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TMI Blog2015 (3) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... dication. The legal and factual effect of the reply given by the respondent bank as an answer to the documents sought, is an aspect or fact which will be examined by the DRT and the appellate authority under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Whether or not any adverse inference could or should be or should not be drawn etc. is again the matter of merit and not an issue which can be prematurely decided at this interim stage and that too in a writ petition under Article 226 of the Constitution. We refrain and do not comment and observe on the said aspects. Lastly, we may note that the petitioner has invoked writ jurisdiction of this Court and the said jurisdiction is normally exercised only when injus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . on account of derivative transactions. The petitioner herein had filed counter-claim which is also pending before the Debt Recovery Tribunal ( DRT , for short). 3. The petitioner herein had filed an application, seeking discovery and production of documents, IA No.345/2010 in O.A No.218/2009. Thereupon, Presiding Officer, DRT-II disposed of the said application vide its order dated 14.03.2011. Unfortunately, page 7 of the said order has not been filed and enclosed with the said order (Annexure P-8 in the present petition). However, what was directed to be furnished in the said order, stands reproduced in the order dated 18.06.2013, passed by DRT-II, and is as under: (a) Approval/Consent/Permission of the defendant/counter claimant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same was passed in exercise of power under Order XI, Rule 12 of the Code of Civil Procedure, 1908 ( Code for short). The case was thereafter adjourned to 19.04.2011. Order dated 19.04.2011 has not been placed on record. 5. In compliance of the above stated directions, the respondent bank, filed an affidavit dated 1.8.2011 and produced one document i.e. Conformation of Cancellation of Transaction No.4 dated 19th July 2007. In their affidavit, respondent bank pleaded that they cannot produce other documents/information as no such record of document/information was maintained by them. Justification and reasons were stated and given in the affidavit. It was averred that transaction No.1 was squared up on 02.07.2007 and the account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit/loss was credited or debited in the account nominated, which was maintained by the petitioner with the respondent bank. On the question of approval/consent/permission for increasing the amount of derivative transaction from ₹ 30 Crores to ₹ 86 Crores, the respondent bank, in the affidavit had stated that no subsequent documents were executed between them and at the initial stage itself, the term sheets containing description of transaction, purpose of transaction, risk disclosure and other details of the transaction, which were countersigned, were executed. Signed term sheets were sufficient authority and the relevant term sheets and confirmations were filed as Annexure-H to Annexure-O to the original application. Other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order dated 14.03.2011 was passed only under Order XI, Rule 14 of the Code. In view of the said statement, we need not examine the question of applicability of Order XI, Rules 12 and 21 of the Code. 10. Learned counsel for the petitioner has however drawn our attention to a decision of a Single Judge of this Court in SMS Udyog Ltd. vs. Flistex Magnetics Ltd. 103 (2003) DLT 42, wherein this interstice in the legal provisions was noticed by the Court and reference was made to the inherent power of the Court under Section 151 of the Code. He would draw our attention to the decision of another Single Judge of this Court in Vestergaard Frandsen A/S and Ors. vs. M.Sivasamy 2009 (40) PTC 223 (Del.). 11. Learned counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the respondent bank on the said aspect. There is nothing to show and establish that the respondent bank had documents, but they are being withheld. Whether or not the claim of the respondent bank has merit or should be dismissed or whether the counter-claim of the petitioner has merit or should be dismissed is a matter for determination and adjudication. The legal and factual effect of the reply given by the respondent bank as an answer to the documents sought, is an aspect or fact which will be examined by the DRT and the appellate authority under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Whether or not any adverse inference could or should be or should not be drawn etc. is again the matter of merit an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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