ASSETS FINANCE PVT LTD Vs. LIC HOUSING FINANCE LTD
LAWS(DR)-2006-11-2
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on November 21,2006

Appellant
VERSUS
Respondents

JUDGEMENT

V.S.Ravi, - (1.) THIS petition is filed to recall the Commission warrant dated 3.11.2006 and to modify the same as mentioned in the petition.
(2.) Brief averments made in petition are as follows : On 6.11.2005 this Tribunal was pleased to appoint an Advocate Commissioner to ascertain the true facts of the case. This Tribunal was pleased to appoint an Advocate Commissioner with instructions to note down the physical features, items, etc. The respondents have contradicted their own statements with regard to inventory list of the schedule property. Even if the Advocate Commissioner goes to the said premises, the Advocate Commissioner will find a vacant room only. There won't be anything to note down and to corroborate the petitioners allegations. Hence, it will be in the interest of justice that the Advocate Commissioner is directed to conduct an inquiry and to take statements of neighbours of the schedule property. So the petitioner has requested to recall the Advocate Commissioner and to modify the Commission Warrant dated 3.1 1.2006 by directing the Advocate Commissioner to conduct an inquiry and to take statements from the neighbours of the schedule property with regard to the fact as to whether the petitioner was in possession and occupation of the schedule premises. Brief averments in the Counter Affidavit are as follows : The Advocate Commissioner has been appointed by this Tribunal by an order dated 3.11.2006 for clarification of certain issues raised in the above appeal. As such neither of the parties have any right to seek for any modification in the warrant issued to the Advocate Commissioner. The Apex Court and various High Courts have repeatedly held that panics should not seek to procure evidence by appointing Advocate Commissioner. The petitioner cannot seek for gathering evidence through the Advocate Commissioner. The petition is nothing but an attempt to delay and protract the matter future. This Tribunal has appointed Advocate Commissioner to ascertain whether there is any sembalanccof the petitioner having their back office in the subject premises as averred by them in the appeal. It is wrong to state that the Advocate Commissioner has been appointed to ascertain the true facts of the case with regard to possession and occupation. The petitioner had contended in the appeal that they are running a back office in the subject premises and this respondent has suddenly scaled the same. If that be the case, the office furniture, equipments, stationary, etc. should be available in the premises. Now that the petitioner has admitted that there would be only vacant room. It would clearly show that the petitioner is blowing hot and cold with no case. The petitioner is bound to prove his case on his own evidence and cannot seek for procuring evidence in support of his case. The Advocate Commissioner is appointed to ascertain the facts as deemed necessary, more in the nature of ministerial acts and the petitioner cannot seek for modification as prayed for in the petition. In such circumstances, the respondent has requested to dismiss the petition.
(3.) FROM the above mentioned averments of both sides, the following point arises for consideration/determination in the petition: Whether the petitioner is entitled to get an order to direct the Advocate Commissionerto conduct an inquiry and take statements from the neighbours of the schedule mentioned property with regard to the fact as to whether the petitioner was in possession and occupation of the said premises, for the reasons stated in the petition?;


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