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2015 DIGILAW 1058 (KAR)

G. R. Gopinath v. Syndicate Bank

2015-09-07

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. 1. The petitioner is before this Court assailing the order dated 15-4-2015 passed on I.A. No. 267 of 2015 in O.A. No. 267 of 2013. By the said order, the Debt Recovery Tribunal ('the DRT' for short) has rejected the prayer of the petitioner herein seeking leave to cross-examine A.W. 1 who was examined on behalf of the first respondent-bank. It is in that view the petitioner is before this Court. The respondents have filed their objection statement to this petition. Among other contentions, the contention with regard to the maintainability of this writ petition has also been raised. However, considering the fact that such contention is being considered before a Full Bench of this Court which has not yet concluded, if the decision therein is awaited, there would be further delay in this matter. Hence, the said contention is not pressed seriously and the matter is argued on merits. Accordingly, the petition is taken up. 2. Learned Senior Counsel for the petitioner while assailing the order passed by the DRT in seeking that an opportunity be granted to the petitioner herein to cross-examine A.W. 1 before the DRT has apart from referring to the facts based on which the cross-examination is being sought has also relied on the decisions of the Hon'ble Supreme Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, AIR 2013 SC 58 : (2013) 4 SCC 465 : (2013) 2 SCC (L and S) 296 : 2012 AIR SCW 6177 and the decision of the learned Single Judge of this Court in Mysore Pure Silks and Sarees Private Limited v. Union of India, 2010 KCCR 1881 . 3. Learned Counsel for the respondent on the other hand, referring to the facts and circumstance of the case would contend that the reasons assigned seeking for cross-examination is not based on any documents relied on by the bank and not based on any statement made by P.W. 1 and therefore has referred to the order of the Tribunal to indicate that the same has been considered and thereafter the impugned order has been passed rejecting the application. The learned Counsel has relied on the decision of the Hon'ble Supreme Court in the case of Union of India and Another v. Delhi High Court Bar Association and Others, AIR 2002 SC 1479 : (2002) 4 SCC 275 , which has been taken note by the Tribunal and thereafter has arrived at the conclusion. 4. In the light of the above, having taken note of the decision of the Hon'ble Supreme Court in the case of Delhi High Court Bar Association, which has been referred to with specific reference made to para 23, there can be no dispute that ordinarily the cross-examination of the witness before the DRT is not permitted as it cannot be treated as routine matter or in the usual course. However, even if the said decision is kept in view, in appropriate cases, the cross-examination can be permitted by the Tribunal and such discretion vests with the Tribunal depending on the facts and circumstances of the case based on which such leave is sought. Hence, the cross-examination is not a total bar, but a right which is not available to a party as a matter of course, but could be permitted in appropriate cases. 5. In fact the learned Single Judge of this Court in the case of Mysore Pure Silks and Sarees Private Limited, relied on by the learned Senior Counsel for the petitioner has after referring to the case of Delhi High Court Bar Association has found it fit to permit cross-examination in the said case, based on the facts arising therein. In the decision in the case of Ayaaubkhan Noorkhan Pathan relied on by the learned Senior Counsel for the petitioners, the Hon'ble Supreme Court though was not considering a situation under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 wherein the DRT would be regulating the process has referred to several other decisions where such right of cross-examination is not available as a matter of course. However, even in that light, the Hon'ble Supreme Court was of the opinion that the meaning of providing reasonable opportunity would also include the right of cross-examination in appropriate cases. However, even in that light, the Hon'ble Supreme Court was of the opinion that the meaning of providing reasonable opportunity would also include the right of cross-examination in appropriate cases. Therefore, keeping in view the dictum of the Court in the circumstances noticed above and also having taken note of the circumstance that in a matter before the DRT under the RDDB Act, the right of cross-examination could be sparingly provided by the Tribunal, it is necessary to notice as to whether in the instant facts, such cross-examination is to be permitted. 6. The petitioners are the guarantors in respect of the loan said to have been advanced to the second respondent. While seeking to contend that their guarantee as provided by them would impliedly stand discharged, have referred to certain circumstance under which the respondents have acted and therefore they contend that the same would become relevant for the purpose of being elicited by way of cross-examination of A.W. 1. It is in that view the application had been filed. It is their case that though the initial loan was advanced on 8-2-2010 a shareholder's agreement was entered into on 15-4-2010, between the petitioner herein and the second respondent herein as also one M/s. Reliance Industries Limited. It is therefore contended that in view of the said agreement having been entered on 15-4-2010 immediately subsequent to the loan being advanced, the banks had considered a further advance of Rs. 100 Crores to be sanctioned on 5-1-2011. It is the contention that though the respondent-Bank was not a party to the said agreement, there were certain understanding reached with the Bank. These were all aspects which were discussed among the parties and thereafter a decision had been taken in that regard. That apart the contentions with regard to the rate of interest has also been put forth by them in the written statement and while seeking leave to cross-examine by filing the application. 7. Learned Counsel for the respondent with reference to the reasoning adopted by the Tribunal while passing the order would in fact refer to the very agreement dated 15-4-2010 relied on by the petitioners to contend that the bank is not a party to the said agreement and the agreement also contains a clause that it will not bind any other party. 8. 8. Even if this aspect of the matter is kept in view keeping in view, the nature of contentions put forth and the decision in Delhi High Court Bar Association's case is to the effect that DRT can decide based on the affidavit and document on record. But in the present circumstance, the documents available alone would not be sufficient for the Tribunal to ultimately come to the conclusion. Keeping in view the nature of the contentions that has been put forth by the petitioners, certain understanding had been reached between the parties with regard to the additional loan being sanctioned and the circumstance in which the petitioner is claiming discharge of their guarantee in that regard. Therefore, in such circumstance, the contention as put forth is not borne out from the records and it becomes relevant for the purpose that all aspects which are likely to touch upon the matter will have to be elicited in the cross-examination. The nature of questions to be posed certainly cannot be disclosed in the application. 9. If in that light, the prayer as made in the application is taken into consideration, merely because the same would consume sometime of the Tribunal in deciding the case in itself could not be taken as reason to deny an opportunity which ultimately would be in the interest of justice. All parties would have to put forth all contentions and thereafter the Tribunal can take a decision in the matter. 10. In such circumstance, it would also be appropriate for the Tribunal to fix a time frame and see that the petitioner adhere to the time frame to complete the cross-examination failing which they would forfeit their right of cross-examination. Therefore in my opinion, in the present facts, as having noticed herein, it would be appropriate to provide an opportunity to the petitioners to cross-examine A.W. 1. The Tribunal may fix a date for the said purpose, regulate the cross-examination to be completed within the time frame to be provided by the Tribunal. It is once again made clear that if the petitioners do not avail the opportunity within the time frame provided, the Tribunal would be entitled to discharge the witness and the opportunity granted would be forfeited. 11. Accordingly, the order impugned dated 15-4-2015 is set aside. Consequentially, I.A. No. 267 is allowed. The Tribunal to act in the manner as indicated above. 11. Accordingly, the order impugned dated 15-4-2015 is set aside. Consequentially, I.A. No. 267 is allowed. The Tribunal to act in the manner as indicated above. Since it is submitted on behalf of the respondents that in view of the pendency of this petition, the matter has been adjourned to November 2015, to that extent keeping in view the date on which the A.W. 1 would be available for cross-examination, the second respondent may make appropriate application before the Tribunal seeking advancement or the case on prior intimation to the learned Counsel for the petitioner. On such date, the petitioner shall avail the opportunity to cross-examine. The petition is accordingly disposed of.