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2008 DIGILAW 814 (ORI)

Veer Singh Kothari v. State Bank of India

2008-09-10

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
Judgement Dr. B. S. CHAUHAN, C. J. :- This writ petition has been filed for quashing the impugned order dated 9-11-2006 by which the Tribunal has rejected the application for cross-examining the witness of the bank. 2. The facts and circumstances giving rise to the case are that M/s. Konark Paper and Industries Ltd. of which the petitioner was the Managing Director approached the opposite party No. 1, the State Bank of India for financial assistance in the year 1981 and considering his application, the said Bank granted medium term loan of Rs. 25 lakhs by sanction order dated 9-7-1981 and for that purpose several documents were executed. As the bank loan had not been paid in time and there was default on the part of the petitioner, the opposite party bank filed O.A. No. 16 of 2006 before the Debts Recovery Tribunal (hereinafter called the Tribunal') for recovery of a sum of Rs. 1,05,61,676/- under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter called the 'Act, 1993'). After receiving the notice, the petitioner entered appearance and filed a written statement stating inter alia, that loan documents annexed to the original application had not been executed properly and the opposite party-bank had taken signature of the petitioner on blank papers, which he made in good faith. Execution of large number of documents was denied altogether by the petitioner. The opposite party-bank filed the evidence on affidavit in support of the factual aspects of the case as pleaded in the original application. Petitioner also replied the same by filing affidavit supporting his submission made in the written statement. Petitioner submitted an application i.e. M.A. No. 606 of 2006 on 26-10-2006 before the Tribunal praying for permission of cross-examination of the deponent i.e. Manager of the opposite party-bank submitting that it was necessary for the applicant to verify the facts as most of the documents were not genuine. The opposite party-bank filed objection to the said application and ultimately the Tribunal dismissed the said application vide order dated 9-11-2006 (Annex. 4) with cost of Rs. 1000/-. Hence this appeal. 3. Mr. S. Udgata, learned counsel appearing for the petitioner submitted that dismissal of the application is in violation of the provisions of Rule 12(6) of the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter called the 'Rules, 1993') and the principles of natural justice. 4) with cost of Rs. 1000/-. Hence this appeal. 3. Mr. S. Udgata, learned counsel appearing for the petitioner submitted that dismissal of the application is in violation of the provisions of Rule 12(6) of the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter called the 'Rules, 1993') and the principles of natural justice. Therefore, the petition deserved to be allowed. 4. On the contrary, Mr. Himanshu Pattnaik, learned counsel for the bank has vehemently opposed the petition contending that this Court should not interfere with the impugned order passed by the Tribunal. Interference at the interlocutory stage is not warranted at all. Provisions of the Code of Civil Procedure (hereinafter called the 'CPC') do not apply in these proceedings. Procedure prescribed under the Act, 1993 and Rules, 1993 can be resorted to. The same do not provide for such a course, thus application for calling a witness, who has filed affidavit in evidence, at the behest of a party, cannot be accepted. In support of his contention he has placed reliance on the judgments of Hon'ble Supreme Court in Union of India v. Delhi High Court Bar Association, AIR 2002 SC 1479 ; and State Bank of India v. M/s. Allied Chemical Laboratories, (2006) 9 SCC 252 , wherein it has been held that writ Court should not interfere against the order of rejection of the application for cross-examination of a witness. The petition deserve to be dismissed. 5. We have considered the rival submissions made by the parties and also perused the record. 6. Section 22 of the Act, 1993 provides that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the principles of natural justice. The question does arise as to whether the cross-examination of a witness is alien to the principle of natural justice. 7. A Constitution Bench of the Supreme Court in State of M. P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623 held that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not giving that opportunity to cross-examine the witness would violate the principles of natural justice. 