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11. Shri Dhruv Mehta, learned senior advocate appearing on behalf of the petitioner bank, has argued that no issue was struck as to res judicata as the same had not specifically been pleaded in the plaint of the suit of 2008. Indeed, the judgment dated 27.4.2013 came long after the pleading in the second suit, and no amendment of the plaint was sought so as to incorporate the plea of res judicata. No issue having been raised, it was impermissible, according to the learned senior advocate, to have gone into this plea at all. It was also argued that on the assumption that the said plea could be gone into, there were two statutory bars to relief, namely, Section 45 of the Trade Marks Act, 1999 and Sections 6 and 8 read with Section 46(4) of the Banking Regulation Act, 1949. The first statutory bar made it clear that unless the assignment deed was registered, it could not be received in evidence by any Court. Sections 6 and 8 of the Banking Regulation Act interdicted the bank from doing any business other than banking business and that, therefore, the assignment deed which enabled the bank to trade in goods and to earn royalty from an assignment of the trademark would be hit by the aforestated provisions and, therefore, would be void in law. For this purpose, he relied strongly upon the judgment of this Court in Mathura Prasad Bajoo Jaiswal & Ors v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, and various other judgments which have followed the law laid down by the aforesaid judgment. According to him, therefore, these two statutory prohibitions being pure questions of law, which are unrelated to facts which give rise to a right, cannot be res judicata between the parties. According to the learned senior advocate, both points had been raised before the Courts below with no success. Indeed, the very letter dated 27.1.2004 cancelling the assignment deed would itself show that the plea of the assignment deed being contrary to the Banking Regulation Act was the very reason for cancelling the aforesaid deed. He also referred to and relied upon the fact that the Bank Manager responsible for signing the said deed had been dismissed from service by an order dated 26.5.2005. Shri Mehta also strongly relied upon a judgment dated 29.1.2011, by the Sessions Court in Bangalore, by which the Chief Manager, one A. Sheshagiri Rao, who was made accused No.1 in a special criminal case filed by the CBI and respondent Nos. 1 and 2, who were made accused nos. 2 and 3 respectively, were each sentenced to 6 months, three years and two years respectively by the learned Sessions Judge, having been convicted under Sections 120B and 420 of the Indian Penal Code. Accused No.1 was also convicted of an offence under Section 13 of the Prevention of Corruption Act, 1988. According to the learned senior advocate, therefore, the doctrine of res judicata cannot be stretched to allow perpetuation of a fraud committed upon the bank.

24. In the present case, a belated review petition was filed after arguments were heard and judgment reserved by the appellate Court. Would this Court have to await the outcome of the said review petition before deciding whether the judgment dated 27.4.2013 is res judicata? Obviously not. It is clear that a review petition filed long after the judgment dated 27.4.2013, with a condonation application for a delay of over four years, could not possibly be held to be anything but an abuse of the process of the Court. This being so, we proceed to examine whether the judgment dated 27.4.2013 can be considered to be res judicata in the second proceeding in this case, namely the suit of 2008 filed by respondent No.1. We now come to the argument of Shri Dhruv Mehta based on the application of the principles contained in Mathura Prasad (supra).

25. In Mathura Prasad (supra), a question arose as to whether an erroneous judgment on the jurisdiction of the Small Causes Court in relation to a proceeding arising out of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 would be res judicata. The view expressed by the High Court was overruled by this Court in 1962, by which time the trial Judge and the High Court of Bombay rejected an application filed by the appellant for an order determining standard rent of the premises. This Court laid down:

28. An instructive Full Bench decision of the Punjab and Haryana High Court was cited before us by Shri Viswanathan, State of Punjab v. Nand Kishore, AIR 1974 Punjab & Haryana 303 at 308-309, which further explained the ratio of Mathura Prasad (supra). What troubled the Full Bench, after referring to Mathura Prasad (supra), was as to whether an issue of law decided inter parties could be held to be res judicata in a subsequent proceeding between the same parties. After referring to Mohanlal Goenka v. Benoy Krishna Mukherjee, (1953) SCR 377, which held that even an erroneous decision on a question of law operates as res judicata between parties, and various other Supreme Court judgments, the Full Bench of the Punjab and Haryana High Court, by a majority decision, went on to hold: