ORDER : Sanjay K. Agrawal, J. 1. Feeling aggrieved and dissatisfied with the judgment & decree dated 18-5-2018 passed by the Judge, Commercial Court (District Level), Naya Raipur in Civil Suit No.5A/2016, this instant first appeal has been preferred under Section 96 of the CPC read with Section 13 of the Commercial Courts Act, 2015, by which the plaintiff/appellant’s Civil Suit No.5A/2016 titled as SKS Ispat & Power Limited v. South Eastern Coalfields Limited has been dismissed by the Commercial Court holding that the suit filed by the appellant herein/plaintiff is hit by the principle of res judicata enshrined in Section 11 of the CPC and the plaintiff is not entitled for exclusion of time spent in writ proceedings before this Court, as Section 14(1) of the Limitation Act, 1963 would have no application. (For the sake of convenience, parties hereinafter shall be referred as plaintiff and defendant as per their status given by the Commercial Court in the suit.) Plaintiff's suit: - 2. The plaintiff/appellant herein is a company incorporated under the provisions of the Companies Act, 1956, inter alia, engaged in the business of Steel and Power having its registered office at Mumbai and site office at Siltara, Industrial Growth Centre, Phase-II, 18th Milestone, Bilaspur Road, Raipur. The plaintiff/appellant herein instituted a civil suit against the defendant/respondent herein seeking declaration that the encashment of Commitment Guarantee dated 23-6-2008 (Ex.P-4) for amount of Rs. 2,01,21,000/- by the defendant SECL is null and void and a prayer was also made that decree for recovery of Rs. 2,01,21,000/- be granted in favour of the plaintiff and against the defendant along with interest at the rate of 18% per annum from the date of recovery till the date of payment along with cost of the suit. 3. It is the case of the plaintiff that on 16-8-2004, the appellant herein/plaintiff had entered into a Memorandum of Understanding (MOU) with the Government of Chhattisgarh with a view to set up an integrated plant in the State of Chhattisgarh comprising of Sponge Iron Plant, Power Plant, Steel Plant Melting Shop, Ferro Alloys Plant, Oxygen Plant and Rolling Mills Plant with their own railway siding with an initial investment of approximately Rs. 295.47 crores and thereafter, another MOU was entered into between the plaintiff and the Government of Chhattisgarh on 6-10-2006 (Ex.P-2) for setting up an Integrated Steel Plant having capacity of 1.1 MT per annum with total investment of Rs. 1175 crores. Thereafter, vide Ex.P-16, on 12-12-2007, a notification was issued by the Government of Chhattisgarh putting ban on setting up of new sponge iron plant or any plant which requires coal as well as expansion of such plants in the area of Urla, Siltara and Borjhara. Meanwhile, in order to ensure constant supply of coal to its steel plant and power plant, the plaintiff Company entered into negotiation with the defendant SECL and on 7-11-2008, vide Ex.P-3, Letter of Assurance (LOA) for supply of F grade coal for purported expansion of power plant at Siltara region was issued and on 23-6-2008, Commitment Guarantee (Ex.P-4) amounting to Rs. 2,01,21,000/- was issued in favour of the respondent SECL and same was subsequently extended and made valid up to 7-3-2011. Thereafter, letter dated 4-5-2009 (Ex.P-5) was issued by the plaintiff to the defendant informing that the milestones required to be completed within a period of six months as per the LOA, has been completed and same was reiterated by reminder letter dated 21-5-2009 (Ex.P-6) requesting confirmation. Thereafter, on 23-9-2009, two letters were issued by the defendant to the plaintiff, first one was issued vide Ex.P-7 to furnish additional commitment guarantee of Rs. 60,36,300/- within 15 days alleging discrepancies regarding milestone Nos.2, 5 (part) & 6 (part), and second one was issued vide Ex.P-8 alleging further discrepancies with respect to fulfillment of millstone Nos.2, 4, 5, 6, 8, 9, 10 & 11. The plaintiff replied to both the letters/show cause notices on 6-10-2009 vide Ex.P-12 demonstrating the status of milestones achieved by it and further stated that performance of Letter of Assurance (LOA) has become impossible in view of the notification dated 12-12-2007 (Ex.P-16) issued by the State Government and consequently, invoked force majeure clause of the LOA. Ultimately, on 7-12-2009, vide Ex.P-13, the defendant by its letter, forfeited the Commitment Guarantee and withdrawn the LOA issued to the plaintiff, and consequently, on 16-12-2009, the Bank Guarantee was encashed by the defendant vide Ex.P-14. 4. Ultimately, on 7-12-2009, vide Ex.P-13, the defendant by its letter, forfeited the Commitment Guarantee and withdrawn the LOA issued to the plaintiff, and consequently, on 16-12-2009, the Bank Guarantee was encashed by the defendant vide Ex.P-14. 4. It is the further case of the plaintiff that he filed W.P.(C) No.577/2010 titled as S.K.S. Ispat & Power Limited v. South Eastern Coalfields Ltd., vide Ex.D-1, seeking writ/writs quashing the forfeiture of Bank Guarantee vide Ex.P-13 and also a prayer was made for directing the defendant to return the amount of Commitment Guarantee along with interest to the plaintiff. The said writ petition was ultimately dismissed by this Court on 19-1-2012 vide Ex.D-6 and impugning validity and correctness of the order passed in the writ petition, the plaintiff preferred Writ Appeal No.111/2012 titled as SKS Ispat & Power Limited v. South Eastern Coalfields Limited vide Ex.D-6 which was also dismissed by this Court on 22-1-2015 finding no merit against which the plaintiff preferred Special Leave Petition before the Supreme Court which was also dismissed giving liberty to the plaintiff to file civil suit, if permissible, vide Ex.P-20. Thereafter, civil suit was filed