Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 483 (KAR)

Anjana Agencies, Partnership Firm v. Canara Bank

2018-04-05

R.S.CHAUHAN

body2018
ORDER : 1. The petitioners are aggrieved by the order dated 13.11.2017 passed by the Debt Recovery Tribunal-II, Karnataka, Bengaluru, (hereinafter referred to as ‘the Tribunal’ for short), whereby the learned Tribunal has allowed the application filed by the respondent-Bank, namely, the Canara Bank, and has directed the issuance of recovery certificate as sought by the respondent-Bank. 2. Briefly, the facts of the case are that the Canara Bank had instituted proceedings, namely, O.A.No.172/2011 (subsequently renumbered as T.A. No.520/2017), before the learned Tribunal for recovery of debts, dues against the petitioners. The application was filed against the petitioner Nos.2 and 3 as they happened to be the guarantors for the principal debtor, namely, petitioner No.1. Since, the principal debtor had defaulted in repayment of the loan taken by it from the Bank, the petitioners were added as defendants. Petitioner Nos.1 and 2 appeared before the learned Tribunal and filed a counterclaim against the Bank. According to the petitioners ever-since 16.02.2017, the case was posted for cross-examination of PW1, the case was adjourned till 16.03.2017. From 16.03.2017 till 15.09.2017, the case was adjourned repeatedly for the evidence of the Bank. On 12.09.2017, the learned counsel for the Bank served an evidence affidavit with some documents along with the covering letter stating that they will file a fresh affidavit of the witness in the new format on 15.09.2017. However, on 15.09.2017, since the learned counsel for the petitioners was held up at the High Court, one of his colleagues appeared and prayed for an adjournment for cross-examination of AW1. However, instead of conceding to the prayer made by the petitioners’ counsel, the learned Tribunal rejected the prayer, and noted that the cross-examination of AW1 as ‘NIL’, and listed the case for arguments on 26.09.2017. 3. On 26.09.2017, the petitioners filed three applications for recalling the order dated 15.09.2017, for permitting the cross-examination of PW1, and for reopening the case in order to contest the same, and for permitting the petitioners to submit their evidence. The three applications were allowed, however, with a cost of Rs. 7,500/- and the case was posted on 08.11.2017 for cross-examination of PW1. 4. On 08.11.2017, the petitioners claimed, that their counsel were ready both for cross-examining the PW1, and for paying the cost. However, to their shock, they discovered that the conditional order dated 26.09.2017, had directed the petitioners to pay the cost on or before 07.11.2017. 7,500/- and the case was posted on 08.11.2017 for cross-examination of PW1. 4. On 08.11.2017, the petitioners claimed, that their counsel were ready both for cross-examining the PW1, and for paying the cost. However, to their shock, they discovered that the conditional order dated 26.09.2017, had directed the petitioners to pay the cost on or before 07.11.2017. Thus, when the cost was tendered before the learned Tribunal, on 08.11.2017, the learned Tribunal refused to accept the cost. In turn, the learned Tribunal directed that the case should be posted for 13.11.2017. Since, the learned Tribunal refused to accept the cost, on 08.11.2017, the petitioners claimed that they deposited the cost amount to the credit of the Bank on 08.11.2017, itself. The petitioners applied for receiving the certified copy of the order passed by the learned Tribunal. Thereafter, the petitioners challenged the order dated 08.11.2017 by filing the writ petition, namely, W.P.No.51372/2017 before this Court. 5. On 09.11.2017, the petitioners again filed an application for recalling the order dated 08.11.2017 and for reopening the case for cross-examination of PW1. On 13.11.2017, the petitioners again sought an adjournment clearly indicating to the learned Tribunal that they had challenged the order dated 08.11.2017, before this Court. However, not withstanding the prayers of the petitioners, by impugned order dated 13.11.2017, the learned Tribunal has allowed the application filed by the respondent-Bank for recovery of the amount from the petitioners. Hence, the petitioners are before this Court. 6. Since the petitioners are challenging an order passed by the learned Tribunal, this court has raised a pointed query to the learned counsel for the petitioners as to why an appeal has not been filed against the impugned order before the DRAT under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘the Act’ for short). 7. The learned counsel for the petitioners submits that since the petitioners had deposited the cost on 08.11.2017, i.e., just one day after the last date for depositing the cost, the learned Tribunal was not justified in denying the petitioners a chance to cross-examine the PW1. Moreover, according to the learned counsel, the remedy of filing an appeal before the DRAT is not an efficacious alternative remedy. Hence, the petitioners are justified in approaching this Court under its writ jurisdiction. 8. Heard the learned counsel for the petitioners. 9. Moreover, according to the learned counsel, the remedy of filing an appeal before the DRAT is not an efficacious alternative remedy. Hence, the petitioners are justified in approaching this Court under its writ jurisdiction. 8. Heard the learned counsel for the petitioners. 9. It is, indeed, trite to state that vast power of the writ may be invoked, but there are certain self-imposed limitation on the said power. One of the self-imposed limitations is that if an alternative remedy is available under the law, the litigant is expected to first pursue the alternative remedy, and only thereafter approach this Court under the writ jurisdiction. Section 20 of the Act is categorical, wherein, it prescribes an efficacious alternative remedy to approach the DRAT against any order passed by the learned Tribunal. 10. Merely because the right to cross-examine the PW1 has been denied by the learned Tribunal, the petitioners are free to raise the plea that the right to cross-examine has been denied before the learned DRAT. 11. Since, the alternative remedy has been provided by law, the learned counsel for the petitioners is not justified for claiming that it is not an efficacious alternative remedy. 12. Therefore, this Court sees no reason for invoking the writ jurisdiction in entertaining these petitions against the order passed by the learned Tribunal. For the reasons stated above, these writ petitions are, hereby, dismissed.