Party Cannot Revive Contention Omitted Earlier Through Fresh Plea In Same Dispute: Gujarat High Court

The Gujarat High Court on 29 June held that a party cannot revive an issue through a fresh application after failing to raise an available contention at the appropriate stage, holding that such an attempt is barred by the principles of constructive res judicata, waiver and finality of litigation.

Justice Niral R. Mehta dismissed a petition filed by JWIL Infra Ltd. (formerly JITF Water Infrastructure Ltd.) under Article 227 of the Constitution and upheld the arbitral tribunal's order refusing to recall a witness for cross examination in its dispute with Aquafil Wintech JV. He observed:

“The doctrine of constructive res judicata is founded upon the principle that a party ought to raise, at the appropriate stage, every contention which it could and should have raised. If a litigant deliberately omits to raise an available contention and allows the adjudication to attain finality, such contention cannot ordinarily be permitted to be resurrected in subsequent proceedings arising out of the same cause.”

The dispute arose from a contract awarded by the Guwahati Metropolitan Development Authority to JWIL on 13 March 2012 for the Guwahati Water Supply Project worth about Rs. 80.89 crore. In 2014, JWIL floated a back to back tender following which Aquafil Polymers Pvt. Ltd. and Wintech Engineering Pvt. Ltd. formed Aquafil Wintech JV and executed a subcontract with JWIL on 8 August 2014.

After JWIL terminated parts of the subcontract in February and March 2017 and later terminated the entire subcontract on 8 January 2018, Aquafil Wintech challenged the termination and invoked remedies under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act). The Micro and Small Enterprises Facilitation Council referred the dispute to arbitration on 30 June 2018.

During the arbitral proceedings, the tribunal closed JWIL's right to file its defence after it failed to do so within the prescribed time. On 30 May 2020, the claimant's witness, Hitesh Babulal Shah, was examined and discharged without cross examination as JWIL remained absent despite notice.

JWIL later sought reopening of the proceedings and permission to cross examine the witness. The tribunal rejected the application on 29 November 2020 and the Gujarat High Court upheld that order on 12 March 2021.

Nearly five years later, JWIL again sought recall of the same witness. The arbitral tribunal rejected the application on 13 December 2025 and imposed costs of Rs. 5 lakh, following which JWIL approached the High Court under Article 227.

JWIL argued that its earlier application contained separate prayers for reopening its defence and recalling the witness, but only the former had been considered. It contended that the recall request had never been decided and that denial of cross examination violated the principles of natural justice and equal treatment under the Arbitration and Conciliation Act, 1996.

Aquafil Wintech opposed the petition, contending that the application was an attempt to delay the arbitration and that any grievance could be raised only while challenging the final arbitral award.

Rejecting the challenge, the High Court held that JWIL was aware in 2021 that the tribunal had not separately dealt with one of its prayers, yet chose not to raise that contention while challenging the earlier order. Having allowed the issue to attain finality, it could not seek to reopen it through a fresh application years later.

It further held that permitting such a course would encourage piecemeal litigation and defeat the principles of certainty and finality. It also observed that recalling a witness is a discretionary relief, not a matter of right, and cannot be invoked to fill gaps in a party's case or prolong arbitral proceedings.

Accordingly, the High Court dismissed the petition finding no patent illegality or perversity in the tribunal's order. It clarified that all rights and contentions on the merits of the arbitration remain open to be raised, if otherwise permissible, in proceedings challenging the final arbitral award.

Appearances: Appearances for JWIL Infra Ltd.: Senior Advocate Mihir Thakore with Advocates Gaurav K. Lakhwani and Nilesh P. Udernani.

Appearances for Aquafil-Wintech JV: Senior Advocate Mitul Shelat with Advocate Rutul P. Desai.