claiming declaration that encashment of the Commitment Guarantee dated 23-6-2008 is null and void and decree for recovery of Rs. 2,01,21,000/- be granted in favour of the plaintiff and against the defendant along with interest and cost. Written Statement by the defendant: - 5. The defendant filed written statement denying the plaint allegation stating inter alia and taking preliminary objection that the suit is barred by the principle of res judicata, as the issue in question has already been considered and decided by this Court in the writ petition preferred by the plaintiff, which has further been affirmed by Division Bench in writ appeal and further the SLP against the same preferred at the instance of the defendant/SECL has also been dismissed and secondly, that the suit as framed and filed is barred by limitation, as the suit is for recovery of money and limitation is 3 years from the date of cause of action first arose, therefore, the suit is barred by limitation, as such, the suit deserves to be dismissed with cost. Issues framed along with Conclusion thereon: - 6. The Commercial Court on perusal of pleadings and documents, framed following issues for determination: - Issues Conclusion 1. Whether the suit is barred by res judicata? Yes 2. Issues framed along with Conclusion thereon: - 6. The Commercial Court on perusal of pleadings and documents, framed following issues for determination: - Issues Conclusion 1. Whether the suit is barred by res judicata? Yes 2. Whether the defendant has illegally encashed the bank guarantee submitted by the plaintiff amounting Rs. 2,01,21,000/-? This issue do not remain alive, hence cannot be entertained. 3. Whether the plaintiff is entitled for the interest @ 18% per annum on the aforesaid amount? This issue do not remain alive, hence cannot be entertained. 4. Relief and cost? As per decree Additional Issue 5. Whether the suit is barred by law of limitation? Yes Findings of the Commercial Court: - 7. The Commercial Court dismissed the suit recording two findings on two issues, firstly, that the suit is barred by the principle of res judicata enshrined in Section 11 of the CPC and secondly, the suit is also barred by limitation, as the suit has been filed for recovery of money after 3 years from the date the cause of action arose and the plaintiff is not entitled for the benefit of Section 14(1) of the Limitation Act, 1963. Submissions on behalf of the plaintiff: - 8. Mr. Ankit Singhal, learned counsel appearing for the appellant herein/plaintiff, would submit as under: - 1. The suit is not barred by the principle of res judicata, as the plaintiff has bona fidely, raised dispute before this Court by filing writ petition under Article 226 of the Constitution of India and in the event of dismissal of writ petition, writ appeal was preferred though dismissed, but in SLP, the Supreme Court has granted liberty to the plaintiff to file civil suit, as such, the civil suit could not have been dismissed as barred by the principle of res judicata and the said finding deserves to be set-aside. Reliance has been placed upon the decision of the Supreme Court in the matter of Canara Bank v. N.G. Subbaraya Setty and another, (2018) 16 SCC 228 in support of this contention. 2. Reliance has been placed upon the decision of the Supreme Court in the matter of Canara Bank v. N.G. Subbaraya Setty and another, (2018) 16 SCC 228 in support of this contention. 2. The plaintiff is also entitled for exclusion of the period spent in prosecuting the writ petition and the writ appeal by virtue of Section 14(1) of the Limitation Act, 1963, as writ petition and writ appeal remained pending before this Court from 1-2-2010 to 19-1-2012 and from 29-2-2012 to 22-1-2015, respectively, therefore, the time spent in writ petition and writ appeal deserves to be excluded in computing the period of limitation and if the same is excluded, the plaintiff’s suit will be within the period of limitation, as such, the appeal be allowed and decree be granted accordingly in favour of the plaintiff. Further reliance has been placed upon the decisions of the Supreme Court in the matters of Rameshwarlal v. Municipal Council, Tonk and others, (1996) 6 SCC 100 , Shakti Tubes Limited Through Director v. State of Bihar and others, (2009) 1 SCC 786 and Union of India and others v. West Coast Paper Mills Ltd. and another (III), (2004) 3 SCC 458 to buttress his submission. Submissions on behalf of the defendant: - 9. Mr. H.S. Ahluwalia, learned counsel appearing for the respondent herein/defendant, would support the impugned judgment & decree and submit that since the writ petition was adjudicated on merits and order dated 23-6-2008 has been held to be valid by the constitutional court and adjudicated on merits which has been affirmed in writ appeal and special leave petition has also been dismissed as withdrawn, therefore, the principle of res judicata would squarely attract and furthermore, since the suit has been decided on merits, Section 14(1) of the Limitation Act, 1963 would have no application in facts of the case and in that view of the matter, the Commercial Court is absolutely justified in dismissing the suit as barred by limitation, as such, the appeal deserves to be dismissed along with cost(s). 10. Points for determination under Order 41 Rule 31(a) of the CPC: - 1. Whether the Commercial Court is justified in holding the suit to be barred by the principle of res judicata? 2. 10. Points for determination under Order 41 Rule 31(a) of the CPC: - 1. Whether the Commercial Court is justified in holding the suit to be barred by the principle of res judicata? 