SHIVA TECHNOMEC P LTD Vs. DENA BANK
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) THIS appeal has been preferred against the order dated 17th September, 2003 passed by the learned Presiding Officer, DRT, Jabalpur in Original Application No. 75/02, whereby and whereunder the application filed by the appellants who were defendant Nos. 1 to 7 for cross-examination of the applicant-Bank's witnesses has been rejected.
(2.) The original application was filed by the respondent-Dena Bank on 11th January, 2002 and along with the application, affidavits of the witnesses for the Bank sworn on 11th January, 2002 have been filed after service of notice on the defendant-appellants, they filed their written statement taking various objections regarding the plaint case both on facts and on points of law. Some of the vital objections raised have been sought to be clarified by the respondent Dena Bank by filing rejoinder on 15th September, 2002 and such rejoinder was filed with the support of an affidavit sworn by one Mr. Niranjan Tarai who happened to be the Senior Manager of the concerned branch of the respondent-Bank at Khursopar, Bhilai. The application for cross-examination of the Bank's witnesses has been filed raising various points wherein it is stated that, if those points are not being clarified by cross-examination of the Bank's witnesses who filed the affidavit, then the real dispute cannot be adjudicated. Such application of the defendant-appellants has been controverted by the Bank stating that whatever objections raised in the written statement have been clarified by way of rejoinder as mentioned above and as such no cross-examination is required and such application has been filed only as a delaying tactics.
After hearing the learned Counsel for the parties, the learned Presiding Officer, DRT had passed the impugned order rejecting the prayer of cross-examination holding points by points that the rejoinder filed had clarified the objections raised by the appellants in the written statement and affidavits filed could be sufficient for the purpose of coming to a just decision in the case. Learned Presiding Officer has relied on the principle enunciated by the Apex Court in the case of Union of India v. Delhi High Court Bar Association, II (2002) BC 194 (SC) : 2002 AIR S.C.W. 1347 (SC). It does not appear that the observation made by the Apex Court regarding cross-examination or oral examination of witnesses arises only in rare cases, when after the same judgment Rule 12 has got drastic change in DRT (Procedure) Rules, 1993. Rule 12(6) has been substituted by G.S.R. 44(E) dated 21st January, 2003 effective from 21 st January, 2003 which runs as follows:
Rule 12(6)-The Tribunal may at any time for sufficient reasons order that any particular fact or facts shall be proved by affidavit or that the affidavit of any witness shall be read at the hearing, on such conditions as the Tribunal thinks reasonable:
Provided that after filing of the affidavits by the respective parties where it appears to the Tribunal that either the applicant or the defendant desires the production of a witness for cross-examination and that such witness can be produced and it is necessary to do so, the Tribunal shall for sufficient reasons to be recorded, order the witness to be present for cross-examination, and in the event of the witness not appearing for cross-examination then the affidavit shall not be taken into evidence and further that no oral evidence other than that given in this proviso will be permitted:
Provided that where it appears to the Tribunal that either the applicant or the defendant desires the production of a witness for cross-examination, and that such witness can be produced an order shall not be made authorising the evidence of such witness to be given by affidavit.
(3.) LAST proviso to such rule makes it clear that if cross-examination is required by either of the parties and the witnesses can be produced, then the evidence should not be relied on the basis of affidavit alone. But definitely for that purpose, there must be a satisfaction on the part of the Presiding Officer. In the present case, affidavits by witnesses of the Bank have been filed before the written statement was filed and naturally those affidavits did not carry the clarification regarding the points of law and facts as raised by the defendants in the written statement. After the written statement no fresh affidavit has been filed except a rejoinder being made to the plaint by the Bank official in the name and style of Mr. Niranjan Tarai. The vital question raised regarding the denial of conversion of Shiva Technomec (P) Ltd. from Shiva Enterprises. All documents have been relied by the respondent Bank as executed in favour of the Bank by Shiva Enterprises which was a partnership firm but the original application has been filed only against Shiva Technomec (P) Ltd., with its Director. It might be that some of the partners of Shiva Enterprises are also Directors of Shiva Technomec (P) Ltd. but that alone does not make the conversion being proved and taken the fact by the Bank. If the erstwhile loan granted to Shiva Enterprises has been taken over the liability by Shiva Technomec (P) Ltd., there must be some documents or undertaking lying with the Bank. Only the Bank statement of conversion may not be sufficient for a just adjudication Similarly regarding anomalies in the statement of accounts as raised by the defendants require definite clarifications for proper adjudication. The admission of existence of FDRs does not alone take away the controversy as raised from the side of appellants. Their case i s that some of those FDRs have been matured and if those are kept as security, then those amounts on maturity might be adjusted on the date of maturity towards the debt dues and in that case unless more clarifications are coming, then it might not be possible to come to a just decision regarding correct dues on the date of filing of the original application. Some other points as raised by the appellants might not be of much reliance as held in the impugned order but the points as stated above are definitely required to be clarified by way of cross-examination. Denial of some facts or admission of some documents vaguely made may not be sufficient for the just adjudication. Mr. K.L. Grover, Senior Advocate appearing for the respondent Bank has very much relied on the observation of the Apex Court in the Delhi High Court Bar Association (supra) and his submission is that such case was submitted from the side of the defendant appellants before the Tribunal but I have already mentioned that a change has been made in Rule 12(6) of the DRT (Procedure) Rules, 1993 and the matter should be considered in the light of such provisions which came later on after the decision of the Apex Court. The submissions of Mr. Grover that if some anomaly remains and the Bank fails to prove the same, then the application of the Bank shall be dismissed and for that purpose cross-examination may not be necessary of the Bank officials, I cannot agree with such submission of the learned Senior Counsel. Money involved is a public money and it becomes the duty cast by the statute on the Tribunal to come to a just decision regarding claims of the Bank and in that way all objections raised are required to be adjudicated in their proper perspective. It is true that in all the cases simpliciter cross-examination sought for may not be allowed only relying on the provisions of Section 12(6) of the procedural rules, but the Tribunal must consider the particular case in their proper perspective for the purpose of allowance/rejection of the prayer of cross-examination. Another point has also been raised in the case regarding non-impleading of three guarantors whose documents were there with the Bank and one of the guarantors' documents have also been returned to the guarantor concerned as pleaded without the knowledge of the borrower. The plea of the Bank is that when new guarantors have come up, then the previous guarantors have automatically been discharged. But the guarantee documents reveal otherwise and according to the appellants, unless the previous guarantors are being discharged expressly, there is no question of automatic discharge. This also requires clarification as to whether express discharge was there or not.;
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