The court affirmed that prior judgments can establish res judicata, and injunctions against recovery can be valid under specific circumstances despite statutory bars.

JUDGMENT :

Biren Vaishnav, J.

1. This First Appeal arises out of judgement and decree dated 29.09.2004 passed by the Civil Judge (S.D.), Bharuch in Civil Suit No. 221 of 1991. By the aforesaid judgement and decree, the suit of the respondent M/s. Jayprakash Associates for recovery of Rs.1,18,52,013/- was partly allowed and it was declared that the respondent – plaintiff was entitled for recovery of Rs.63,50,347/-.

2. Briefly stated, the facts before the trial court was that the respondent had filed a suit stating that it had been awarded work for construction of Rockfil Dam. On a tender being invited, the bid value offered by the plaintiff – respondent was Rs.37,03,27,311/-. During negotiations, a rebate of Rs. 4,07,36,000/- was offered on the tender value. It was the case of the respondent that no rebate on individual item rates was offered by the plaintiff and thus they were not related to the gross value of work. It was the case of the respondent – plaintiff that the tender was an item rate tender. Due to increase in quantities of certain items of work, the defendant appellant herein recovered about Rs.5.04 crores by way of rebate. Based on the interpretation of the tender terms, it was the case of the plaintiff that the recovery of Rs.63,50,347/- was not due and the defendant was not entitled to recover the said amount. The trial court based on the evidence on record especially concluding that in a prior civil suit being Special Civil Suit No. 265 of 1990, the issue was covered and which was not even challenged by the appellant, the present suit deserved to be decreed in favour of the respondent – plaintiff.

3. Mr. Rohan Lavkumar, learned counsel for the appellant would make the following submissions :

(a) That the trial court erred in granting Prayer C of the suit restraining the defendant from recovering a sum of Rs. 63,50,347/-. That an injunction restraining a party from instituting and prosecuting proceedings in a court not subordinate is specifically barred by Section 41 of the Specific Relief Act, 1963. Hence the judgment and order dated 29th September 2004 is bad in law.

(b) That the continuation of the suit was barred by Section 13 and 21 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992. Considering that the defendant had already raised same as a ground, the trial court ought to have transferred the proceedings to the tribunal.

(c) That the trial court has granted relief beyond what was prayed for by the plaintiff and thus the judgment is bad in law.

(d) That a perusal of the communication between the parties, more specifically communications dated 14th November 1980 and 21st November 1980 would indicate that the rebate offered and committed to by the plaintiff was an overall reduction of 11% of the contract value. The trial court’s finding that the 11% rebate was for a fixed sum of Rs. 4,07,36,004/- and would not be applicable on quantities towards price escalation as well as excess work is contrary to the evidence on record.

3.1 Mr. Lavkumar, learned advocate for the appellant would rely on the decision in the case of Cotton Corporation of India Limited vs. United Industrial Bank Limited and Others reported in (1983) 4 SCC 625 and submit that the trial court could not have passed a decree restraining the Corporation from resorting to a legal remedy. He would also submit that in light of the provisions of the Gujarat Public Works Contract Tribunal, the suit was barred.

4. Mr. Kashyap Joshi, learned counsel for the respondent – original plaintiff would support the judgement of the trial court and submit that essentially when the Civil Suit No. 265 of 1990 was decided in favour of the plaintiff and which was not challenged, the trial court committed no error in holding that it would operate as a res judicata against the defendant – appellant herein.

5. Perusal of the trial court’s decision would indicate that the trial court framed issues wherein Issue No. 2 was with regard to the allegation wheth