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TMI Blog2007 (10) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... handrachud, JJ. Sunil Purohit and Yogesh Deshpande for the Petitioner . H. Toor and N.K. Kamat for the Respondent . JUDGMENT Rule Respondents waive service. By consent Rule made returnable forthwith. Heard both the sides. 1.Punjab National Bank, a body corporate and constituted under The Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, filed an application, being Original Application No.802 of 2005 before the Debts Recovery Tribunal, Mumbai against the borrowers, (hereinafter referred to as the petitioners), Including other parties, for recovery of Rs.85,63,486/- with future interest at the rate of 18.5% per annum with quarterly rest till realisation. 2.The claim of the Bank was contested by the petitioners on various grounds. In September 2003, besides filing their written statement, they also filed counter claim, claiming certain amount against the Bank. During the pendency of those proceedings, petitioners filed an application for production of documents. This application was contested by the Bank. The parties had also filed affidavits and annexed various documents, which were available with them at that stage. 3.On 8 th Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stated that except the documents produced in the DRT, the respondent bank doss not have any other document in its possession which can be produced and whatever documents which are produced, copies thereof are part of the appeal paper book which is filed by the appellants in the Tribunal. 13. So far as procedure followed by the DRT is concerned, the bank is required under the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as Rules of 1993) to produce evidence by filing affidavit deviating from the procedure which is followed under the provisions of Code of Civil Procedure. In this connection sub-rules 6 and 7 of Rule 12 of the Rules, of 1993 are relevant. If the defendant denies liability to pay claim made by the applicant bank, the Tribunal can act on the affidavit of a person who is acquainted with the facts of the case or affidavit filed by an officer on the basis of the record. The application for cross examination of the witness can be granted only if the Tribunal is of the view that it is necessary to produce witness for cross examination. That necessity is not made out in the application filed by the appellants. The contents of the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that within the limited jurisdiction vested in the Tribunal under these provisions, the right to cross-examination is an exception and not a rule. While relying upon the judgment of the Supreme Court in the case of Union of India v. Delhi High Court, Bar Association AIR 2002 SG 1479, it is also argued that rule 12(7) empowers the Tribunal to act upon the affidavits and the need for oral examination of witnesses should rarely arise where, for good reason, the Tribunal is of the view that affidavits were not sufficient. Keeping in view the nature of the dispute in the present case, there is no justification for allowing cross examination of the Bank witness. No doubt, the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rules of 1993 provide for a self contained code in relation to the procedure which is to be adopted by the Tribunal. By the amendment to the procedure under the Amending Rules, 2003, the Rules were amended and particularly sub-rule (6) of rule 12 was substituted requiring the parties to lead evidence by filing affidavits and the discretion was given to the Tribunal to permit cross examination of the witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t June, 2007 passed by another Division Bench of this Court in Civil Writ Petition No. 2920 of 2006, titled as G.S. Rathore v. Union of India, where the Court was concerned with effect of procedural law and jurisdiction of the Central Administrative Tribunal under the provisions of Section 22(3) of the Act in relation to ordering discovery of documents Emphasising on the limited jurisdiction of the Tribunal in contradistinction to powers of the Civil Court, the Court held as under. 5. We may usefully refer to a recent judgment dated 21 st June, 2007 passed by another Division Bench of this Court in Civil Writ Petition No. 2920 of 2006, titled as G.S. Rathore v. Union of India, where the Court was concerned with effect of procedural law and jurisdiction of the Central Administrative Tribunal under the provisions of Section 22(3) of the Act in relation to ordering discovery of documents Emphasising on the limited jurisdiction of The Tribunal in contradistinction to powers of the Civil Court, the Court held as under. "4. The learned counsel appearing for the petitioner relied upon the judgment of this court in the case of Sonia Senroy v. Amit Senroy, AIR 1998 Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t). The application of the provisions of the Code would, therefore, be limited and restricted to the extent specified specifically in the provisions of section 22(3) of the. Act. The object of the Legislation is clear that it intended to exclude, by using specific language, application of the Code per-se and made restricted provisions applicable to the tribunal and to give liberal construction to this provision, would neither be fair nor permissible. In fact, it may amount to defeating the very object and purpose of the substantive provisions of section 22 and the scheme of the Act. The very purpose of constitution of the tribunal was for expeditious disposal of matters or disputes or complaints arising in respect of recruitment and conditions of services of persons appointed to the public service and posts. The tribunal, therefore, would exercise powers of civil court only limited by the requirements of clause ( a ) to ( i ) of sub-section (3) of section 22 of the Act." 6. Let us now examine the relevant Rules in light of the above scope of procedural law. Rule 12 of the Rules deals with filing of reply and other documents by the defendant in the proceeding before the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, the affidavit shall