Decided on August 22,2007



M.C.Jain, - (1.) THE defendants 1 to 3 of T.A. 517/2002 pending before the DRT-III, Delhi are in appeal against the order dated 2.7.2004 passed by the Tribunal below dismissing their T.A. 575/2003 whereby a prayer had been made for cross-examining the witnesses of the respondent-Bank (applicant in T.A.).
(2.) Relevant facts should be taken note of: The T.A. in question has been filed by the respondent-Bank herein for the recovery of Rs. 5 crores and odd against the appellants. The respondent-Bank (applicant in T.A.) filed its evidence by way of affidavits of the following officers: (i) Mr. G.K. Madan, Senior Manager, (ii) Mr. R.S. Singhmar, Manager, (iii) Mr. P.K. Aggarwal, Chief Manager, (iv) Mr. D.K. Singla, Officer, (v) Mr. Narendra Dashora, Officer, (vi) Mr. Mukand Kulkarni, Chief Manager. Similarly, the appellants filed their written statement and also evidence by way of affidavit of the appellant No. 3. Then they moved an application (rejection of which has given rise to this appeal) seeking cross-examination of the witnesses who had filed affidavits on behalf of the respondent-Bank (applicant in O.A.). The application was grounded on the contention that they (appellants-defendants) had taken a plea, of equitable set-off against the Bank, the latter having committed breach of contract as expressed through its letter dated 26.5.1992. They had issued various Bank guarantees to their beneficiaries legitimately expecting to successfully execute their contracts with the financial facilities promised to be given by the Bank. Since the Bank refused to give the promised financial facilities, they (appellants) suffered huge loss as they could not complete their projects and in the absence of projects being completed, default occurred and encashment of various Bank guarantees took place. The Bank guarantees were invoked and encashed by their beneficiaries as a direct consequence/fallout of Bank's violation in giving the promised financial facilities. To establish these facts, the cross-examination of the Bank's witnesses was said to be necessary. The respondent-Bank opposed the application of the appellants (defendants) contending that the claim of the Bank was based on the documents which could speak for themselves. In the eventuality of its not being able to prove its case it was to fall and for that matter, the cross-examination of its witnesses was not at all necessary which could be allowed only in rarest of rare cases.
(3.) SINCE the Tribunal below dismissed the application of the appellants (defendants) for cross-examination of the witnesses of the Bank, they lodged this appeal.;

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