Neuropsychiatry and Critical Care Hospital Private Limited v. Authorised Officer, Bank of India
2016-01-28
RAVI V.MALIMATH, SUBHRO KAMAL MUKHERJEE
body2016
DigiLaw.ai
ORDER : Subhro Kamal Mukherjee, J. 1. This is an application under Articles 226 and 227 of the Constitution of India, challenging the judgment and order dated June 3, 2015, passed by the Debt Recovery Appellate Tribunal at Chennai. By the order impugned, the learned Judge rejected an application for reception of additional evidence on two-fold grounds. 2. The application was captioned under Section 22(2)(h) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the Act of 1993'). The learned Judge observed that since the appeal was under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and not under the Act of 1993, the petition filed under the provisions of the Act of 1993, could not be maintained. 3. It seems that the attention of the learned Judge was not drawn to the settled law that wrong mentioning of the provision or not mentioning the provision is not material, if the litigant is otherwise entitled to a relief. Merely because he has mentioned the wrong caption in the application, it cannot be a ground for rejection of the application. It cannot take away the jurisdiction of a Court if it otherwise vested in it in law. The only consideration is whether the Court has the source to exercise such power or not. 4. In T. Nagappa v Y.R. Muralidhar, AIR 2008 SC 2010 : (2008)2 SCC (Cri.) 677 : (2008) 5 SCC 633 , the issue was that a complaint was filed by the respondent against the appellant under Section 138 of the Negotiable Instruments Act, 1881. The appellant filed an application under Section 243 of the Code of Criminal Procedure, 1973, but wrongly captioned the application as one under Section 293 of the said Code, for referring the Cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signature. The learned Magistrate dismissed the said application. A revisional application in the High Court, also, failed. The Supreme Court of India, while allowing the appeal, observed that it has been now well-settled principle of law that non-mentioning or wrong mentioning of the provisions of law would not be of any relevance if the Court had the requisite jurisdiction to pass an order. 5.
A revisional application in the High Court, also, failed. The Supreme Court of India, while allowing the appeal, observed that it has been now well-settled principle of law that non-mentioning or wrong mentioning of the provisions of law would not be of any relevance if the Court had the requisite jurisdiction to pass an order. 5. In Coal India Limited and Another v Ujjal Transport Agency and Others, AIR 2011 SC 503 : (2011) 1 SCC 117 , the Supreme Court of India holds that filing of an application for condonation under a wrong provision of law will not vitiate the application. 6. Secondly, the learned Judge rejected the application for reception of additional evidence on the ground that he could not find as to why the document could not be filed before the Debt Recovery Tribunal. 7. The provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908, was incorporated to enable a party to file documents before the appellate-forum, if the requirements of various sub-rules are satisfied. However, the essential requirement is that of the requirement of the Court. 8. The Supreme Court of India in the case of K. Venkataramiah v A. Seetharama Reddy and Others, AIR 1963 SC 1526 : (1964)2 SCR 35 , observes that the requirement is the requirement of the Court. The Appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment", but, also, for "any other substantial cause". There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something, which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause". That such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. Admission of additional evidence before examination of evidence on record is not justified. 9.
That such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. Admission of additional evidence before examination of evidence on record is not justified. 9. The appropriate stage to pass order, if any, under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, is the time for final hearing of the appeal, when the Appellate Court is in a position to scrutinize and appreciate the evidence on record. 10. We are of the opinion that the learned Judge acted illegally in deciding to consider the application for reception of additional evidence separately and not at the time of hearing of the appeal on merits so as to find out whether the document or evidence sought to be adduced have any relevance or bearing in the issues involved. Thus, the order impugned is set aside and we direct the Appellate Tribunal to consider the application for reception of additional evidence along with the appeal. The writ petition is, therefore, allowed. The learned Judge is directed to dispose of the appeal as expeditiously as possible. There will be no order as to costs.