8. Similar view has been reiterated by the Apex Court in Union of India v. T. R. Varma, AIR 1957 SC 882 ; Khem Chand v. Union of India and Ors., AIR 1958 SC 300 ; Jagannath Prasad Sharma v. State of U.P. and Ors., AIR 1961 SC 1245 ; State of Mysore and Ors. v. Shivabasappa Shivappa Makapur, AIR 1963 SC 375 ; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719 ; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar and Ors., AIR 1964 SC 708 ; State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679 ; State of Punjab v. Diwan Chuni Lal, AIR 1970 SC 2086 ; State Bank of India v. R. K. Jain and Ors., AIR 1972 SC 136 ; Bareilly Electricity Supply Co. Ltd. v. Workmen and Ors., AIR 1972 SC 330 ; Delhi Cloth and General Mills Co. v. Tejvir Singh, AIR 1972 SC 2128 ; State of Kerala v. K. T. Shaduli Grocery Dealer, AIR 1977 SC 1627 ; Town Area Committee, Jalalabad v. Jagdish Prasad and Ors., AIR 1978 SC 1407 , Managing Director, U.P. Warehousing Corporation v. Vijay Narayan Vajpayee, AIR 1980 SC 840 ; Kishinchand Chellararn v. Commissioner of Income Tax, Bombay, AIR 1980 SC 2117 ; K. L. Tripathi v. State Bank of India and Ors., AIR 1984 SC 273 ; Sawai Singh v. State of Rajasthan, AIR 1986 SC 995 ; and Shalimar Rubber Industries and Ors. v. Collector of Central Excise, Cochin, AIR 2003 SC 237 . 9. In Lakshman Exports Ltd. v. Collector of Central Excise, (2005) 10 SCC 634 : 2003 AIR SCW 2938, the Apex Court while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission for cross-examination of a witness. In the said case the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concern to establish that goods in question had been accounted for in their books of account and excise duty had been paid. The Court held that such a request cannot be turn down as denial of right to cross-examine amounts denial of right of hearing i.e. audi alteram partem. 10. The Court held that such a request cannot be turn down as denial of right to cross-examine amounts denial of right of hearing i.e. audi alteram partem. 10. In New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr., (2008) 3 SCC 279 : AIR 2008 SC 876 , the Supreme Court considered a case under the Public Premises, Eviction of Unauthorised Occupants Act, 1971 and held as follows :- "If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right." (Emphasis added) 11. In view of the above, we are of the considered opinion that right of cross-examination is an integral part of the principles of natural justice. 12. It gives rise to further question as to what extent this right of cross examination being part of the natural justice can be enforced in view of the provision of the Act, 1993 and Rules, 1993. 13. Section 22 of the Act provides that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down in CPC, but shall be guided by the principles of natural justice and subject to other provisions of the Act and the Rules the Tribunal and the appellate forum shall regulate their own procedure. Sub-section (2) thereof provides that the Tribunal and the appellate forum shall have the powers provided under the CPC in respect of certain matters mentioned thereunder. Rule 12 (6) of the Rules, 1993 provides that it is the Tribunal which may for sufficient reasons order that a particular fact be proved by affidavit or that the affidavit of any witness shall be read at the hearing and in that situation the party may be permitted to cross-examine a witness/deponent of the affidavit and in case the deponent refuses to come to the Court the affidavit shall not be taken into consideration. Rule 18 of the Rules, 1993 provides that the Tribunal may make such orders to give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. Rule 18 of the Rules, 1993 provides that the Tribunal may make such orders to give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. 14. The Supreme Court in State Bank of India v. M/s. Allied Chemical Laboratories and Anr. (supra) considered this issue and deprecated the practice of entertaining the writ petition by the High Court against the order of refusal to cross examine the witness who has filed the affidavit in evidence. In the said case, after rejection of such an application, the applicant did not challenge the said order and the Tribunal concluded the proceedings and passed the final order. Subsequent thereto, at much belated stage, some other party challenged the order of rejection of application for permitting the cross-examination by filing the writ petition, which has been disapproved by the Court. The Apex Court has not held that such an application was not maintainable or the application could not have been decided. The said judgment is an authority laying down the law that High Court should not interfere at such a belated stage and that the party first should exhaust the statutory remedy of appeal. Thus, the said judgment is of no help to the respondents. 15. In Union of India v. Delhi High Court Bar Association, AIR 2002 SC 1479 (supra), the issue was examined by the Supreme Court wherein the Court noticed that the Rule 12 was not happily worded. The purpose of establishment of the Bank's Tribunal was to expedite the disposal of claims by the banks. The Tribunal was given the power to summon and enforce the attendance of the witness and examine him on oath. But the Act does not contain any provision which makes it mandatory for the witness to be examined, if such witness could be produced. Thus the Court held that the Tribunal may ask a party to prove a fact on affidavit if it considers it necessary, but it must record sufficient reasons for the same. The Court further held as under :- "It is only thereafter that the desire for a witness to be cross-examined can legitimately arise. Thus the Court held that the Tribunal may ask a party to prove a fact on affidavit if it considers it necessary, but it must record sufficient reasons for the same. The Court further held as under :- "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 as 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........ 