IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.11.2009
CORAM:
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR.JUSICE M.DURAISWAMY
C.R.P(PD).No.3255 of 2009
& M.P.No.1 of 2009
1. M/s.Asbil Engineering & Construction
(India) Pvt. Ltd.,
Archana Apartments, III Floor,
Dr.Sarangapani Street,
T.Nagar, Chennai-600 017.
2. Dr.M.S.Kathirvelu .. Petitioners
Vs.
The South Indian Bank Limited,
George Town Branch,
Catholic Centre,
No.64, Armenian Street, Chennai-600 001. .. Respondent
Civil Revision Petition against the order dated 26.8.2009 in I.A.No.227 of 2009 in O.A.No.205 of 2003 on the file of the Debts Recovery Tribunal-II, Chennai.
For petitioners : Mr.Vijaya Narayanan, Senior Counsel
for M/s.U.M.Ravichandran
For respondent: Mr.V.Kuberan for M/s.Rank Associates
ORDER
(The Order of the Court was made by S.J.Mukhopadhaya,J)
The Civil Revision Petition has been preferred by the borrower and the guarantor (the defendants 1 and 2 in Original Application No.205 of 2003), against the order dated 26.8.2009 passed by the Debts Recovery Tribunal-II, Chennai in I.A.No.227 of 2009 in O.A.No.205 of 2003.
2. By the said I.A., the petitioners/borrower and guarantor prayed the DRT to permit them to cross-examine the deponent of the proof affidavit filed on behalf of the applicant-Bank, which was rejected by the impugned detailed reasoned order dated 26.8.2009.
3. Learned Senior Counsel appearing on behalf of the petitioners submitted that from the affidavit filed before the Tribunal, it could be seen and established the manner in which the loan in question was sanctioned by the respondent-applicant-Bank and the collusion between the applicant-Bank and the seventh defendant and therefore, the cross-examination of the deponent of the proof affidavit is necessary. While similar argument was made before the Tribunal, it was also submitted that the borrower and the guarantor want to get certain information from the deponent of the proof affidavit.
4. Learned Senior Counsel appearing for the petitioners, while relying on Section 22(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, submitted that the Tribunal is vested with same power as vested in the Civil Court under the Civil Procedure Code while trying a suit in respect of matters as shown therein, including summoning and enforcing, the attendance of any person and examination him on oath and for receiving evidence on affidavits. It is contended that when once affidavit is received in proof of the claim (proof affidavit) and is marked as evidence, it is always necessary to cross-examine the deponent of such affidavit.
5. The aforesaid submissions were opposed by the learned counsel for the respondent-Bank, who also placed reliance on the relevant background of the case and suggested that the petitioners/borrower and guarantor are trying to delay the proceedings.
6. We have heard the learned counsel appearing for the parties and perused the records.
7. Admittedly, the Original Application was filed in the year 2003. Despite receipt of summons initially, the petitioners (defendants 1 and 2) remained ex-parte without taking part in the proceedings, as they were set ex-parte. After about 1-1/2 years, the petitioners filed an application to set aside the ex-parte order, which was allowed. In the proceedings, long back, the Bank filed proof affidavit along with 33 documents as evidence, which were marked as Exs.A-1 to A-33. The Bank filed additional proof affidavit, which was also marked as Ex.A-34. The petitioners were given sufficient opportunity to file reply statement on 11.8.2005, followed by filing of the counter proof affidavit filed by the petitioners (defendants 1 and 2) on 22.4.2008 along with 15 documents as their evidence. Thus, sufficient opportunity was given to the petitioners/defendants 1 and 2 to produce their documentary evidence. Thereafter, the petitioners sat tight with the matter for more than a year and on 6.5.2009 wanted to cross-examine the deponent of the proof affidavit, which was filed much earlier, i.e. in April 2004, followed by the additional proof affidavit filed on 30.9.2006. This Court specifically asked the learned Senior Counsel appearing for the petitioners to state as to why the petitioners wanted to cross-examine the deponent of the proof affidavit, which was filed as back as in the year 2004. No specific reply was given on behalf of the petitioners, except to state that the petitioners-defendants 1 and 2 wanted to prove the collusion between the Bank and the seventh defendant. However, such submission cannot be accepted in the absence of prima-facie case made out, warranting cross-examination of the deponent of the proof affidavit, that too, after five years of filing of such proof affidavit.
8. In fact, similar matter fell for consideration before the Supreme Court in the case of “Union of India Vs. Delhi High Court Bar Assocn.” reported in AIR 2002 SC 1479 and in the said case, the Supreme Court observed as follows:
“23. In other words, the Tribunal has the power to require any particular fact to be proved by affidavit, or it may order the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to R.12(6) would certainly apply only where the Tribunal chooses to issue a direction, on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or defendant for the production of a witness for cross-examination. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to the Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present for cross-examination and in the event of his not appearing, then the affidavit shall not be taken into evidence. When the High Courts and the Supreme Court in exercise of their jurisdiction under Art.226 and Art.32 can decide questions of fact as well as law merely on the basis of documents and affidavits filed before it ordinarily, there should be no reason as to why a Tribunal, likewise, should not be able to decide the case merely on the basis of documents and affidavits before it. It is common knowledge that hardly any transaction with the Bank would be oral and without proper documentation, whether in the form of letters or formal agreements. In such an event the bonafide need for the oral examination of a witness should rarely arise. There has to be a very good reason to hold that affidavits, in such a case, would not be sufficient.”
9. In the present case, as we find that the petitioners have failed to make out a prima-facie case to call for the deponent of the proof affidavit filed by the Bank for cross-examination and the matter appears to have been raised after long delay, after more than five years of filing of such proof affidavit, we are not inclined to grant the relief as sought for in this Civil Revision Petition. No case is made out to interfere with the impugned order passed by the DRT-II, Chennai.
10. There being no merits, the Civil Revision Petition is dismissed. No costs. The Miscellaneous Petition is closed.
cs
To
Debts Recovery Tribunal-II,
Chennai