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SCA/10665/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10665 of 2008
To
SPECIAL
CIVIL APPLICATION No. 10670 of 2008
=========================================
VEENA
SALES CORPORATION & 5 - Petitioner(s)
Versus
BANK
OF BARODA - Respondent(s)
=========================================
Appearance
:
MR ASPI M
KAPADIA for Petitioner(s) : 1 - 2, 2.2.2,2.2.3 -
6.
None for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 26/08/2008
ORAL
ORDER
1. The petitioners are
before this Court in furtherance of their sole purpose that the
Original Application No.65 of 2002 filed before the DRT, Ahmedabad is
not proceeded under one excuse or the other. After the notices of
the Original Applications were served to the defendants ? the
present petitioners, an application R/8 was filed on 26.12.2002. The
same was allowed on the same day. The defendants ? the present
petitioners then filed another application being R/10, wherein two
orders were passed, one on 30.04.2003, which reads as under:-
?SShri Siddhartha
Samal, Advocate for the Applicant Bank.
Shri Jamin Patel,
Advocate for Respondents.
Exh.R/10 is an
application filed by Respondent Nos.3, 4 and 9. Documents which have
been specified in prayer be filed by Applicant Bank. To be
listed for further proceedings and hearing of Receiver’s application
on 16.6.2003.??
Thereafter, on
16.06.2003, again an order was passed, which reads as under:-
?SShri Siddhartha
Samal, Advocate for the Applicant Bank.
A set of documents be
supplied to Respondents who may file their reply within four weeks
with an advance copy to Applicant Bank. To be listed before
Registrar on 09.07.2003.??
It is important to
note that after this order was obtained, the petitioners did not file
their reply ? written statement to the Original Application, which
is reflected in the order dated 30.04.2008 passed below Exh.R/28.
There is no difficulty in inferring that R/28, which was filed on
15.10.2003, was filed with a view to see that the proceedings do not
proceed. R/28 was allowed to remain dormant for almost five years.
The same came up for consideration before the Presiding Officer,
DRT-III, Ahmedabad, who rejected the same by order dated 30.04.2003.
The relevant paragraph of the order reads as under:-
?SAs it appears from
the order sheet that Defendants have neither filed the Written
Statement nor submitted any Affidavit-in-support of their defence, if
any. It is pertinent to note that Defendants were specifically
directed to file their Written Statement within the stipulated period
of there weeks by an order dated 27.01.2003. Thereafter,
again as per order dated 21.04.2003 Defendants were directed
to file the Written Statement within two weeks. Inspite of this
order, Defendants have not filed any Written Statement. On the other
hand Applicant has filed the Suit Claim Affidavit on 29.03.2004.
Though directions were
issued by the DRT to file written statement, not once but twice, the
defendants did not file the same. This substantiates the assumption
that the defendants wanted to see that the matter does not proceed.
The next paragraph also is relevant in the opinion of this Court,
which reads as under:-
?SApplicant Bank has
categorically replied to the Application of Defendants. It is an
admitted fact that one set of documents was provided to the
Defendants. Moreover, the Defendants had filed an application for
production of documents earlier also and that is decided. Under
such circumstances, Defendants have sought adjournment for filing
Written Statement and the time was granted for filing the Written
Statement. It is contended on behalf of the Applicant Bank that
Defendants have acknowledged the debt from time to time and therefore
they are estopped from raising any dispute with regard to the
Statement of Account more specifically after acknowledging the debt.
The Bank has provided Statement of Account beginning from 01.01.1996
and the acknowledgement of debt is executed subsequent to that.
Therefore, they can not insist for statement of Account prior to the
acknowledgement of the debt. This argument of the Applicant is
convincing.??
2. It is a trite law
that when a party does not produce required document/s in support of
its claim will have to face the adverse inferences, which can be
drawn by the adjudicating authority. Once there was an order below
R/10 by the DRT asking the applicant Bank to produce the document,
the job of the defendants ? present petitioners was over and
defendants ought to have filed their written statement in time and
should have proceeded with the matter. Instead, to see that the
matter does not proceed, the defendants filed yet another application
being R/28 on 15.10.2003. Thereafter, they did not do anything and
allowed the same to remain dormant for five years and an order is
passed only in the year 2008.
3. The operative part
of the order dated 30.04.2008 is self explanatory and warrants no
interference at the hands of this Court. The relevant paragraph
reads as under:-
?SThe prayer of the
Defendants for dismissing the Original Application can not be
accepted. Because if ultimately the Bank fails in establishing
its claim, for non production of any document, then the O.A may be
dismissed. The relevant provisions are there for drawing inferences
for non production of the material evidence on record.
Therefore, the Application at Exh.R/28 to be rejected.??
4. The defendants ?
present petitioners were not satisfied and to push forward their
ill-design of stalling the proceedings, they filed appeals before the
DRAT being Misc. Appeal Nos.175, 176, 177, 178, 179 and 180 of 2008
challenging this order. The learned advocate for the petitioners
apprised the Court that the petitioners had also filed an application
under RTI Act, under which an order was passed but not being
satisfied with the order, they had also filed an appeal against the
same. This shows that no effort is spared by the petitioners to see
that the proceedings remain stalled and they do not proceed further.
5. Before the
appellate authority, the respondent Bank submitted that it has given
inspection or copies of the documents available with it and it does
not have the record available in respect of other documents as listed
in the annexure ‘A’ to the reply affidavit dated 17.07.2008.
Before the appellate
authority, the learned advocate representing the present petitioners
agreed to file written statement, which is recorded by the appellate
authority as under:-
?SIn view of the
aforesaid position the counsel for the appellants states that
the appellants shall file their written statements on the basis of
the copies of the documents which are furnished to them within a
period of six weeks from today.??
After having agreed to
file the written statement, the order is challenged before this Court
by way of these petitions. That discloses the mind set of the
petitioners.
6. The Court finds no
substance in the present petitions. The conduct of the present
petitioners is deprecated and the petitions are dismissed with cost
of Rs.15,000/- (Rupees Fifteen Thousand Only).
(RAVI
R.TRIPATHI, J.)
*Shitole
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