2. Whether the Commercial Court is justified in holding that the suit is barred by limitation and the plaintiff is not entitled for exclusion of the time spent in writ proceedings by virtue of Section 14(1) of the Limitation Act, 1963? Answer to point No.1 (Whether the Commercial Court is justified in holding the suit to be barred by the principle of res judicata ?): - 11. The suit filed by the appellant herein/plaintiff has been dismissed by the Commercial Court finding that the suit is barred by the principle of res judicata enshrined in Section 11 of the CPC holding that the plaintiff has earlier filed writ petition being W.P.(C) No.577/2010 seeking quashment of order dated 7-12-2009 invoking the commitment guarantee of Rs. 2,01,21,000/- and withdrawing the letter of assurance (LOA) dated 7-11-2008, which was dismissed by the writ court by order dated 19-1-2012 on merits and the writ appeal filed by the plaintiff being W.A.No.111/2012 was also dismissed by the Division Bench of this Court on 22-1-2015 on merits and the SLP preferred by the appellant/plaintiff has also been dismissed with liberty to file civil suit, if permissible, in accordance with law. 12. In order to answer the plea raised at the Bar, it would be appropriate to notice Section 11 of the CPC, which states as under:- “11. Res judicata—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.—The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.” 13. Explanation I.—The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.” 13. The object and purport of the principle of res judicata as contained in Section 11 of the CPC is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. The doctrine of res judicata is conceived not only in larger public interest which requires that all litigation must, sooner than later, come to an end but is also founded on equity, justice and good conscience. (See Swamy Atmananda and others v. Sri Ramakrishna Tapovanam and others, (2005) 10 SCC 51 .) 14. In the matter of Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941 , the Supreme Court has held that Section 11 of the CPC enacts the rule of conclusiveness of judgment as to the points decided, in every subsequent suit between the same parties. 15. Sir William B. Hale made remarkable observations on the applicability of principle of res judicata in the following words in the matter of Duchess of Kingstone's case [2 Smith Leading Cases, 13 th Ed. Pages 644-645 : “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first that the judgment of a Court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly, that the judgment of a Court of exclusive jurisdiction, directly on the point, is in like manner, conclusive upon the same matter, between the same parties, coming, incidentally in question in another Court, for a different purpose. But neither the judgment of a Court of concurrent or exclusive jurisdiction, is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” 16. Recently, the Supreme Court in the matter of Srihari Hanumandas Totala v. Hemant Vithal Kamat and others, (2021) 9 SCC 99 , laid down the principles to determine whether the suit is barred by res judicata and held as under: - “25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the “previous suit” is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.” 17. However, in the present case, we are required to consider whether the finding recorded by the writ court in its order passed in the writ petition preferred by the plaintiff under Article 226 of the Constitution of India on the subject matter in controversy between the same parties after full contest on merit, would operate as res judicata in a separate and subsequent regular civil suit before the Commercial Court with respect to recovery of the amount of commitment guarantee. It is well settled law that a decision in previous proceeding including in the proceeding under Article 226 of the Constitution, though is not a suit, yet, will be binding on the parties in the subsequent suit on the principle of res judicata. In this regard, pertinent decisions of the Supreme Court may be noticed herein. 18. In the matter of Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 , Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, interest reipublicae ut sit finis litium, otherwise great oppression might be done under colour and pretence of law. 19. In this regard, pertinent decisions of the Supreme Court may be noticed herein. 18. In the matter of Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 , Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, interest reipublicae ut sit finis litium, otherwise great oppression might be done under colour and pretence of law. 19. In the matter of Daryao v. State of U.P., AIR 1961 SC 1457 , the Constitution Bench of the Supreme Court speaking through P.B. Gajendragadkar, J. while explaining the rule of res judicata held that the decision rendered in the writ petition on merits would be binding upon the parties unless it is set aside, and their Lordships pertinently observed as under: - “26. … if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. ...” 20. Thereafter, in the matter of Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 , again, the Constitution Bench held that the decision in earlier writ petition on merits would operate as res judicata in subsequent suit involving the same question and the same reliefs. Their Lordships observed as under: - “61. … Articles 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We therefore hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.” 21. We therefore hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.” 