Mathews J Nedumpara
14th Sept.26

This morning, I posted a video regarding yesterday’s proceedings in the Kerala High Court. In that video, I stated that the Honourable Chief Justice was entirely mistaken in observing that my client’s case—seeking protection under the MSME Notification dated May 29, 2015—was barred by constructive res judicata on the ground that such protection was not pleaded in the earlier proceedings.
I argued before the Chief Justice that constructive res judicata cannot apply unless there is res judicata. There can be no res judicata unless there is a termination of the lis. The doctrine of res judicata is founded on the principle that there shall be finality.
The objection raised by the Honourable Chief Justice is completely against reason and has no foundation in law.
The only plausible objection that could have been raised by the CJ was issue estoppel. However, that argument also fails because issue estoppel requires a prior judicial determination of the specific issue. In the earlier writ petition filed before the Kerala High Court through another lawyer, protection under the MSME Act was never sought because the client was unaware of it. Since the issue was neither raised nor determined, issue estoppel does not apply. Therefore, the ruling dismissing my client’s case on the ground of constructive res judicata is erroneous.
To err is human, and there is a duty to correct mistakes. My humble appeal to the Honourable Chief Justice of the Kerala High Court—and to the Honourable Judges of the Supreme Court—is to accept that no one is infallible and that it is graceful to acknowledge and correct an error. Denying MSMEs what Parliament has ordained, for wholly untenable reasons, would undermine the common man’s faith in the judiciary.

To repeat,There was no final termination of the lis because the issuance of a fresh notice putting my client’s property to auction gave rise to a new cause of action. This new cause of action entitles my client to institute fresh proceedings; therefore, fresh proceedings will lie. The only limitation is that if a specific issue was finally determined in the earlier proceedings, that issue cannot be re-agitated, as doing so would be barred by issue estoppel.

Finally, regarding the quiz I posted on social media, many participated, but only my associate, Ms. Hemali Kurne, provided the correct answer. Although I had discussed these issues with her earlier, she nonetheless deserves recognition. As promised, the prize goes to Ms. Hemali.