IN THE NATIONAL COMPANY LAW TRIBUNAL

AHMEDABAD

COURT - 2 ITEM No.1

C.P. (IB)/116(AHM)2024

Proceedings under Section 94 IBC

IN THE MATTER OF:

Shashank Jayantilal Shah ........Applicant

V/s

Bank of India ........Respondent

Order delivered on: 18/03/2024

Coram:

Mrs. Chitra Hankare, Hon’ble Member(J)

Dr. Velamur G Venkata Chalapathy, Hon’ble Member(T)

PRESENT:

For the Applicant : Mr. Mohit Gupta, Adv.

For the Respondent :

ORDER

1. This is an application filed by personal guarantor/applicant under section 94 of

the Insolvency & Bankruptcy Code, 2016 (hereinafter referred as “IBC” for short) against Financial Creditor/Respondent, for initiating Insolvency Process

in respect of Personal Guarantor.

2. The Personal Guarantor had earlier filed the application under Section 94 of

the IBC for the purpose of initiating Insolvency Process in respect of Personal Guarantor against the present Respondent being case no. C.P.(IB)No. 128/2023. However, the said application came to be dismissed on 31.01.2024 being defective with the liberty to file a fresh on the ground that there is no declaration in terms of Section 94(4) and (5) of IBC. The Personal Guarantor had again filed the application under Section 94 of the IBC for the purpose of initiating Insolvency Process in respect of Personal Guarantor against the present Respondent being case no. C.P.(IB)No. 78/2024. However, the said application came to be dismissed on 23.02.2024 being time barred under

limitation as per Section 238A of the IBC.

3. Now, the present application is once again filed under Section 94 of the Code on the same facts and cause of action. It is observed from the application that there are no fresh evidence to rectify the limitation defect on which the same was rejected.

4. The maintainability of the application stand concluded by the findings of fact by this Tribunal on 23.02.2024. We say so because admittedly no appeal was preferred by the Personal Guarantor. So, the claim attended finality on 23.02.2024 as no appeal was preferred by the Personal Guarantor. This becomes very relevant as in the present third round of litigation, based on the same set of facts which were basis of second litigation, there is re-iteration of same set of fact albeit with some additional documents.

5. Herein comes the doctrine of res-judicata. It is a rule of the estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. The very basic to decide the applicability of question of res-judicata is first to ascertain what were the matters in issue in the previous litigation/proceeding and what was heard and decided.

6. In Bombay Gas Co. Ltd. Vs. Jagannath Pandurang & Others, (1975) 4 SCC

690 in paragraph 11 it is held that the doctrine of res judicata is a whole someone which is applicable not merely to matter governed by the provisions of the Code of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claims. Similarly, in the case of Kaushik Co-operative Building Society Vs. N. Parvathamma and Others, (2017) 13 supreme Court Cases 138 it is held that the doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations. The application of the rule by the courts should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. The rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time. The basic character of this principle is public policy and preventive as to give finality to the decision of the court of competent jurisdiction and prevent further litigation.

7. Needless to say, the general principle underlin