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2010 DIGILAW 508 (KAR)

Mysore Pure Silks v. Union Bank of India

2010-04-08

AJIT J.GUNJAL

body2010
JUDGMENT :- Ajit J.Gunjal, J: Both the learned Counsel submit that there is a connected matter in W.P.No.33165/2009 and the same is not listed today. Records are summoned and both the writ petitions arc disposed of by this common order. W.P.No.33166/2009 2. An application is filed by the respondent, financial institution for recovery of certain amount before the Debt Recovery Tribunal. The petitioner filed his written statement The petitioner also makes an application under Section 22(2) of the Act seeking permission to cross examine the respondent. The respondent Bank filed objections to the said application. The Tribunal however has passed an order rejecting the said application on the ground that there are no disputed questions of fact which would warrant cross-examination of the witness of the respondent. Aggrieved by the said order at Annexure-E, the petitioner is before this Court. 3. Learned Counsel appearing for the petitioner submits that there are some disputed questions of fact which would warrant cross-examination of the respondent’s witnesses. He further submits that there are some LIC policies, stocks and deposits in the custody of the Bank and after expiry, they have been appropriated towards some other loan, when it was specifically understood that the said amount was required to be adjusted to the present dispute. 4. Learned Counsel for the respondent submits that there are no disputed questions of fact and the matter could he decided on the basis of facts. 5. I have perused the impugned order. Apparently, whether the contention of the petitioner that after maturity, the said amount is required to be adjusted to the present loan account, or some other loan account of the petitioner with the respondent Bank is a matter which can be ascertained only after he cross-examines the witness of the respondent Bank. Indeed, it is to be noticed that right to cross-examine is an inherent right in any judicial proceedings. The same cannot be denied on the ground that there are no disputed questions of fact. Indeed, the Apex Court in the case of Union of India and Another Vs. Delhi High Court Bar Association and Others reported in AIR 2002 SC 1479 : (2002) 4 SCC 275 has not ruled that the defendant is not entitled to cross-examine the witnesses of the plaintiff before the Debt Recovery Tribunal. Indeed, the Apex Court in the case of Union of India and Another Vs. Delhi High Court Bar Association and Others reported in AIR 2002 SC 1479 : (2002) 4 SCC 275 has not ruled that the defendant is not entitled to cross-examine the witnesses of the plaintiff before the Debt Recovery Tribunal. The Apex Court has observed in the following terms: “In the setting in which the said proviso occurs, it would appear that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise.” 6. In the case on hand, it is to be noticed that the respondent Bank has filed its affidavit by way of evidence which would necessarily mean that a legitimate claim has arisen to cross-examine the witness. Having said so. I am of the view that the impugned order passed by the Tribunal is liable to be interfered. 7. Insofar as the companion writ petition (W.P.No.33165/09), the relief sought for by the petitioner is almost identical. But however, with a slight difference, inasmuch as, the learned Counsel appearing for the Bank submits that the petitioner in the companion writ petition is a sister concern and they were entitled to appropriate the loan. The said factual aspect is disputed by the learned Counsel for the petitioner-indicating that both the firms are independent and different entities. Nevertheless, the legitimate right of the petitioner to cross-examine the witness of the respondent Bank cannot be denied having regard to what is stated above. Hence the following order: (1) Both the petitions are allowed: (2) The impugned order at Annexure-E stands quashed. (3) The application filed by the petitioners to cross-examine the witness of the respondent-Bank is granted.