P.K. Deb, J. -
(1.) BOTH the appeals are connected and arise out of the same order passed by the learned Presiding Officer of the D.R.T., Jabalpur in T.A. No. 100 of 2000. They have been heard together and are being disposed of by the single judgment.
(2.) THE brief facts of the case are that on 22nd April, 1995 the respondent No. 1 Bank of India filed suit for recovery of Rs. 29, 13, 488.09 against the present appellants and the respondent Nos. 2, 3 and 4. Practically respondent No. 2 Bhopal Food (P) Ltd. was the borrower while respondent Nos. 3 and 4 were Directors of the said company. The appellant Nos. 1 and 2 were arrayed as defendant Nos. 4 and 5 being the Directors and also guarantors. That the suit was dismissed for default on not taking proper steps by the Bank before the District Judge and such dismissal was recorded even before issuance of summons to the defendants. Long after the dismissal order was recorded only in the Year 1999 a restoration petition was filed by the Bank which was eventually allowed and by that time Tribunal being set up, the case was transferred to the D.R.T., Jabalpur wherein it was registered as T.A. No. 100 of 2000. Notice were issued to the defendants. Written statement was filed by the appellants who were defendant Nos. 4 and 5 separately and they have denied of executing any security documents after 21st September, 1987. It may be mentioned here that such security documents were furnished by the appellants at the time of taking loan by the borrowers at the very first instance. It appears that the loan amount was extended and then further security documents were also alleged to be executed by the appellants in favour of the Bank on 14th August, 1989, 14th February, 1990, 2nd May, 1992 and 6th January, 1993. According to the written statement of the appellants (defendant Nos. 4 and 5) there was complete denial of execution of any security documents on the subsequent dates after 21st September, 1987. They have also categorically admitted their signatures on the security documents dated 21st September, 1987. According to the appellants when they compared the signatures it could be found marked difference and dissimilarity in the signature of the appellants on the subsequent security documents. Then three petitions were filed by the appellants jointly for calling the original security documents in the Court and also for getting the security documents alleged to be subsequently executed by the appellants examined by handwriting expert and also there was further petition for calling the Bank officials for cross -examination who have submitted affidavits in support of the fact that in their presence the appellants had executed the security documents on 14th August, 1989, 14th February, 1990, 2nd May, 1992 and 6th January, 1993. Objections have been raised on those petitions from the side of the Bank to the effect that the liability remains with the Bank to prove their case and that there is no reason to allow the Bank officials namely Shri A.D. Kulkarni, I.J. Wader and V, B. Dekate be cross -examined as they have sworn to the effect that in their presence the subsequent security documents were executed by the appellants (defendant Nos. 4 and 5). It was also contended that no dissimilarity remains on the signatures of the appellants in the security documents and hence there is no scope for sending the documents for examination to a handwriting expert. It is the contention of the Bank that such petitions have been filed only as delaying tactics. One of the three petitions regarding calling for the documents have been allowed by the Tribunal but other two petitions regarding cross -examination of the witnesses and examination of the documents by handwriting expert have been rejected by the Presiding Officer, D.R.T., Jabalpur by the impugned order dated 20th January, 2004. At the relevant time no regular Appellate Tribunal was functioning at Allahabad and the Hon'ble Chairperson of the Delhi Tribunal was in charge and as the D.R.T., Jabalpur was proceeding for disposal of the case, the appellants moved before the Hon'ble High Court of Madhya Pradesh in W.P, No. 144 of 2004 for redressal of the grievances as per order of the Tribunal impugned in these appeals. The writ petition was disposed of by the Hon'ble High Court of Madhya Pradesh vide order dated 9th February, 2004 asking the appellant to file appeal before the Appellate Tribunal here at Allahabad with sonic imposed conditions. Then the present appeals as mentioned above have been filed before this Tribunal and the Hon'ble Chairperson (in charge) had admitted the appeals and stayed further proceedings in the Original Application. Appeal No. R -384/04 have been filed against the rejection of the petition of the appellants for examination of the documents by handwriting expert while R -401/04 has been filed for rejection of the petition filed by the appellants for cross -examination of the three Bank officials.
(3.) ON perusal of the impugned order it is found that the prayer for cross -examination of the Bank officials have been rejected on the technical ground that affidavits in support of the petition for cross -examination have been filed only by appellant No. 1 (defendant No. 4 Satish Kumar Agarwal) and not by appellant No. 2 (defendant No. 5 Dr. Lakhan Agarwal). It is true that the applications for cross -examination and for examination by handwriting expert were jointly filed by both the appellants and affidavit at the first instance was filed by appellant No. 1 Satish Kumar Agarwal alone but subsequently affidavit was also filed by Dr. Lakhan Agarwal and the same have been accepted by the learned Presiding Officer of the Tribunal vide his order dated 16th September, 2003. So there is error of records committed by the learned Presiding Officer while holding that affidavits have not been filed by both the appellants. There is provision for disposal of the recovery applications on mere affidavits filed by the Bank as per the Debts Recovery Tribunal (Procedure) Rules, 1993 as contained in Rule 12(6), but there is also provision for cross -examination of witnesses under the same rules. The Hon'ble Supreme Court while considering the validity of the RDDBFI Act, 1993, in Union of India v. Delhi High Court Bar Association II , held that in rare cases where the Tribunal requires the fact to be ascertained may ask for witnesses who had sworn affidavit to appear before the Tribunal for the purpose of cross -examination. The same view has been expressed by the Full Bench of Madhya Pradesh High Court reported in Kowa Spinning Ltd. v. Debts Recovery Tribunal I (2004) BC 106 (FB). Here there is no total denial of the appellants who also happened to be the Directors of the borrower company regarding executing security bonds at the time of loan agreement but denial is there when the loan amount had been extended and further security documents have been alleged to be executed by the appellants. In such circumstances when by affidavit the appellants have stated the fact of total denial, then I do not find that there is any cogent reason to deny the prayer for cross -examination of three Bank officials who had sworn affidavit testifying the fact that in their presence the appellants had executed the subsequent security documents. It is submitted by the learned Counsel for the Bank that until and unless defendants in the Original Application, during the course of adjudication, filed affidavit as evidence regarding the denial of the facts, there is no scope for order for cross -examination. I do not find much force in such submissions. A fact has been ascertained by the Bank and such fact has been denied not only in the written statement/reply to the Original Application but also filed separate affidavits with specific petition denying the fact of execution of subsequent security documents. In such circumstances, for the purpose of denial what more evidence can be given from the side of the appellant. Moreover, it appears from the records that on affidavits being filed, the learned Presiding Officer of the D.R.T., Jabalpur had fixed the date for final arguments of the case. Until and unless an opportunity of establishing or disestablishing the facts are being given, then the whole process of adjudication, proper justice, even to the extent of natural justice would be denied. The learned Tribunal on error of records held that proper affidavits have not been filed by the appellants and as such rejected the petitions. On the discussions made above, I find that the learned Tribunal has committed error and as such that portion of the order rejecting the prayer of cross -examination of three Bank officials is hereby set aside.;