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 bona fide 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." Even in the said case, the Apex Court has not held that a party cannot file an application for cross-examination of a witness. Rather the Court observed that there will be hardly any occasion where oral examination may be required. Thus, possibility of oral examination is not excluded altogether. 16. Be that as it may, the issue involved herein has not been agitated before the Apex Court in the said case. In fact constitutional validity of the Act, 1993 was under challenge on the ground that the Act was not reasonable and was violative of Article 14 of the Constitution and it was beyond the competence of the Parliament to enact it. The main contention in the said case had been that when the subject matter can be adjudicated upon by the Civil Court why such a Tribunal be constituted. 17. The submissions made by Sri Himanshu Pattnaik, learned counsel for the Bank that the judgment is binding upon this Court and the Court cannot interfere with the order of the Tribunal and create a right to cross-examine in such a case is not tenable for the reason that the issue involved herein had not been agitated before the Apex Court in the aforesaid case. 18. 18. There can be no dispute that the law laid down by the Apex Court is binding on all Courts of the country in view of the provisions of Article 141 of the Constitution of India but the decision of the Hon'ble Apex Court is to be read with reference to and in the context of the peculiar statutory provisions interpreted by the Court and taking into consideration the facts of the case where the law had been laid down. 19. It is settled proposition of law that an issue, which has not been considered by the Court while delivering a judgment, cannot be said to be binding as a decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Court must carefully try to ascertain the true principle laid down by the decision of the Court. The Court should not place reliance upon a discussion without discussing as to how the factual situation fits in with a fact situation of the decision on which reliance is placed, as it has to be ascertained by analyzing all the material facts and the issues involved in the case and argued on both sides. The judgment has to be read with reference to and in context with a particular statutory provisions interpreted by the Court as the Court has to examine as what principle of law has been decided and the decision cannot be relied upon in support of a proposition that it did not decide vide H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India, AIR 1971 SC 530 ; M/s. Amar Nath Om Parkash and Ors. v. State of Punjab and Ors., AIR 1985 SC 218 ; Rajpur Ruda Meha and Ors. v. State of Gujarat, AIR 1980 SC 1707 ; C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 : AIR 1993 SC 43 ; Sarva Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd. and Anr., (1993) 2 SCC 386 : 1993 AIR SCW 982; Haryana Financial Corporation and Anr. v. M/s. Jagdamba Oil Mills and Anr., AIR 2002 SC 834 ; Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362 : AIR 2004 SC 2890 ; ICICI Bank and Anr. Ltd. and Anr., (1993) 2 SCC 386 : 1993 AIR SCW 982; Haryana Financial Corporation and Anr. v. M/s. Jagdamba Oil Mills and Anr., AIR 2002 SC 834 ; Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362 : AIR 2004 SC 2890 ; ICICI Bank and Anr. v. Municipal Corporation of Greater Bombay and Ors., AIR 2005 SC 3315 ; M/s. Makhija Construction and Enggr. Pvt. Ltd. v. Indore Development Authority and Ors. AIR 2005 SC 2499 ; and Shin Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and Anr., (2005) 7 SCC 234 : AIR 2005 SC 3766 . 20. In Jawahar Lal Sazawal and Ors. v. State of Jammu and Kashmir and Ors., AIR 2002 SC 1187 , Hon'ble Supreme Court held that a judgment may not be followed in a given case if it has some distinguishing features. 21. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., AIR 2003 SC 511 ; and Union of India v. Chajju Ram, AIR 2003 SC 2339 the Hon'ble Supreme Court held that a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. While deciding the said case the Court placed reliance upon its earlier judgment in Delhi Administration v. Manohar Lal, AIR 2002 SC 3088 . 22. In Ashwani Kumar Singh v. U.P. Public Service Commission and Ors., AIR 2003 SC 2661 , the Apex Court held that a judgment of the Court is not to be read as a statute as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. Substantial flexibility; one additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. 23. Thus, in view of the above, it can be inferred the judgments of the Supreme Court relied upon by Mr. Himanshu Pattnaik do not render any assistance to the respondents on the issue involved herein as the same issue has not been agitated/involved in either of the said cases before the Apex Court. 24. 