21. In the matter of Union of India v. Nanak Singh, AIR 1968 SC 1370 , following the three-Judge Bench decision of the Supreme Court in the matter of State of Punjab v. Bua Das Kaushal, (1970) 3 SCC 656 , their Lordships of the Supreme Court held that the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. Their Lordships further held that it prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings, and observed as under: - “5. This Court in Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 , observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject- matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. The Court in Gulabchand case left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided.” 22. The aforesaid principle has been followed in the matter of Smt. Pujari Bai etc. v. Madan Gopal (dead) L.Rs. viz. Smt. Jaiwanti and others, AIR 1989 SC 1764 in which it has been held as under: - “24. It thus becomes clear that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy. ...” 23. In the matter of Ashok Kumar Srivastav v. National Insurance Company Ltd. and others, (1998) 4 SCC 361 , the Supreme Court has clearly held that an issue heard finally and decided by a High Court in a petition under Article 226 and/or 227 of the Constitution of India would operate as res judicata when the matter again comes before the High Court by way of an appeal under Section 100 of the CPC and carved out an exception that res judicata does not operate to detriment or impairment of functional rights. It has been observed by their Lordships of the Supreme Court in their report as under: - “11. It is well-nigh settled that a decision on an issue raised in a writ petition under Article 226 or Article 32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right. It is well-nigh settled that a decision on an issue raised in a writ petition under Article 226 or Article 32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right. A Constitution Bench of this Court has considered the applicability of the rule of res judicata in writ proceedings under Article 32 of the Constitution in Daryao v. State of U.P., AIR 1961 SC 1457 and it was held that the basis on which the rule rests is founded on consideration of public policy and it is in the interest of public at large that a finality should attach to the binding decision pronounced by a court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over in the same kind of litigation. 12. This was reiterated by another Constitution Bench of this Court in Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 1013 . The following is the ratio: "Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India." 13. Though the above has now become an accepted legal position (vide G.K. Dudani v. S.D. Sharma, 1986 Supp SCC 239) the contention raised here is that since the writ petition was in challenge of an order passed in execution of a decree, the decisions rendered in such writ petition would only remain in the realm of execution and they would not preclude the parties to the suit from raising such issues over again when the very decree itself is challenged in appeal. Explanation VII added to Section 11 of the Code of Civil Procedure as per CPC Amendment Act 104 of 1976 reads thus: "The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree." 14. Though the said explanation may not stricto sensu apply to the trial stage, the principle couched in it must gain application thereto. It is immaterial that the writ petition was filed only subsequently because the findings made therein became final as no appeal was filed against the judgment. The basic idea in the rule of res judicata has sprouted from the maxim "nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). In Y.B. Patil v. Y.L. Patil, (1976) 4 SCC 66 a three-Judge Bench of this Court considered the effect of a decision rendered in a writ petition at subsequent stages of the same its. It held: (SCC Headnote) "The principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding." 24. In the matter of State of Tamil Nadu v. State of Kerala and another, (2014) 12 SCC 696 , the Constitution Bench of the Supreme Court following the earlier decisions in Daryao (supra), Gulabchand Chhotalal Parikh (supra) and Nanak Singh (supra) has held that for the applicability of rule of res judicata, the important thing that must be seen is that the matter was directly and substantially in issue in the previous proceeding and a decision has been given by the Court on that issue. The Constitution Bench has further held that a decision on issue of fact in the previous proceeding — such proceeding may not be in the nature of suit — constitutes res judicata in the subsequent suit. Their Lordships observed as under: - “Res judicata 161. The Constitution Bench has further held that a decision on issue of fact in the previous proceeding — such proceeding may not be in the nature of suit — constitutes res judicata in the subsequent suit. Their Lordships observed as under: - “Res judicata 161. It is true that the 2006 judgment was rendered in exercise of the jurisdiction of this Court under Article 32 of the Constitution and the petitions which were transferred to this Court under Article 139-A but to say that such judgment does not bind this Court while deciding the present suit, which confers exclusive jurisdiction upon it, is not correct. The earlier decision of this Court by no stretch of imagination can be regarded as a judgment rendered without jurisdiction. A finding recorded by this Court in the proceedings under Article 32 is as effective and final as in any other proceedings. 162. The rule of res judicata is not merely a technical rule but it is based on high public policy. The rule embodies a principle of public policy, which in turn, is an essential part of the rule of law. In Duchess of Kingston, (1776) 2 Smith LC 644 at p. 645 (13 Edn.), the House of Lords (in the opinion of Sir William de Grey) has observed: “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.” 163. Corpus Juris explains that res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation; and the other, the hardship on the individual that he should be vexed twice for the same cause. 