansion of power plant at Siltara region was issued and on 23-6-2008, Commitment Guarantee (Ex.P-4) amounting to Rs. 2,01,21,000/- was issued in favour of the respondent SECL and same was subsequently extended and made valid up to 7-3-2011. Thereafter, letter dated 4-5-2009 (Ex.P-5) was issued by the plaintiff to the defendant informing that the milestones required to be completed within a period of six months as per the LOA, has been completed and same was reiterated by reminder letter dated 21-5-2009 (Ex.P-6) requesting confirmation. Thereafter, on 23-9-2009, two letters were issued by the defendant to the plaintiff, first one was issued vide Ex.P-7 to furnish additional commitment guarantee of Rs. 60,36,300/- within 15 days alleging discrepancies regarding milestone Nos.2, 5 (part) & 6 (part), and second one was issued vide Ex.P-8 alleging further discrepancies with respect to fulfillment of millstone Nos.2, 4, 5, 6, 8, 9, 10 & 11.