Asbil Engineering & Construction (India) Pvt. Ltd. v. The South Indian Bank Limited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.11.2009CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSICE M.DURAISWAMYC.R.P(PD).No.3255 of 2009& M.P.No.1 of 20091. 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/Defendant 1 & 2Vs.The South Indian Bank Limited,George Town Branch,Catholic Centre,No.64, Armenian Street, Chennai-600 001. .. RespondentCivil Revision Petition against the order dated 26.8.2009 inI.A.No.227 of 2009 in O.A.No.205 of 2003 on the file of the DebtsRecovery Tribunal-II, Chennai.For petitioners : Mr.Vijaya Narayanan, Senior Counsel for M/s.U.M.RavichandranFor 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 borrowerand the guarantor (the defendants 1 and 2 in Original ApplicationNo.205 of 2003), against the order dated 26.8.2009 passed by theDebts Recovery Tribunal-II, Chennai in I.A.No.227 of 2009 inO.A.No.205 of 2003. https://hcservices.ecourts.gov.in/hcservices/

2. By the said I.A., the petitioners/borrower and guarantorprayed the DRT to permit them to cross-examine the deponent of theproof affidavit filed on behalf of the applicant-Bank, which wasrejected by the impugned detailed reasoned order dated 26.8.2009.3. Learned Senior Counsel appearing on behalf of thepetitioners submitted that from the affidavit filed before theTribunal, it could be seen and established the manner in which theloan in question was sanctioned by the respondent-applicant-Bankand the collusion between the applicant-Bank and the seventhdefendant and therefore, the cross-examination of the deponent ofthe proof affidavit is necessary. While similar argument was madebefore the Tribunal, it was also submitted that the borrower andthe guarantor want to get certain information from the deponent ofthe proof affidavit.4. Learned Senior Counsel appearing for the petitioners, whilerelying on Section 22(2) of the Recovery of Debts Due to Banks andFinancial Institutions Act, 1993, submitted that the Tribunal isvested with same power as vested in the Civil Court under the CivilProcedure Code while trying a suit in respect of matters as showntherein, including summoning and enforcing, the attendance of anyperson and examination him on oath and for receiving evidence onaffidavits. It is contended that when once affidavit is received inproof of the claim (proof affidavit) and is marked as evidence, itis always necessary to cross-examine the deponent of suchaffidavit. 5. The aforesaid submissions were opposed by the learnedcounsel for the respondent-Bank, who also placed reliance on therelevant background of the case and suggested that thepetitioners/borrower and guarantor are trying to delay theproceedings.6. We have heard the learned counsel appearing for the partiesand perused the records.7. Admittedly, the Original Application was filed in the year2003. Despite receipt of summons initially, the petitioners(defendants 1 and 2) remained ex-parte without taking part in theproceedings, as they were set ex-parte. After about 1-1/2 years,the petitioners filed an application to set aside the ex-parteorder, which was allowed. In the proceedings, long back, the Bankfiled proof affidavit along with 33 documents as evidence, whichwere marked as Exs.A-1 to A-33. The Bank filed additional proofaffidavit, which was also marked as Ex.A-34. The petitioners weregiven sufficient opportunity to file reply statement on 11.8.2005,followed by filing of the counter proof affidavit filed by thepetitioners (defendants 1 and 2) on 22.4.2008 along with 15 https://hcservices.ecourts.gov.in/hcservices/ documents as their evidence. Thus, sufficient opportunity was givento the petitioners/defendants 1 and 2 to produce their documentaryevidence. Thereafter, the petitioners sat tight with the matter formore than a year and on 6.5.2009 wanted to cross-examine thedeponent of the proof affidavit, which was filed much earlier, i.e.in April 2004, followed by the additional proof affidavit filed on30.9.2006. This Court specifically asked the learned Senior Counselappearing for the petitioners to state as to why the petitionerswanted to cross-examine the deponent of the proof affidavit, whichwas filed as back as in the year 2004. No specific reply was givenon behalf of the petitioners, except to state that the petitioners-defendants 1 and 2 wanted to prove the collusion between the Bankand the seventh defendant. However, such submission cannot beaccepted in the absence of prima-facie case made out, warrantingcross-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 theSupreme Court in the case of "Union of India Vs. Delhi High CourtBar Assocn." reported in AIR 2002 SC 1479 and in the said case, theSupreme Court observed as follows: "23. In other words, the Tribunal has the power torequire any particular fact to be proved by affidavit,or it may order the affidavit of any witness may be readat the hearing. While passing such an order, it mustrecord sufficient reasons for the same. The proviso toR.12(6) would certainly apply only where the Tribunalchooses to issue a direction, on its own, for anyparticular fact to be proved by affidavit or theaffidavit of a witness being read at the hearing. Thesaid proviso refers to the desire of an applicant ordefendant for the production of a witness for cross-examination. In the setting in which the said provisooccurs, it would appear to us that once the parties havefiled affidavits in support of their respective cases,it is only thereafter that the desire for a witness tobe cross-examined can legitimately arise. It is at thattime, if it appears to the Tribunal, that such a witnesscan be produced and it is necessary to do so and thereis no desire to prolong the case that it shall requirethe witness to be present for cross-examination and inthe event of his not appearing, then the affidavit shallnot be taken into evidence. When the High Courts and theSupreme Court in exercise of their jurisdiction underArt.226 and Art.32 can decide questions of fact as wellas law merely on the basis of documents and affidavitsfiled before it ordinarily, there should be no reason asto why a Tribunal, likewise, should not be able to https://hcservices.ecourts.gov.in/hcservices/ decide the case merely on the basis of documents andaffidavits before it. It is common knowledge that hardlyany transaction with the Bank would be oral and withoutproper documentation, whether in the form of letters orformal agreements. In such an event the bonafide needfor the oral examination of a witness should rarelyarise. There has to be a very good reason to hold thataffidavits, in such a case, would not be sufficient." 9. In the present case, as we find that the petitioners havefailed to make out a prima-facie case to call for the deponent ofthe proof affidavit filed by the Bank for cross-examination and thematter appears to have been raised after long delay, after morethan five years of filing of such proof affidavit, we are notinclined to grant the relief as sought for in this Civil RevisionPetition. No case is made out to interfere with the impugned orderpassed by the DRT-II, Chennai.10. There being no merits, the Civil Revision Petition isdismissed. No costs. The Miscellaneous Petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsToThe Presiding Officer,Debts Recovery Tribunal-II, Chennai.+1cc to Mr.V.M.Ravichandran, Advocate Sr 64422+1cc to M/s. Rank Associates Sr 64598KS(CO)km/7.12.C.R.P.(PD).No.3255 of 2009