168. 168. Nanak Singh has been followed by a three-Judge Bench of this Court in Bua Das Kaushal, State of Punjab v. Bua Das Kaushal, (1970) 3 SCC 656 . In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings. The legal position with regard to rule of res judicata is fairly well settled that the decision on a matter in controversy in writ proceeding (Article 226 or Article 32 of the Constitution) operates as res judicata in subsequent suit on the same matters in controversy between the same parties. For the applicability of rule of res judicata it is not necessary that the decision in the previous suit must be the decision in the suit so as to operate as res judicata in a subsequent suit. A decision in previous proceeding, like under Article 32 or Article 226 of the Constitution, which is not a suit, will be binding on the parties in the subsequent suit on the principle of res judicata. 169. For the applicability of rule of res judicata, the important thing that must be seen is that the matter was directly and substantially in issue in the previous proceeding and a decision has been given by the Court on that issue. A decision on issue of fact in the previous proceeding — such proceeding may not be in the nature of suit — constitutes res judicata in the subsequent suit.” 25. As such, it is authoritatively held by their Lordships of the Supreme Court that once an issue has been heard finally and decided by writ Court in a writ proceeding under Article 226 of the Constitution of India on merits after full contest and issue in the writ proceeding as well as issue in the previous and subsequent proceeding, both are one and same, the said finding would operate as res judicata in a subsequent proceeding involving the same issue between the same parties. Now, this would bring us to the next question as to whether the issue in previous writ proceedings and in subsequent civil suit is one and same or not. 26. Now, this would bring us to the next question as to whether the issue in previous writ proceedings and in subsequent civil suit is one and same or not. 26. In this regard, it would be appropriate to notice that in the writ proceeding filed by the plaintiff before this Court being W.P. (C)No.577/2010, order dated 7-12-2009 invoking the commitment guarantee of Rs. 2,01,21,000/- and withdrawing the letter of assurance (LOA) were questioned and refund was sought by him. For the sake of convenience, relief sought by the plaintiff in the writ petition (Ex.D-1) is quoted herein-below: - “10.1 The Hon'ble Court be pleased to call the entire records pertaining to present case from the respondents. 10.2 The Hon'ble Court be pleased to issue a writ in the nature of certiorari for quashing of impugned order contained in Annexure P-12. 10.3 The Hon'ble Court be pleased to issue a appropriate writ or direction to the Respondents to refund the bank guarantee (Commitment guarantee) with interest to the petitioner. 10.4 The Hon'ble Court be pleased to issue appropriate direction to the Respondent No.1 to continue with the promises made in LOA and supply the coal to petitioner. 10.5 Any other order(s), direction(s), writ(s), which the Hon'ble Court may deem fit in the facts and circumstances of the case." 27. The said writ petition was dismissed by this Court on merits by order dated 19-1-2012 (Ex.D-6) by recording a finding as under: - "16. Thus, there is no infirmity or illegality in the impugned order dated 7.12.2009 (Annexure - P/12) warranting interference by this Court, in exercise of power under Article 226 of the Constitution of India." 28. Feeling dissatisfied and aggrieved against that order, the plaintiff preferred writ appeal before this Court being W.A. No.111/2012 in which the writ appellate Court affirmed the order of the writ court (Ex.D-6) and held in paragraph 14 as under: - "14. The writ petition had been instituted with an infructuous cause of action. The Bank guarantee had stood encashed before institution. There was no challenge to the encashment. An indirect challenge was sought to be made by questioning the withdrawal/cancellation of the LOA on a ground which has already been held to be pretentious and wholly wrong to the knowledge of the Appellant itself. The Bank guarantee had stood encashed before institution. There was no challenge to the encashment. An indirect challenge was sought to be made by questioning the withdrawal/cancellation of the LOA on a ground which has already been held to be pretentious and wholly wrong to the knowledge of the Appellant itself. It is therefore not considered necessary to deal with precedents cited on behalf of the Respondent with regard to the encashment of the Bank guarantee." 29. The plaintiff questioned the order of the writ appellate Court before the Supreme Court by filing special leave petition being Special Leave to Appeal (C) No.16581/2015 and the said SLP was dismissed as withdrawn on 13-7-2015 vide Ex.P-20 with following observation: - "After making arguments for some time, Mr. Sidharth Luthra, learned senior counsel appearing for the petitioner, seeks permission to withdraw this special leave petition inasmuch as the petitioner wants to file a civil suit. The special leave petition is accordingly dismissed as withdrawn. If the petitioner is entitled to file civil suit in accordance with law, he shall be permitted to do so." 30. As such, the finding recorded by the writ court in the proceeding under Article 226 of the Constitution of India affirmed by the Division Bench of this Court in writ appeal and further affirmed by the Supreme Court upon withdrawal of special leave petition, is effective and final as in any other proceeding, however, it was subject to liberty. 