Bombay High Court
Raigarh Jute And Textiles Mills Ltd. vs Asset Reconstruction Company(India) ... on 6 August, 2025
Bench: M. S. Karnik, N. R. Borkar
2025:BHC-OS:12848-DB
7-ia 3211-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 3211 OF 2024
AND
INTERIM APPLICATION NO. 2280 OF 2024
IN
WRIT PETITION NO. 3890 OF 2022
Raigarh Jute & Textiles Mills Ltd. ... Applicant
In the matter between
Raigarh Jute & Textiles Mills Ltd. ... Petitioner
Versus
Asset Reconstruction Co (I) Ltd. & Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO. 24564 OF 2024
IN
WRIT PETITION NO. 3890 OF 2022
IFCI Ltd ... Applicant
In the matter between
Raigarh Jute & Textiles Mills Ltd. ... Petitioner
Versus
Asset Reconstruction Co (I) Ltd. & Ors. ... Respondents
.............
Mr. Cyrus Ardeshir, Senior Advocate a/w. Mr. Gaurav Mehta i/b Bachubhai
Munim & Co. for the Applicant/Petitioner.
Mr. Charles D'Souza a/w. Mr. Vinod Kothari, Mr. Kshitij Parekh and Ms.
Aradhya Dixit i/b Apex Law Partners for Respondent No.2.
CORAM : M. S. KARNIK AND
N. R. BORKAR, JJ.
DATED : 06th AUGUST, 2025.
P.C. :
1. This is an application for amendment of the petition. The
amendment sought is at pre-admission stage. We have gone through the
7-ia 3211-24.doc
averments made in the application and heard learned Senior Advocate.
2. Learned counsel for the respondent has made following
submissions: -
(a) IA No. 32 of 2024 is filed by the petitioner to amend the Writ
Petition and raise new grounds to challenge the grant of interest
with monthly rests (instead of simple interest), in favour of R2 vide
the Judgment.
(b) The petitioner preferred an Appeal against the Judgment,
before the DRAT. In those proceedings, only two contentions were
agitated by the petitioner viz. (a) (a) the guarantee was only
executed between the petitioner and IDBI and since the debt of R1
(assignee of IDBI) was already settled, nothing further remained to
be paid; and (b) guarantee was only extended as an interim
arrangement and stood extinguished after R4 created a security in
favour of the Lenders. The issue of alleged improper levy of interest
upon the petitioner was neither pleaded nor sought to be contended
by the petitioner before the DRAT.
(c) Thus, the proposed amendment to include the grounds for
challenging the levy of improper or excessive interest is barred by
constructive res judicata. It is settled law that a plea which was not
taken in prior proceedings cannot be taken in subsequent
proceedings. Thus, the IA for amendment is not tenable and ought
to be dismissed at the threshold.
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(d) In Common Cause v. Union of India (2004) 5 SCC 222, the
Hon'ble Supreme Court observed:
4. We do not think that the abovesaid is a finding recorded
by the learned Judge. Be that as it may, this was not a point
argued before the Court when the civil appeal was taken up
for hearing. A point not argued will be deemed to have been
given up and cannot be permitted to be raised now by filing of
such a petition.
(e) Further, in Transmission Corpn of A.P. v. P. Surya Bhagavan
(2003) 6 SCC 353, the Hon'ble Supreme Court observed:
10. Question as to whether the respondent was overaged
for entry into the service was neither raised in the written
statement nor was it argued before the High Court. Under the
circumstances the appellant cannot be permitted to raise this
point for the first time in this Court. The second point
regarding the delay in filing the petition though was raised in
the written statement, but, it seems the same was not
pressed before the Bench at the time of arguments. It has
not been stated in the grounds of appeal that this point was
raised and argued before the Bench during the course of
arguments and the Bench had failed to notice the same. In
view of this we decline to go into this question as well.
(f) In Shankara Cooperative Housing Society Limited v. M.
Prabhakar and Ors (2011) 5 SCC 607, the Hon'ble Supreme Court
applied the principle of constructive res judicata to High Court
exercising writ jurisdiction under Article 226 and 227 of the
Constitution of India. Notably, the Hon'ble Supreme Court
observed:
"88. In our view, this issue need not detain us for long. This
Court in Devilal Modi v. STO [AIR 1965 SC 1150], has
observed that: (AIR p. 1152, para 8):
"8. .....the rule of constructive res judicata which is
pleaded against him in the present appeal is in a
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sense a somewhat technical or artificial rule prescribed
by the Code of Civil Procedure. This rule postulates
that if a plea could have been taken by a party in a
proceeding between him and his opponent, he would
not be permitted to take that plea against the same
party in a subsequent proceeding which is based on
the same cause of action; but basically, even this view
is founded on the same considerations of public policy,
because if the doctrine of constructive res judicata is
not applied to writ proceedings, it would be open to the
party to take one proceeding after another and urge
new grounds every time; and that plainly is
inconsistent with considerations of public policy......"
(g) In any event, the IA for amendment suffers from delays and
laches. Such contentions were not raised in the earlier amendment
application filed by the petitioner. In fact, at paragraph 17 of the IA
for amendment, the petitioner has admitted that "The petitioner
realised the said issue only while preparing for opposing respondent
No.2's Interim Application (L) No. 24564 of 2024 [seeking withdrawal
of the sum deposited by the petitioner]."
(h) Thus, the petitioner has admitted that the IA for amendment
was only being filed as a counterblast to R2's IA (L) No. 24564 of
2024. Such dilatory and mala fide tactics of the petitioner ought not
to be permitted.
3. The amendment application is filed at pre-admission stage. The
application deserves to be allowed. No prejudice will be caused to the
respondents as the contentions raised by way of amendment can be dealt
with by filing an additional affidavit-in-reply. We have not expressed any
opinion on the merits of the contentions which will form subject matter of
7-ia 3211-24.doc
the amended petition. Same shall be considered after the affidavit-in-
reply is filed by the respondents.
4. For the reasons stated in the application and in the interest of
justice, the application is allowed.
5. Amendment to be carried out within two weeks. Additional affidavit-
in-reply be filed to the amended petition within one week from the date of
serving of the amended copy of the petition. Amended petition be served
on the respondents.
6. All contentions of the parties are kept open.
7. Interim application is disposed of.
IA 2280/24 and IAL 24564/24 in WP No. 3890/22
8. Interim application filed by the secured creditor will be considered
after the amendment is carried out.
9. Request to withdraw the amount will also be considered after the
amendment is carried out.
10. List on 26.08.2025
(N. R. BORKAR, J.) ( M. S. KARNIK, J.)