23. Thus, in view of the above, it can be inferred the judgments of the Supreme Court relied upon by Mr. Himanshu Pattnaik do not render any assistance to the respondents on the issue involved herein as the same issue has not been agitated/involved in either of the said cases before the Apex Court. 24. In Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and Ors., AIR 1999 SC 1975 , the Apex Court, considering the provisions of the Act, 1993, which is involved in the instant case examined the issue as to whether the Tribunal had a power to gran - nterim ex parte order though not provided under the Act and Rules, 1993 and came to the conclusion that while considering the provisions of Section 22 of the Act, 1993 it must be held that the powers of the Tribunal are wider than the powers of the Civil Court and the only limitation was that it should observe principle of natural justice. The Court in crystal clear word said that not only the Tribunal can apply the provision of CPC but can travel beyond it and observed as under :- "We, however, do not agree with the reasoning adopted by the High Court. When Section 22 of the Act says that the Tribunal shall not be bound by the procedure laid by the Code of Civil Procedure, it does not mean that it will not have jurisdiction to exercise powers of a Code of Civil Procedure. Rather the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice." 25. Similarly in Allahabad Bank v. Radha Krishna Maity and Ors., AIR 1999 SC 3426 , the Hon'ble Supreme Court considered a similar issue as the ex parte interim order restraining the Bank to make any recovery of money had been passed by the Tribunal and it was contended that the Tribunal had no power to pass such an order. The Apex Court took into consideration the provision of Section 22 of the Act, 1993 and Rule 18 of the Rules, 1993 and came to the conclusion that the width and amplitude of the powers are to be gathered from Section 22 and Rule 18 which enables the Tribunal to pass orders to secure the ends of justice. The Apex Court took into consideration the provision of Section 22 of the Act, 1993 and Rule 18 of the Rules, 1993 and came to the conclusion that the width and amplitude of the powers are to be gathered from Section 22 and Rule 18 which enables the Tribunal to pass orders to secure the ends of justice. Therefore, the order has been passed in conformity with the principles of natural justice. 26. It is settled legal proposition that affidavit is not an evidence within the meaning of Section 3 of the Evidence Act as held by the Courts in Prakash Rai v. J. N. Dhar, AIR 1977 Del 73 ; Radha Kishan v. Navratan Mal Jain and Anr., AIR 1990 Raj 127 ; S. Sukumar v. Spl. Commissioner of Commercial Taxes, Madras, AIR 1991 Mad 238 ; and M/s. Glorious Plastics Ltd. v. Laghate Enterprises and Ors., AIR 1993 Bom 224 . 27. In Sudha Devi v. M. P. Narayanan and Ors., AIR 1988 SC 1381 , the Supreme Court held that affidavits are not included in the definition of "evidence" in Section 3 of the Evidence Act and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under O. 19, Rr. 1 and 2 of the Code. Similar view has been reiterated in Range Forest Officer v. S. T. Hadimani, AIR 2002 SC 1147 , wherein the Apex Court held that filing of an affidavit only of his own statement in his favour cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion of a particular fact-situation. 28. In Abdul Hameed Khan v. Mujeed-ul-Hasan and Ors., AIR 1975 All 398 , it was held that if contents of affidavits are contradicted, the Court may summon the deponents of the affidavits for cross-examination. 29. While examining a case under the provisions of the Industrial Disputes Act, 1947, the Supreme Court, in M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., AIR 1972 SC 330 , considered the application of Order 19 Rules 1 and 2 of CPC and observed as under :- "But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. Ltd. v. The Workmen and Ors., AIR 1972 SC 330 , considered the application of Order 19 Rules 1 and 2 of CPC and observed as under :- "But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is: is it a genuine document, what are its contents and are the statements contained therein true...........If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite parry who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under O. 19 of the Code and the Evidence Act, both of which incorporate the general principles." 30. In Needle Industries (India) Ltd. and Ors. v. N.I.N.I.H. Ltd. and Ors., AIR 1981 SC 1298 , the Apex Court considered the case under the Indian Companies Act and observed that "it is generally dissatisfactory to record a finding involving grave consequences to a person on the basis of affidavits and documents without asking that person to submit to cross-examination" unless the parties have agreed to proceed with the matter on the basis of affidavits only. 31. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700 , the Supreme Court considered the scope of application of provisions of O. 19, Rr. 1 and 2 in a rent control matter, observing as under :- "The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure." 32. