A suit dismissed on grounds of res judicata is valid if the issues have been previously adjudicated between the same parties, preventing re-litigation of the same matters.

JUDGMENT

Rohit Ranjan Agarwal, J.

Heard Sri Sujeet Kumar, learned counsel for the appellant and Sri Amit Shukla, learned counsel for the sole respondent.

2. This first appeal under section 96 of CPC has been filed assailing the judgment and decree dated 24.11.2021 and 08.12.2021 passed by the Presiding Officer, Commercial Court, Gautam Budh Nagar in Original Suit No. 151 of 2021, whereby allowing the application No. 22-Ga filed under Order 7, Rule 11 CPC and dismissing the suit of the plaintiff appellants.

3. Facts leading to the dispute are that the appellants were the partners of unregistered firm M/S Triveni Adhesive Tapes, B-92, Sector 5, NOIDA, Gautam Budh Nagar, while the defendant respondent is the sole proprietor of M/S Parasnath Associates. The firm of the defendant respondent supplied BOPP films to M/S Triveni Adhesive Tapes and raised bills to the tune of Rs. 40,13,882/-. When the firm of the plaintiff appellants failed to make payment arbitration agreement was invoked and matter was referred to the Paper Merchant Association and the Arbitrator made an award on 14.12.2009 for making payment to the defendant respondent of Rs. 48,42,284/-.

4. The award made by the Arbitrator was challenged by Triveni Adhesive Tapes/appellants by filing an application under Section 34 of the Arbitration & Conciliation Act, 1996 [hereinafter referred as the 'Act of 1996'] before the Additional District Judge, Tees Hazari Court, New Delhi. In the said application criminal complaint as to the forgery in respect of bills were also made by the appellants. The Court vide judgment and order dated 13.04.2015 dismissed the application filed under Section 34 of the Act of 1996 as well as found that the allegations of forgery and fabrication were false. Against the order passed under Section 34 , the appellants filed an appeal under Section 37 of the Act of 1996 being F.A.O. No. 167 of 2015 before the Delhi High Court. The said appeal was dismissed by the Delhi High Court on 04.03.2016. Aggrieved by the said order, the appellants filed Special Leave Petition No. 9289 of 2016 before the Apex Court. On 18.04.2016 the said special leave petition was dismissed by the Apex Court. A review petition was moved by the appellants which was also dismissed vide order dated 20.07.2016. In between a complaint under Section 34 0 of Cr.P.C. was filed by the appellants which was dismissed by the Additional District Judge/II, Central Tees Hazari Court, New Delhi on 13.04.2015. Against the said order a criminal appeal was filed being Criminal Appeal No. 836 of 2015 before the Delhi High Court which was dismissed on 08.11.2020.

5. The defendant respondent had filed execution proceedings before the Delhi High Court on 25.05.2015 which was transferred to Tees Hazari District Court on 31.01.2017 on account of change in pecuniary jurisdiction of the Court. The bank accounts of the appellants were attached by order dated 22.02.2019. The execution petition filed at Delhi was disposed off on 27.04.2019 for want of jurisdiction to execute the award passed by the Arbitrator. The contesting defendant respondent, thereafter, filed execution case before the District & Sessions Judge, Gautam Budh Nagar on 27.05.2019 which is still pending.

6. In the meantime, the appellants had filed Original Suit No. 151 of 2021 before the Commercial Court, Gautam Budh Nagar claiming relief of declaration, declaring that there was no arbitration agreement in existence between the p