31. Thereafter, the plaintiff filed civil suit being Civil Suit No.5A/2016 for declaration that invocation of Commitment Guarantee is void and for recovery of Rs. 31. Thereafter, the plaintiff filed civil suit being Civil Suit No.5A/2016 for declaration that invocation of Commitment Guarantee is void and for recovery of Rs. 2,01,21,000/- along with pendente lite and future interest @ 18% per annum, and prayed for following reliefs:- "(a) Pass an order declaring the encashment of the Bank Guarantee No.0853608BG0000139 dated 23.06.2008 amounting to Rs.2,01,21,000/- (Rupees Two Crores One Lakh and twenty one thousand) by the Defendant as void and not in terms of the Bank Guarantee, and consequently return the amount of the Bank Guarantee to the Plaintiff with interest; and (b) Pass a decree for recovery of Rs.2,01,21,000/-(Rupees Two Crores One Lakh and twenty one thousand) in favour of the Plaintiff and against the Defendant; and (c) Pass a decree in favour of the Plaintiff and against the Defendant for payment of pendent lite and future interest @ 18% per annum on the Rs.2,01,21,000/-(Rupees Two Crores One Lakh and twenty one thousand) until such time the above amount is not recovered. (d) Award costs of the Suit in favour of the Plaintiff; and/or (e) pass such other Order or Orders as may be deemed fit and proper in the facts and circumstances of the present case." 32. A careful perusal of the issue raised in the writ petition and the issue raised in the plaint would show that refund of commitment guarantee of Rs. 2,01,21,000/- was also claimed in the writ petition (Ex.D-1) at paragraph 10.3 of the writ petition and further, same relief of recovery of Rs. 2,01,21,000/- was claimed in the civil suit. As such, the issue raised in the writ petition was directly and substantially in issue in the civil suit subsequently filed. What was challenged in the writ petition is invocation of commitment guarantee of Rs. 2,01,21,000/- was claimed in the civil suit. As such, the issue raised in the writ petition was directly and substantially in issue in the civil suit subsequently filed. What was challenged in the writ petition is invocation of commitment guarantee of Rs. 2,01,21,000/- by withdrawing the letter of assurance (LOA) and refund of the amount of commitment guarantee was substantially in issue in the civil suit as well as in the writ petition in which the writ court on merits held that withdrawal of the letter of assurance is in accordance with law and consequently, upheld the invocation of commitment guarantee in favour of the defendant and relief of refund of the amount of commitment guarantee was sought in the civil suit and in that view of the matter, the Commercial Court held that the finding recorded by the writ court and affirmed by the writ appellate Court on the issue of invocation of the amount of commitment guarantee would operate as res judicata and the suit is hit by the principle of res judicata enshrined in Section 11 of the CPC. 33. It was contended by learned counsel for the appellant herein/plaintiff that liberty was granted to the plaintiff by the Supreme Court to file civil suit. However, liberty granted by the Supreme Court was conditional with a caveat and the plaintiff is entitled to file civil suit if permissible in accordance with law. Liberty granted by the Supreme Court was subject to the condition that if the plaintiff is entitled to file civil suit in accordance with law, he may do so and certainly if the civil suit is barred by the principle of res judicata, then the Commercial Court was absolutely justified in taking cognizance of it and holding that suit filed by the plaintiff is hit by the principle of res judicata. The first point is answered accordingly and as such, the decision of the Supreme Court cited by Mr. Ankit Singhal, learned counsel for the appellant, in this regard i.e. Canara Bank (supra) is distinguishable on its own facts. Answer to point No.2 (Whether the Commercial Court is justified in holding that the suit is barred by limitation and the plaintiff is not entitled for exclusion of the time spent in writ proceedings by virtue of Section 14(1) of the Limitation Act, 1963?): - 34. Answer to point No.2 (Whether the Commercial Court is justified in holding that the suit is barred by limitation and the plaintiff is not entitled for exclusion of the time spent in writ proceedings by virtue of Section 14(1) of the Limitation Act, 1963?): - 34. The plaintiff's suit has also been dismissed by the Commercial Court to be barred by limitation holding that the cause of action first arose on 7-12-2009, whereby the defendant had encashed the commitment guarantee amounting to Rs. 2,01,21,000/- and claimed for recovery of said amount. It has further been held by the Commercial Court that a period of almost 7 years has elapsed from the date when cause of action first arose in the present case. It has also been held that as per the Limitation Act, 1963, the claim for recovery of money is to be filed within 3 years from the date on which the cause of action arose, however, the instant suit has been filed by the plaintiff on 3-2-2016 after a delay of around 4 years and the plaintiff cannot be allowed to take the benefit of Section 14(1) of the Limitation Act, 1963 and therefore the suit is barred by limitation. In this regard paragraph 24 of the finding of the Commercial Court may be noticed herein profitably, which states as under: - "24. It is manifestly clear from the bare perusal of Section 14(1) of the limitation Act, 1963, that this Section provides that the time spent in prior proceedings is liable to be excluded provided that the proceedings relates to the same matter wherein issue and prosecuted in good faith in the wrong Court. In the present matter, the plaintiff chose to avail the remedy of filing writ petition under Article 226 of the Constitution and failed on merits, thus, time