not be taken in evidence. In other words, the Rule provides for satisfaction of its requirements as well as consequence of default of non-compliance of the orders of the Tribunal. In the case of Union of India v. Delhi nigh Court Bar Association AIR 2002, SO 1479, while dealing with this aspect, the Supreme Court has held as under : "22. At the outset, we find that the Rule 12 is not happily worded. The reason for establishing banking Tribunals being to expedite the disposal of the claims by the banks, the Parliament thought it proper only to require the principles of natural justice to be the guiding factor for the Tribunals in deciding the applications, as is evident from S. 22 of the Act. While the Tribunal has, no doubt, been given the power of summoning and enforcing the attendance of any witness and examining him on oath, but the Act does not contain any provision which makes It mandatory for the witness to be examined, if such a witness could be produced. R. 12(6) has to be read harmoniously with the other provisions of the Act and the Rules. As we have already noticed, Rule 12(7) gives the Tribunal the power to act upon the affidavit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t." 8. The above enunciation of law clearly indicates that no Indefeasible right is vested in the Defendant before the DRT to ask for cross-examination of witnesses whose affidavits have been filed in exercise of the powers of the Tribunal under Rule 12 (6) of the Rules. Equally true is that there is a right to file an application making a request for cross-examination of witnesses, which has to be considered and decided by the Tribunal in the light of the above parameters. It will be difficult to provide for any strait jacket formula universally applicable as it would primarily depend upon the facts and circumstances of each case, whether or not the Tribunal should pass an order for production of the witnesses for cross-examination or not. However, while exercising such power, the Tribunal has to keep in mind that the purpose of cross-examination is normally to test the veracity of the witness and to bring true and correct facts on record. These are primarily matters relating to procedural law and which should be enforced objectively and with clear intent to serve the ends of justice. 9. In the present case, the defendants before the Tribunal, while contesting the claim ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of presentation memo or written communication by the drawee to return the documents. Besides these reasons, it was stated that the affidavit was contrary to records of the authorities as well as the Bank as there was no shortage. The defendants had exported 121 cartons which was certified by the customs authorities. The quantity sold by Mumbai Port Trust shows 121 cartons. Blank documents had been filed by the Bank without counter signatures of the defendants. The other ground stated was the necessity to cross-examine the witness to arrive at a just and fair conclusion on the basis of the pleadings of the parties. In the application of July, 2005, all those allegations were made which was subsequently withdrawn. Another application was filed in November, 2005, seeking to cross-examine the Manager of the Bank in relation to return of goods and suppression of material facts and non-production of documents. To this, reply was filed by the Bank which in substance is vague. The Tribunal in the Impugned order noticed that in terms of the affidavit of the Bank dated 29 th January, 2006, it had been stated that the Bank did not have any other documents except the documents already produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied before the application for cross-examination can be allowed. The word "necessary" must be construed in. the connection in which It is used. It is a word capable of various meanings. It may import absolute physical necessity, or that which is only convenient or useful or essential. It may also be construed as indispensable. The word "necessary" sometimes means such as must be impossible to be otherwise not to be avoided; Inevitable. In the case of Faqir Chand Agarwal v. Smt. Bhagwanti, AIR 1958 Punjab 287, the Court while explaining the words "necessary for disposal of suit" observed as under: - "The use of this language in this Article can only mean that the question involved must be such that it is not possible to dispose of the suit without determining the constitutional question raised." 14. We are of the considered view that the expression "necessary" should be given reasonably liberal interpretation as it is a part of procedural law and cannot be construed in abstract without reference to the facts and LAW OF THE CASE. It is always beneficial to construe such provisions with the aid of necessitas est lex temporis et loci. The word "necessary" should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavits would certainly bring the case of the appellants within the four corners of the provisions of Rule 12(6). In the original application filed by the Bank, it is stated in para 5 that the goods were delivered to the consignee but takes on the stand was that they were reimported to Mumbai. If such an averment is not supported by proper documents, which even partially is conceded before the Court, then the appellants would be entitled to cross-examine the witness in regard to such averments made in the affidavit tendered in evidence. There cannot be fixed parameters for consideration of such applications and each case would have to be examined on its own merits. 15. Based on non-production of documents, contradictory stand of the Bank, the documents being not supportive of each other and the controversy raised in the pleadings between the parties, It was a fit case where the request should have been allowed to completely and fully determine and decide the claim of the Bank and the counter claim of the borrower. Thus, in the Interest of justice and to fully and finally adjudicate the disputes between the parties, in our opinion, the application should have been allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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