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2022 (2) TMI 142 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - High Sea Sale Contract - Operational Creditors - existence of debt and dispute or not - identity of the applicant - principles of res-judicata - HELD THAT:- The Doctrine of Constructive Res Judicata does not apply to the issues/points or any 'lis' between parties that has not been decided previously, and despite being pleaded, has not been considered by a court/tribunal and expressly dealt with in the order so passed. In Indian law, the principle has been recognized in Section 11 of the Code of Civil Procedure 1908 - while res judicata may have been codified in Section 11, that does not bar its application to other judicial proceedings, such as the one in the present case. In the present case, the applicant has intentionally withdrawn the application after the application has been served on other side, and that, if considered and decided by the Tribunal, the fate will be against the applicant. Moreover, the application was allowed to be withdrawn with costs of ₹ 25,000/- which itself shows that the Tribunal was ready to hear and dispose of the matter so that a final order can be passed. Smelling the outcome, the applicant withdrew the application and filed the present application - It is pertinent to state that the applicant did not obey the directions to pay costs instead he filed the present application, which is definitely hit by res judicata. Thereafter, after an extended period, the costs were paid. Whether the case is finally decided by the Tribunal does not arise, as the intention behind the withdrawal of the application is well known to both parties. Identity of the applicant - HELD THAT:- On a verification of the records, it is seen that nowhere the applicant has put his signature, even though, while the High Sea Sale Contract was executed on 31.05.2017, the same person who, stated to have been filed this application has put his signature. Nowhere in the application, it is stated why the applicant could not sign and on whose presence the Left Thumb impression has been taken and that anybody has counter signed or attested the Left Thumb Impression of the applicant in the application - the applicant has not annexed Form No. NCLT 14 with the application. Hence, there is every reason to believe that this application has been filed without the actual knowledge or authority of the applicant, as rightly argued by the learned counsel for the Corporate Debtor. Pre-existing dispute or not - HELD THAT:- The Corporate Debtor could establish the Sub-Section 6 of Section 5 of the Code to determine what 'dispute' is, and established that there is a pre-existing dispute between the parties in this matter regarding the quality of goods or services. There are no reason to order initiation of Corporate Insolvency Resolution Process against the Corporate Debtor - application dismissed.
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