spent in prosecuting that remedy before the Hon'ble High Court cannot be excluded in computing limitation period. Section 14(1) of the Limitation, 1963 cannot be applicable in the present case. The cause of action first arose on 07.12.2009, whereby the defendant herein had encashed the bank guarantee amounting to Rs. 20121000/-. A period of almost 7 years has been elapsed from the date when cause of action first arose in the present case. Section 14(1) of the Limitation, 1963 cannot be applicable in the present case. The cause of action first arose on 07.12.2009, whereby the defendant herein had encashed the bank guarantee amounting to Rs. 20121000/-. A period of almost 7 years has been elapsed from the date when cause of action first arose in the present case. As per the Limitation Act, 1963, the claim for recovery of money is to be filed within 3 years from the date on which the cause of action arose. The plaintiff herein filed a suit on 03.02.2016 after a delay of around 4 years. Therefore, this Court is of the view that the suit filed by the plaintiff is barred by the law of Limitation. Therefore, the suit instituted by the plaintiff is not maintainable before this Court." 35. Admittedly, cause of action for claiming refund of the amount of commitment guarantee arose on 7-12-2009, whereby the letter of assurance (LOA) was withdrawn and immediately thereafter, bank guarantee was encashed on 16-12-2009, whereas the suit was filed only on 3-2-2016 which is claimed to be barred by limitation by the defendant and which the plaintiff has claimed that benefit under Section 14(1) of the Limitation Act, 1963 be granted by excluding the time spent in prosecuting writ proceedings. Section 14(1) of the Limitation Act, 1963 states as under: - "14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." 36. A careful perusal of Section 14(1) of the Limitation Act, 1963 would show that it is the protection against the bar of limitation of a person honestly doing his best to get his case tried on the merits, but failing through the Court being unable to give him such a trial. A careful perusal of Section 14(1) of the Limitation Act, 1963 would show that it is the protection against the bar of limitation of a person honestly doing his best to get his case tried on the merits, but failing through the Court being unable to give him such a trial. In order to invoke this provision, it is essential that the Court in which the prior civil proceeding was prosecuted, must have been unable to entertain it for the reasons specified, namely, defect of jurisdiction or other cause of a like nature. The benefit of Section 14(1) cannot be extended in a case where the prior proceeding was dismissed on merits. 37. In this regard, decision of the Supreme Court in the matter of Gurdit Singh and others etc. v. Munsha Singh and others etc., AIR 1977 SC 640 may be noticed herein pertinently in which their Lordships have held that three important conditions have to be satisfied before Section 14(1) of the Limitation Act, 1963 can be pressed into service, and observed as under: - “16. It would be noticed that three important conditions have to be satisfied before the section can be pressed into service. These three conditions are- (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it and (3) the earlier proceeding and the later proceeding must be based on the same cause of action." Thereafter, their Lordships in paragraph 17 held that "defect of jurisdiction" means that the defect must have been of an analogous character barring the court from entertaining the previous suit, and observed as under: - "17. Now the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important. Their scope has to be determined according to the rule of Ejusdem Generis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit. Their scope has to be determined according to the rule of Ejusdem Generis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit. A Full Bench of the Lahore High Court consisting of Harries C.J. Abdur Rahaman, J and Mahajan J. (as he then was) expressed a similar view in Bhai Jai Kishan Singh v. People Bank of Northern India, (AIR 1964 Lah 136) (FB) (supra)." 38. Thereafter, in the matter of Zafar Khan and others v. Board of Revenue, U.P., and others, AIR 1985 SC 39 , the Supreme Court has held that if the party seeking benefit of the provision of Section 14(1) of the Limitation Act, 1963, failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Section 14, and observed as under: - "14. The next limb of the submission was that as in the former proceeding restitution was refused on the ground that in the proceeding under the 1953 Act the land in dispute was allotted to the respondents and the allotment had become final, it can safely be said that the proceeding failed on account of a cause of like nature such as defect of jurisdiction and the appellants would be entitled to exclude the time spent in that proceeding while computing the period of limitation in the suit. It is true that where the expression as A whole reads from defect of jurisdiction or other cause of a like nature is unable to entertain it, the expression 'cause of a like nature' will have to be read ejusdem generis with the expression 'defect of jurisdiction'. So construed the expression 'other cause of a like nature' must be so interpreted as to convey something analogous to the preceding words 'from defect of jurisdiction'. The defect of jurisdiction goes to the root of the matter as the Court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. The defect of jurisdiction goes to the root of the matter as the Court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore the expression 'other cause of a like nature' on which some light is shed by the Explanation (C) to Sec. 14 which provides "misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, 'defect of jurisdiction'. Prime facie it appears that must be some preliminary objection which if it succeeds, the Court would be incompetent to entertain the proceeding on merits, such defect could be said to be 'of the like nature' as defect of jurisdiction. Conversely if the party seeking benefit of the provision of Sec. 