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2002 DIGILAW 179 (KAR)

EIKO SALES (PRIVATE) LIMITED, BANGALORE v. PRESIDING OFFICER, DEBT RECOVERY TRIUUNAL, BANGALORE

2002-03-05

R.GURURAJAN

body2002
R. GURURAJAN, J. ( 1 ) M/s. Eiko Sales (Private) Limited, and Sri Vijay Kumar, are before this Court seeking for an order to quash the proceedings before the Debt recovery Tribunal (for short the "tribunal") in O. A. No. 1012 of 1995 in terms of Annexure-B and for an appropriate direction for consideration of the applications filed by the petitioners before the Tribunal. ( 2 ) THE State Bank of Mysore (for short "bank") filed a suit in O. S. No. 4300 of 1988 on the file of the City Civil Judge, Bangalore, against the petitioner and others for recovery of certain amounts alleged to have been due from them. The suit came to be transferred to the Tribunal in terms of Section 31 of the Recovery of Debts due to Banks and Financial institutions Act, 1993 (for short "act" ). After transfer the suit was numbered as O. A. No. 1012 of 1995. ( 3 ) THE Bank stated in the plaint that 3 different types of credit facilities were made available to the petitioners. Several loan transactions were clubbed by the Bank in the suit. An application was filed under Rule 10 of the Rules before the Tribunal by the second petitioner. The said application came to be dismissed by the Tribunal. ( 4 ) THE Tribunal permitted the Bank to file an affidavit of the witnesses whom the Bank proposed to examine before the Tribunal. An affidavit was filed in this regard. According to the petitioner in terms of rule 12 (6) of the Rules the affidavit could not have been accepted. An application was filed by the petitioners under Rule 10 of the Rules before the Tribunal. The Tribunal refused to entertain the application and aggrieved by the same petitioners filed a writ petition in this Court in writ Petition No. 28667 of 1998. The petition came to be disposed of by this Court holding that the petition is premature inasmuch as the Tribunal has not passed any order. Thereafter, the petitioner moved an application and the Tribunal has rejected the same in the impugned order. Aggrieved by the same the petitioners are before this Court. ( 5 ) HEARD Sri Jayadeva, learned Counsel for the petitioners and perused the material placed before this Court. Thereafter, the petitioner moved an application and the Tribunal has rejected the same in the impugned order. Aggrieved by the same the petitioners are before this Court. ( 5 ) HEARD Sri Jayadeva, learned Counsel for the petitioners and perused the material placed before this Court. ( 6 ) LEARNED Counsel for the petitioners reiterates the facts and grounds raised in the petition in support of his prayers. ( 7 ) HE strongly relies on Rule 12 (6) of the Rules in support of his contention. His further argument is that when once the defendant desires the production of a witness for cross-examination, then that witness has to be produced and no order is to be made authorising the evidence of such witness to be given by way of an affidavit. Counsel also relies on a judgment of this Court in Writ Petition No. 15141 of 1998. ( 8 ) PER contra the Counsel for the Bank supports the order and also argues that the petition is not to be entertained in view of an appeal remedy under the Act. ( 9 ) AFTER hearing the parties on either side the following order is passed. ( 10 ) FACTS of the case would reveal that a suit came to be transferred to the Tribunal under Section 31 of the Act. The Bank has filed an affidavit by way of evidence. The petitioners filed an application seeking for an order to examine the witness of the Bank in view of the desire of the petitioner to cross-examine the witness of the Bank. The Tribunal in the case on hand has rejected LA. No. 5 filed by the petitioner and LA. No. 6 also was dismissed in view of the decision of the High Court recently. Cost is also imposed by the Tribunal. What is required to be seen by this Court is as to whether the Tribunal is justified in passing the impugned orders on the facts of this case. The Debt Recovery Tribunal Act, is an Act providing for disposal of the Bank disputes. A Tribunal is constituted under the Act. The Tribunal has been clothed with the power of adjudication as I see from the provisions of the Act. The rules have been framed in this regard for the purpose of examination of the witnesses. The rules are binding on the Tribunal in the matter of procedure before it. A Tribunal is constituted under the Act. The Tribunal has been clothed with the power of adjudication as I see from the provisions of the Act. The rules have been framed in this regard for the purpose of examination of the witnesses. The rules are binding on the Tribunal in the matter of procedure before it. The Tribunal is a creature of the statute. Rule 12 (6) of the rules read as under:"the Tribunal may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Tribunal thinks reasonable: provided that where it appears to the Tribunal that either applicant or defendant desire the production of a witness for cross-examination and that such witness can be produced an order shall not be made authorising the evidence of such witness to be given by affidavit". ( 11 ) A careful reading of the said rule would show that where it appears to the Tribunal either applicant or defendant desires production of a witness for cross-examination and such a witness can be produced, an order cannot be made authorising the evidence of such witness to be given by way of an affidavit. In the case on hand the petitioner desired to cross-examine the witness, and in such circumstances the Tribunal could not have rejected the request of the petitioners and could not have accepted the evidence by way of affidavit in the light of Rule 12 (6) of the rules. ( 12 ) IN this connection it is pertinent to refer to a judgment of this court in W. P. No. 15141 of 1998 in which this Court in para 7 has ruled categorically as under:"so far as acceptance of affidavit of witness is concerned, even though the first part of sub-rule (6), if Rule 12 of the Rules permits the parties to prove the fact or facts by way of affidavit or evidence of the witnesses, the proviso to the said rule impose a bar on the Tribunal from receiving such affidavits if a party desires to cross-examine the deponent". ( 13 ) THIS judgment makes it clear that the Tribunal could not have accepted the evidence in the light of the Rule 12 read with a desire of the party to cross-examine the witness. ( 13 ) THIS judgment makes it clear that the Tribunal could not have accepted