Decided on January 15,2004



Pratibha Upasani, - (1.) THIS Misc. Appeal is filed by the appellants/original defendants being aggrieved by the Order dated 30.5.2003 passed by the learned Presiding Officer of the Debts Recovery Tribunal-III, Mumbai on Exhibit No. 135 in Original Application No. 597/2000. By the impugned order, the learned Presiding Officer rejected the application made by the appellants for appointment of Commissioner to work out calculations of both the loan accounts in dispute i.e. cash credit (O.C.C.) account from 21.10.1976 and cash credit (key loan) account from 12.6.1973, after taking into account allegedly wrong entries in the credit facilities. Prayer of the application is that it would be just necessary and proper to appoint Court Commissioner, who is well acquainted with the subject of accountancy.
(2.) The whole controversy had arisen because of the allegation of the appellants that calculation of the interest amount shown as due from the defendants is not properly done by the applicant Bank and, therefore, the prayer for appointment of Commissioner. Case of the applicant Bank is that they have charged the interest rightly and, therefore, it is not necessary to appoint Commissioner for recalculating the amount. According to them the defendants are trying to protract the proceedings by filing application after applications and, therefore, their application be rejected. I have heard Mr. Vishwanath for the appellants and Mr. Satish Shetye for the respondents. The whole controversy is indeed with respect to the calculation of interest; according to the defendants, they are liable to pay interest at the rate of 5 1/2 over the official rate of Reserve Bank of India. According to them, the official rate of interest has not been correctly taken into account and because of that, higher rate is being charged on the loan borrowed by them. In fact the defendants have submitted statement of account which according to them is correct. The Bank also has submitted its statement of account which according to them is correct. The defendants also is at liberty to point out any mistake at the time of final arguments, if any entry in the statement of account is incorrect. Now it is for the learned Presiding Officer to adjudicate on the above allegation of excessive interest and for that purpose he will have to look into the matter and pass Order on merits. In fact he has been entrusted with this job of looking into and comparing the statement of accounts and arrive on at the decision. If there are wrong calculations by the applicant Bank, the Tribunal would certainly disallow it. The defendants can point out the alleged wrong entries which would be certainly considered by the learned Presiding Officer, who would pass Order in accordance with law. Appointment of Commissioner for this purpose is not necessary. The prayer made by the appellants in this appeal that Commissioner be appointed to check the correctness of the claim lodged by the applicant Bank vis-a-vis the recomputation submitted by the appellant and to arrive at a figure for the correct/legitimate dues of the appellants and the respondent Bank is really improper. It means that the appellants want the Commissioner to come up with dues of the appellants, which is actually the job of the learned Presiding Officer. Such prayer cannot be granted. The learned Presiding Officer therefore rightly rejected the application. The appeal is without any substance and has to be rejected. Hence, following Order is passed. ORDER Misc. Appeal No. 237/2003 is dismissed. ;

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