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the Court or some other defect of a like nature, it would not be entitled to the benefit of Sec. 14. Where therefore, the party failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Sec. 14 of the Limitation Act. See India Electric Works Ltd. v. James Mantosh (1971) 2 SCR 397 : ( AIR 1971 SC 2313 ). 15. The appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the application nor on the ground that there was any other defect of a like nature, but on merits inasmuch as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution. That was the decision on merits of the dispute and the appellants' application was rejected. Therefore, the High Court rightly declined to grant benefit of the provision of Sec. 14 of the Limitation Act to the appellants." 39. Similarly, in the matter of Deena (dead) through L.Rs. v. Bharat Singh (dead) through L.Rs. That was the decision on merits of the dispute and the appellants' application was rejected. Therefore, the High Court rightly declined to grant benefit of the provision of Sec. 14 of the Limitation Act to the appellants." 39. Similarly, in the matter of Deena (dead) through L.Rs. v. Bharat Singh (dead) through L.Rs. and others, AIR 2002 SC 2768 , their Lordships of the Supreme Court defining the expression "defect of jurisdiction" employed in Section 14 of the Limitation Act, 1963, held that "defect of jurisdiction" means Court must lack jurisdiction to entertain the suit and Section 14 will not be applicable if suit is decided after adjudication on its merits. Their Lordships further held that Section 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it. It has been observed in paragraph 16 of the report as under: - “16. The other expressions relevant to be construed in this regard are 'defect of jurisdiction' and 'or other cause of a like nature'. The expression "defect of jurisdiction" on a plain reading means the Court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the Court may be found are not enumerated in the section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under O. 23, R. 1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under S. 14 of the Limitation Act. The words "or other cause of a like nature" are to be construed ejusdem generis with the words 'defect of jurisdiction', that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application and to decide it on merits. Obviously S. 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it." 40. Obviously S. 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it." 40. Reverting to the facts of the present case in light of the law laid down by their Lordships of the Supreme Court in the afore-cited decisions, it is absolutely clear that the writ petition filed by the plaintiff claiming refund of commitment guarantee with interest was decided and dismissed by the writ court in its jurisdiction under Article 226 of the Constitution of India on merits by order dated 19-1-2012 and thereafter, writ appeal has also been dismissed on merits on 22-1-2015 and SLP was also dismissed as withdrawn giving liberty to the plaintiff to file civil suit in accordance with law, if he is entitled to file civil suit. In order to attract Section 14(1) of the Limitation Act, 1963, the essential requirement is the Court in which the prior civil proceeding was prosecuted, must have been unable to entertain it for the reasons specified, namely, defect of jurisdiction or other cause of a like nature, however, in the instant case, writ petition and writ appeal both have been dismissed on merits. In our considered opinion, as held by the Supreme Court in Gurdit Singh (supra), Zafar Khan (supra) and Deena (supra), Section 14(1) of the Limitation Act, 1963, could have no application in the present case and the trial Court is absolutely justified in holding that suit for recovery of the amount of commitment guarantee is barred by limitation which is neither perverse nor contrary to the record and we do not find any merit in the contention raised in this behalf. The second point is answered accordingly and as such, the decisions of the Supreme Court cited by Mr. Ankit Singhal, learned counsel for the appellant, in this regard i.e. Rameshwarlal (supra), Shakti Tubes Limited (supra) and West Coast Paper Mills Ltd.’s case (supra) are distinguishable on their own facts. Conclusion: - 41. The second point is answered accordingly and as such, the decisions of the Supreme Court cited by Mr. Ankit Singhal, learned counsel for the appellant, in this regard i.e. Rameshwarlal (supra), Shakti Tubes Limited (supra) and West Coast Paper Mills Ltd.’s case (supra) are distinguishable on their own facts. Conclusion: - 41. The finding recorded by the Commercial Court that suit of the plaintiff is barred by the principle of res judicata enshrined in Section 11 of the CPC and Section 14(1) of the Limitation Act, 1963 would have no application in the facts of the present case, are correct finding of fact based on the evidence available on record, they are neither perverse nor contrary to the record so as to invoke the jurisdiction under Section 96 of the CPC read with Section 13 of the Commercial Courts Act, 2015, as such, the Commercial Court is justified in dismissing the suit. In that view of the matter, the first appeal deserves to be and is accordingly dismissed leaving the parties to bear their own cost(s). 42. Decree be drawn-up accordingly.