Lingaraj Rice Mill v. State Bank of India, Sambalpur
2012-09-20
C.R.DASH, L.MOHAPATRA
body2012
DigiLaw.ai
Judgment L. MOHAPATRA, J. This writ application is directed against the order dated 24.8.2012 passed by the Presiding Officer, Debts Recovery Tribunal, Cuttack in Original Application No.23 of 2012. The aforesaid Original Application has been filed by the opposite party-Bank under Section 19 (1) of the Recovery of Due to Banks and Financial Institution Act, 1993 for recovery of loan advanced by the Bank to the petitioners. 2. In course of proceeding before the Tribunal, the petitioners filed an application under Section 22 (2) (a) (d) of the R.D.D.B. and F.I. Act for summoning P.W.1 for cross-examination and also for production of minutes of the meeting held on 14.2.2001. The reason behind filing of such application by the petitioners is that there was a meeting between the Bank and the petitioners on 14.2.2001, wherein it was decided that the entire transaction of the petitioners will be routed through the Bank and 10% of the sale proceeds will be debited to the loan account and the Bank will not proceed for recovery proceeding till the rehabilitation proposal is settled by the Bank and the entire process is reviewed after st March, 2002. It is the case of the petitioners that in violation of the aforesaid decision recorded in the minutes of the meeting dated 14.2.2001, opposite party-Bank filed the Original Application for recovery of loan dues. This plea appears to have been taken by the petitioners in paragraph-9 (III) of the written statement. When hearing of the Original Application commenced, evidence affidavit of Shri Sanjeeb Das, the Chief Manager of the opposite party-Bank, was filed before the Tribunal. In paragraph-17 of the evidence affidavit, it is stated by the said witness that in the joint meeting dated 14.2.2001 petitioner no.1 with an ulterior motive of legalising its illegal acts, requested the Bank to issue No Objection Certificate for availing loan from defendant no.4 and it is, therefore clear that the present petitioners tried to dilute the security created in favour of the Bank. Considering such a stand taken by the opposite party-Bank in the evidence affidavit of the said Sanjeeb Das, an application under Section 22 (2) (a) (d) was filed by the petitioners not only for summoning the said witness for crossexamination but also for production of minutes of the meeting held on 14.2.2001. 2.
Considering such a stand taken by the opposite party-Bank in the evidence affidavit of the said Sanjeeb Das, an application under Section 22 (2) (a) (d) was filed by the petitioners not only for summoning the said witness for crossexamination but also for production of minutes of the meeting held on 14.2.2001. 2. Shri Ashok Parija, learned Senior Counsel appearing for the petitioners submitted that an acceptable arrangement was made in the said meeting held on 14.2.2001 and a decision was also taken that the arrangement made in the said meeting shall continue and the entire process shall be reviewed after 31st March, 2002. However, before any such review could be made, the opposite party-Bank filed the Original Application for recovery of its dues in violation of the decision taken in the said meeting. In order to prove the above fact, it was necessary to cross-examine P.W.1, Shri Sanjeeb Das, as the Bank took a different stand in the evidence affidavit and for the purpose of cross-examination on this issue, minutes of the meeting held on 14.2.2001 was necessary. According to Shri Parija, learned Senior Counsel for the petitioners, the Tribunal erroneously held that since the decision taken in the meeting was within the knowledge of the petitioners and copy of the minutes of the meeting had also been provided to the petitioners as is evident from the last page of the written statement, there is no necessity to direct the opposite party-Bank for production of the said minutes. The Tribunal, according to Shri Parija, learned Senior Counsel for the petitioners, further erred in coming to a finding that necessity of cross-examination of a witness is depended on the facts and circumstances of the case and reasons must be shown to the satisfaction of the Tribunal as to why a witness is required to be cross-examined. It was contended on behalf of the petitioners that for the reasons stated earlier, cross-examination of P.W.1 is necessary and for the purpose of cross-examination, production of the decision taken in the minutes of the meeting held on 14.2.2001 was also necessary.
