P.C.C. CONSTRUCTION COMPANY AND ANR. Vs. ORIENTAL BANK OF COMMERCE AND ANR.
DEBTS RECOVERY APPELLATE TRIBUNAL
P.C.C. Construction Company And Anr.
Oriental Bank Of Commerce And Anr.
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P.K.Deb, J. (Chairperson) -
(1.) THIS appeal has been preferred by the above named defendant -appellants against the order dated 5th May. 2005 passed by the learned Presiding Officer, D.R.T., Jabalpur in Original Application No. 189 of 2000, whereby and whereunder the application filed by the appellants to cross -examine the respondent's witness Shri S.K. Shah as there were anomalies and alleged falsity in the affidavit with regard to the documents (vouchers filed) has been rejected.
(2.) ON previous occasion also, another such petition was filed by the appellants for cross -examination of Mr. S.K. Shah on the basis of his earlier affidavit, but the said application was rejected by the predecessor of the previous Presiding Officer vide order dated 15th January, 2002 holding that at that stage cross -examination was disallowed but at the time of final hearing, if it could be found that cross -examination was necessary, then the same would be considered in its proper perspective. Against such order dated 15th January, 2002 the appellants went to a writ petition before the Hon'ble High Court, Madhya Pradesh but the said writ petition was also dismissed. Then a date was fixed for final hearing of the Original Application No. 189/21000. At that stage, after hearing the argument of both the parties, learned Tribunal had passed an order on 3rd September, 2002 giving some directions to the respondent Bank regarding the authority of opening of account No. 1972 and transferring of some amount from that account No. 1972 to account No. 98. On the basis of such direction, the respondent Bank through the affidavits of Mr. S.K. Shah filed vouchers regarding opening of account No. 1972 and transferring of the accounts from account No. 1972 to account No. 98, regarding the amount of F.D.Rs., which were lying with the Bank opened by the appellants. According to the affidavit of Mr. S.K. Shah, the accounts were opened and amounts were transferred as per document D -10 executed by the appellant No. 2, but according to the documents filed vouchers regarding opening of account No. 1972 were done as per direction of Regional Manager or the superior authority and nowhere any mention is there of D -10. According to the appellants they had written in the year 1995 to adjust the F.D.R. amount with the loan account as the amounts were almost at par at that time, but the respondent Bank did not do so at that time and in the year 1996 without an express authority of the appellants account No. 1972 was opened and the F.D.R.'s amounts were transferred to account No. 98 and this anomaly regarding the documents filed from the side of the Bank and the affidavits filed by Mr. S.K. Shah were required to be clarified, which can only be done by cross -examination by Mr. Shah. There were other grounds also regarding two vouchers wherein on the backside there were signatures of Kanta Mishra but according to the appellants, those are fabricated and manufactured and on comparison they are found to be by different hands in the open eye. With these grounds, cross -examination was sought from the side of the appellant and objected to from the side of the respondent Bank and the learned Tribunal by impugned order has rejected such prayer on two grounds mainly on the ground of res judicata and on the observations made by the Apex Court in the case of Union of India v. Delhi High Court Bar Association . Mr. Satish Agarwal, Advocate for and on behalf of the appellants has challenged the impugned order on the ground that none of the reasons given by the learned Tribunal were sustainable to reject the application for cross -examination. On the other hand Mr. Manoj Srivastava, Advocate for and on behalf of the respondent Bank has submitted that sufficient grounds as contemplated under Rule 12(6) of the D.R.T. (Procedure) Rules are not attracted in the present case and as such rejection made by the learned Tribunal is proper and justified.
(3.) BEFORE going into the merit of the present case, the legal position must be clarified first. Rule 12(6) of the D.R.T. (Procedure) Rules has been amended giving wider scope on 21st January, 2003. Under the unamended provisions of Rule 12(6), the authority and jurisdiction was given only to the Tribunal to get him satisfied, if any anomaly arises for discharging proper justice to ask for cross -examination of witness of the either parties, but unamended provisions have been changed in the amended provisions of Rule 12(6) giving wider scope, when the liberties have been given to the parties to ask for cross -examination of the witness of the adverse party, who filed affidavits in support of their case and if satisfactory grounds are there justifying cross -examination, then the Tribunal shall allow cross -examination after recording reasons thereof. Practically amended provisions of Rule 12(6) is pari materia the same as Order 19 of the CPC, 1976. The observations made by the Apex Court in Delhi Bar Association case were in respect of the unamended provisions of Rule 12(6) of the D.R.T. (Procedure) Rules and such observation had come with exemplification of deciding of writ petition on the basis of affidavits. If I am permitted to say, the adjudication of a writ petition and adjudication of an original case is totally on different footing. Controversial law points are being decided in writ petition on admitted facts. But in the original cases factual aspects are required to be decided which are in controversy. So in my humble opinion adjudication of writ petition can in no case be similar to that of an Original Application under the RDDBFI Act before the Tribunal. If on factual aspect there is vast anomaly regarding documents and affidavits filed, then if sufficient grounds would be given by the adverse party for the purpose of cross -examination and if the Tribunal is satisfied that such anomaly cannot be decided properly without cross -examination, then cross -examination shall be allowed after recording sufficiency of reasons.;
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