A.S. Duggal vs Punjab & Sind Bank And Ors.

S.N.H. Zaidi, J

As per affidavit of service, notices were sent to the respondents by Registered Post A.D. as well as through Courier and efforts were also made to serve the notices personally. Notices to respondent No. 4 were sent through Courier on 5.3.2013 and by Registered Post oh 6.3.2013., Mr. Dhupar submits that the respondent No. 4 had also not appeared before the Tribunal below and the O.A is proceeding ex-parte, against him. He further submits that no relief is being sought against him in this appeal and notice to him be dispensed with. In view of this further service of notice upon respondent No. 4 is dispensed with. Heard parties' counsel on admission. The instant appeal has been directed against the order dated 27.11.2012 passed on I.A. Nos. 297/2012 and 513/2012 filed in O.A No. 74/2005, whereby the request of the defendant/appellant for summoning the banks' witness for cross-examination has been declined and the applications have been dismissed.

Mr. Dhupar submits that the learned Tribunal while declining the request of the cross-examination of the bank's witness, has failed to properly appreciate the relevant circumstances and this appeal has been preferred mainly on three grounds, namely;

That despite the fact that the account in question was classified as NPA in 1990, the bank did not take any action for the recovery of its dues for 15 years and filed the O.A. only in 2005 and during this period the principal outstanding amount of Rs. 17 lacs had converted into Rs. 2.5 crores due to the accrual of interest, and the defendant/appellant wanted to ask the banks' witness as to why the bank did not take any step for the recovery of its dues for such a long period and the questions related thereto,

That in para 5 of his affidavit the bank's witness Mr. R.K. Tyagi has admitted that on the balance and security confirmation letter dated 31.7.2002 the words "plus MI" were added by his senior officer Shri Diwakar, which prima facie showed that there had been interpolation in the said document as the defendant/appellant, in para 9 of his written statement, has specifically said that when he had signed that document only the figure of "Rs. 21,41,200/51" was written thereon and the defendant/appellant wanted to ask the banks' witness whether such documents were sent generally for checking to the senior officer or it was only in respect of the appellant's matter that the document was sent and the senior officer had added the words "plus M.I." In that document as the contention of the appellant was that the said document was taken on the pretext of facilitating the settlement, as at the relevant time the matter was settled for Rs. 21 lacs and the O.A. was time-barred in any event and the alleged acknowledgement dated 31.7.2002 could not extend the limitation, and

That there had been a concluded settlement in Rs. 21 lacs, which was to be paid within the agreed time schedule but the defendant/appellant could not pay the entire settled amount within that period and asked for the extension of time and the bank despite refusing the extension of time had accepted the payments made by the defendant/appellant, which showed that the bank had agreed to extend the period of payment and the banks; witness was required to be cross-examined in that regard.

The contention of Mr. Dhupar is that the Tribunal below has not properly considered the circumstances of the case and dismissed the applications by giving its finding qua those pleas, which would be prejudicial to the interest of the defendant/appellant as the O.A. is yet to be adjudicated upon, wherein those pleas are to be considered.

Mr. Dhupar further contends that the ratio of the judgment of the Supreme Court in Union of India & Anr. v. Delhi High Court Bar Association & Ors. (2002) 4 SCC 275], on the question of cross-examination of the witness with regard to the expression "necessary to do so" in the proviso to rule 12(6) of the DRT (Procedure) Rules, 1993 has been interpreted by the Bombay High Court in Sonu Textiles v. Punjab National Bank, 2008 (1) DRTC 576 and it has been held that the word "necessary" should be understood and construed to suitably conclude the proceedings effectively arid to meet the ends of justice.

Mr. Rajinder Wali, on the other hand, submits that the Tribunal below has considered all the points raised by the defendant/appellant and has given its findings on each point. He further submits that the balance and security confirmation letter dated 31.7.2002 was duly filled in before it was signed by the defendant/appellant and it had the reference of the earlier balance confirmation and revival letters dated 5.2.1997 and 8.9.1999 and as such it is incorrect to say that the appellant had signed that document only with the figure of Rs. '21,41,200/51' on it as the settlement was arrived at Rs. 21 lacs. He also submits that the settlement had already failed when the appellant did not deposit the settlement amount within the given time schedule and the further extension of time was declined by the bank. According to him, all the pleas, including the limitation or interpolation; can be argued at the time of final disposal of the O.A. on the basis of the documents and evidence on record, which does not warrant any cross-examination of the banks' witness.

I have considered the submissions of the parties' counsel and keeping in view the facts and circumstances of the case as pointed out by them, I am of the view that this case does not fall within the purview of the proviso to rule 12(6) of the DRT (Procedure) Rules as the circumstances of the case do not warrant the production of the banks' witness necessary for his cross-examination. The points raised by Mr. Dhupar in this appeal can very well be raised by the defendant/appellant before the Tribunal below at the time of the final disposal of the O.A and no cross-examination of the banks' witness appears; necessary qua them. I refrain myself from considering those points and expressing any opinion in respect of those points as it may prejudice the interest of the parties in the adjudication of the pending O.A. by the Tribunal below.

The issues as to why the bank did not proceed to recover its outstanding amount after the classification of the account as NPA in the year 1990 and allowed the interest to swell for 15 years and whether or not the balance and security confirmation letter dated 31.7.2002, was executed as alleged by the respective parties, can be considered by the Tribunal below while deciding the O.A. and the production of the banks' witness cannot be of any help to those issues.

The apprehension of Mr. Dhupar that the Tribunal below would be influenced by its views expressed in the order impugned qua the points raised before it for the production of the banks' witness while disposing of the O.A. may be taken care of by directing the Tribunal below to dispose of the O.A. without being influenced by any of its earlier views expressed in the order impugned. In view of above, I am of the considered view that the order impugned does not suffer with any infirmity or illegality and as such it does not require any interference of this Tribunal and this appeal is liable to be dismissed. The appeal is accordingly dismissed with the direction that the Tribunal below shall dispose of the O.A. with open mind and without being influenced with any view taken by it in the order impugned.