It was contended on behalf of the petitioners that for the reasons stated earlier, cross-examination of P.W.1 is necessary and for the purpose of cross-examination, production of the decision taken in the minutes of the meeting held on 14.2.2001 was also necessary. Shri D.P. Sarangi, learned counsel appearing for the opposite party-Bank submitted that in the petition filed by the petitioners no ground whatsoever has been made out as to why cross-examination of the said witness was required or reasons for making a prayer to direct the Bank for production of the minutes drawn on 14.2.2001. Accordingly, the Tribunal rightly rejected both the prayers. 3. Claim of the petitioners that there was a joint meeting on 14.2.2001 is not disputed by the Bank. The evidence affidavit of the aforesaid witness clearly shows that there was a joint meeting on the said date. The petitioners claim that in the said meeting a decision was taken to the effect that the entire transaction of the petitioners will be routed through the Bank and 10% of the entire sale proceeds will be debited to the loan account and the Bank will not proceed for recovery proceeding till rehabilitation proposal is settled by the Bank and the entire process shall be reviewed after 31st March, 2002, has not been denied by the Bank. On the other hand, in paragraph-17 of the evidence affidavit, it is admitted that there was a meeting on 14.2.2001, but intention of the petitioners was to legalise their illegal acts requesting the Bank to issue No Objection Certificate for obtaining the loan from defendant no. 4. The grievance of the petitioners that the Bank could not have proceeded for recovery of its dues before 31st March, 2002 may have some justification. Therefore, in the interest of justice the Tribunal should have allowed the prayer. 4. An objection was raised by Shri D.P. Sarangi, learned counsel appearing for the opposite party-Bank that the impugned order is appealable and the writ application should not be entertained when alternative remedy is available. In this connection, reference may be made to a decision of this Court in the case of Sri Tuhin Ranjan Das, Managing Partner of M/s. Kalinga Synthetic Industry Vrs. The Presiding Officer and others reported in 2006 (Supp.1) OLR-804. In the said decision, the writ application arose out of an order passed by the Debts Recovery Tribunal, Cuttack.
In this connection, reference may be made to a decision of this Court in the case of Sri Tuhin Ranjan Das, Managing Partner of M/s. Kalinga Synthetic Industry Vrs. The Presiding Officer and others reported in 2006 (Supp.1) OLR-804. In the said decision, the writ application arose out of an order passed by the Debts Recovery Tribunal, Cuttack. A similar contention was raised before this Court and relying on a decision of the Hon’ble Apex Court in the case of State of U.P. Vrs. Mohammad Nooh reported in A.I.R. 1958 S.C.86., the Court not only entertained the writ application but also allowed the same. This Court in an another decision in the case of Veer Singh Kothari Vrs. State Bank of India and 10 others reported in 2009 (I) CLR-20 also entertained an application against the order of the D.R.T. and disposed of the same on merit. The question of right of cross-examination was considered in the said decision. The Court held that right of cross-examination is an integral part of the principles of natural justice and wherever necessary cross-examination of a witness should be allowed. In this case, we have already observed that if the contention of the petitioners in relation to the decision taken on 14.2.2001 is found to be correct, he may have a justification for raising a plea that before st March, 2002 the Bank could not have filed the Original Application for recovery of its dues. Cross-examination of the witness is necessary as the Bank admits that there was such a meeting on 14.2.2001 and does not deny the allegation made by the petitioners in relation to the decision taken in the meeting but alleges that the petitioners with an ulterior motive to legalize their illegal acts, requested the Bank to issue No Objection Certificate for availing loan from defendant no.4. We are of the considered view that under the facts and circumstances of this case, cross-examination of P.W. 1 is necessary. 5. So far as production of document is concerned, we agree with the submission of Shri D.P. Sarangi, learned counsel appearing for the opposite part-Bank that the petitioners no where stated in the petition that they have been supplied with a copy of the minutes of the meeting held on 14.2.2001. Therefore, in absence of such pleading, the Tribunal could not have considered the prayer in this respect.
Therefore, in absence of such pleading, the Tribunal could not have considered the prayer in this respect. While we agree with the above submission of the learned counsel appearing for the opposite party-Bank, we also feel surprised from the observation made by the Tribunal that copy of the minutes of the meeting had also been provided to the petitioners as is evident from the last page of the written statement filed by them. The last page of the written statement only shows the following:- “All the documents referred to in the written statement”. 6. We, therefore direct that in the event the petitioners file an application before the Tribunal in the said Original Application for production of the said documents from the custody of the opposite party-Bank in terms of the law provided therefor, the same shall be considered by the Tribunal and orders shall be passed thereon. Cross-examination of the witness, Shri Sanjeeb Das, shall be deferred till such application is disposed of. In order to expedite the process, we further direct the petitioners to file such a petition before the Tribunal within a period of ten days from today. The writ application is disposed of accordingly. Application disposed of.