the evidence in the light of the Rule 12 read with a desire of the party to cross-examine the witness. ( 14 ) THE Supreme Court in the case of Smt. Sudha Devi v M. P. Narayanan and others, has ruled in para 4 that affidavits are not included in the definition of evidence in Section 3 of the Indian Evidence Act and can be used as evidence only if for sufficient reason Court passes an order under Order 19, Rule 1 or 2 of the CPC. ( 15 ) A Full Bench of this Court in P. Nirmala v R. Anthony Raj, has ruled in para 10 reading as under:"we take this opportunity to point out that when there are grave allegations of cruel treatment, desertion and sodomy in the petition by the petitioner, it is settled law that they cannot be directed to be proved by filing an affidavit. Section 14 of the Divorce Act specifically states that "the Court should be satisfied on the evidence". The expression 'evidence' is defined in Section 3 of the indian Evidence Act. It states: "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. Section 14 of the Divorce Act, as stated above, specifically states that the Court should be satisfied on the evidence that the case of the petitioner is proved. Hence, the Court can neither direct a party to prove the allegations on mere affidavit of the party nor can it permit any affidavit to be read as evidence. Evidence has to be recorded in the manner contemplates under rule 4 or 5 of Order 18 of the CPC as the case may be. In the instant case, the Court has not even directed the party to prove any fact or facts by affidavit; but even so, has held that the case of the petitioner is proved by mere affidavit. The procedure followed by the Court is highly illegal and arbitrary. We deprecate it. The matter of dissolution of marriage under the Indian Divorce act is dealt with solemnity. The procedure followed by the Court is highly illegal and arbitrary. We deprecate it. The matter of dissolution of marriage under the Indian Divorce act is dealt with solemnity. Marriage among Christians is held sacred. The Christian maxim "let no man separate whom God has joined" shows the sanctity and solemnity of marriage. That is why a decree for dissolution of marriage has to be confirmed by the high Court and it is further specifically provided in this behalf that three Judges should sit to confirm the decree. The Presiding officer of the Trial Court, however, has taken the matter so lightly as to think that the petitioner can prove the grave charges like sodomy by filing an affidavit". ( 16 ) UNFORTUNATELY, the Tribunal without applying its mind to the material rules and in a mechanical manner has chosen to dismiss the application without even referring to the contents in its order. The order to say the least to my mind is wholly unsustainable in law. The Tribunal has dismissed I. A. No. 6 stating "in view of the decision of the High court recently". The details of the decision and the applicability of it to this case is missing in the order. It is needless for this Court to remind the Tribunal that judicial orders are to be based on facts and reasons and such interim applications are not to be dismissed on the ground of recent decisions without even giving the details as has been done in this case. The orders of the Tribunal are amenable to the appellate jurisdiction and to the writ jurisdiction. Therefore, the Tribunal ought to have at least mentioned the name of the decision of the High Court. Before this Court also no decision is pointed out by the contesting party in support of this order. In the circumstances this Court expresses its displeasure for this one line order of dismissal of the interim appeals contrary to the provisions of the Act. ( 17 ) THE respondents argue that under Section 20 an appeal remedy is available and therefore, this Court should not entertain this writ petition. Reliance is placed on the latest judgment of the Supreme Court in punjab National Bank v O. C. Krishnan and Others, The Apex Court in that reported case was considering with regard to an order passed directing the sale of property. Reliance is placed on the latest judgment of the Supreme Court in punjab National Bank v O. C. Krishnan and Others, The Apex Court in that reported case was considering with regard to an order passed directing the sale of property. That was a case of rejection of a valid application by one line order. The facts stands on different footing. The supreme Court in the very case has ruled that a revision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution. ( 18 ) ON the other hand this Court in a recent judgment in the case of syndicate Bank, Bangalore v Chamundi Industries, Bangalore and Others, has ruled as under:"the learned Counsel for the contesting respondents submits that this Court shall not entertain the writ petition under Article 226 of the Constitution as against the impugned order since there is an alternative remedy of appeal provided under the Act. No doubt, an appeal is provided as against the impugned order. But since the above writ petition is of the year 1998 and rule has been issued and it is pending till now it is not appropriate for this Court to dismiss the writ petition on the ground of alternative remedy at this distance of time. Further, providing for an alternative remedy of appeal alone does not in any way come in the way of this Court exercising the discretionary power conferred on it under Articles 226 and 227 of the Constitution of India, when it is satisfied that the Tribunal has committed the grave error in dismissing the application on technical ground. Therefore, the contention raised by the learned Counsel for the petitioner regarding maintainability on the ground of alternative remedy is stated to be rejected and accordingly, it is rejected". ( 19 ) THE said judgment is applicable to the facts of the case in which a grave error is committed by the Tribunal. ( 20 ) IN the circumstances I am of the view that the opposition on the ground of alternative remedy is to be rejected. ( 21 ) IN the result this petition is allowed. Impugned orders are set aside. The Tribunal is directed to reject the affidavit evidence of the bank and the Tribunal is further directed to order the production of the witness for examination on merits. ( 22 ) ORDERED accordingly. ( 21 ) IN the result this petition is allowed. Impugned orders are set aside. The Tribunal is directed to reject the affidavit evidence of the bank and the Tribunal is further directed to order the production of the witness for examination on merits. ( 22 ) ORDERED accordingly. Parties to bear their costs. --- *** --- .