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure." 32. In Standard Chartered Bank v. Andhra Bank Financial Services Ltd. and Ors., (2006) 6 SCC 94 : AIR 2006 SC 3626 , the Apex Court while dealing with a case under the provisions of Companies Act, 1956 and considering the complex issues of Markets and Exchanges and Securities and the procedure to be followed by special Tribunals held as under : "While it may be true that the Special Court has been given a certain amount of latitude in the matter of procedure, it surely cannot fly away from established legal principles while deciding the cases before it. As to what inference arises from a document, is always a matter of evidence unless the document is self-explanatory.......In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the suit on the basis of its inference based on such assumed explanations." 33. The right of hearing can be regulated/curtailed to certain extent. The right of hearing does not necessarily mean the right of personal/oral hearing vide Hira Nath Mishra and Ors. v. Principal, Rajendra Medical College, Ranchi, AIR 1973 SC 1260 ; and State of Haryana v. Ratan Singh, AIR 1977 SC 1512 . 34. In view of the above, it is beyond imagination that the document can be relied upon without giving the opportunity to the party to explain its nature and contents and other party to controvert the same, particularly while considering the same provisions of the Act and Rules involved herein, the Apex Court has held that the principles of natural justice are to be followed in addition to the provisions of CPC. 35. The issue requires to be considered in the light of the context and the purpose for which the Act has been enacted. At the same time, it should not deprive a person from putting its case fully. 35. The issue requires to be considered in the light of the context and the purpose for which the Act has been enacted. At the same time, it should not deprive a person from putting its case fully. In a case like the instant, if a party denies the execution of documents altogether which have been mentioned in the affidavit or claims that documents had never been signed by him, it may be necessary to cross-examine the deponent of the affidavit wherein such documents have been referred to. The Tribunal has been created to expedite the recovery of the bank's dues. Therefore, the party cannot ask for cross-examination in each and every case as it would mean delaying tactics. Thus, in such a situation, a balance is required to be struck-off. In such a situation, a party seeking cross-examination must show reasons for cross-examination and what would be the prejudice if such a relief is not granted. Necessity of cross-examination will depend upon the facts and circumstances of each case. Therefore, it cannot be in every case, that application for cross-examination can be filed and it has to be allowed as a general rule. The veracity of averments made in the affidavit can be tested by cross-examination but unless it is established that the veracity of facts stated in the affidavit is necessary to be tested by cross-examination, it is not necessary for the Tribunal to allow such an application. Therefore, in spite of the fact that cross-examination is a part of principle of natural justice, it cannot be accepted that it would be available in all cases and in all circumstances. As oral examination in all cases is not contemplated and while deciding such a case, the authority has to record the reasons. In case the authority comes to the conclusion that application has been filed only to delay the proceedings, definitely it has a right to reject the same. More so, in an appropriate case, such an application requires to be considered when the affidavit is relied upon and pressed into service. It should also be examined as to whether it is necessary to grant the right of cross-examination as it would depend upon the facts and circumstances of each case. More so, in an appropriate case, such an application requires to be considered when the affidavit is relied upon and pressed into service. It should also be examined as to whether it is necessary to grant the right of cross-examination as it would depend upon the facts and circumstances of each case. Therefore, this is discretionary power of the authority but it has to be exercised sparingly while considering the application taking note of facts and circumstances of each case. As application require to be decided in the factual ground of the case and in the context of the nature of the proceedings under the Act. 36. The Tribunal has not considered any of the issue and rejected the application placing reliance of the judgment of the Hon'ble Supreme Court in Union of India v. Delhi High Court Bar Association, AIR 2002 SC 1479 (supra). The petition succeeds and allowed. The impugned order dated 9-11-2006 is set aside. 37. The Tribunal is requested to reconsider the application at the stage when the affidavit filed by the Bank is to be considered, taking note as to the facts and circumstances involved therein and render the finding as to whether it is necessary to grant such a relief in order to ascertain the veracity of the context thereof. The Tribunal is requested to conclude the trial expeditiously. 38. B. N. MAHAPATRA, J. :- Iagree. Petition allowed.