Fabrimetals vs United Bank of India

Bhaskar Bhattacharya, J.—This revisional application is at the instance of the defendant and is directed against Order No. 21 dated 30-1-1997, passed by the Debt Recovery Tribunal (DRT) thereby rejecting an application for correcting the deposition of DW-1.

There is no dispute that in the proceedings before the DRT, the defendant Nos. 1 to 5 have disputed the claim of the Bank by filing written statement as well as affidavit on evidence. Defendant No. 5 deposed as DW-1 on behalf of the defendant Nos. 1 to 5.

It appears from the record that in answer to the questions put to the said witness, the learned Trial Judge, inter alia, recorded the following three sentences :

"I cannot say if the claim of the bank is correct or not. I cannot say off hand the exact amount of debt due to the bank from the Respondent No. 1. We have paid nothing against the claim of the bank."

Subsequently, the petitioner filed an application alleging that the evidence recorded by the Tribunal below did not reflect the actual answers given by the deponent.

In paragraph 5 of the said application it is stated that following the usual practice and procedure of the said Tribunal, questions put by the learned counsel on either side, either in examination-in-chief or in cross-examination, were not recorded and the answers of the petitioner were not recorded by the concerned stenographer of the learned Presiding Officer but only sum and substance of the answer of the deponent, as dictated by the learned Presiding Officer, went down in the deposition. In paragraph 6 of the application, the petitioner has specifically alleged that in course of cross-examination by the learned counsel for the Bank, a question was put to him by referring to paragraph 11 of the plaint and the statement of account annexed to the evidence on affidavit of the plaintiff as to whether the petitioner admitted the correctness of the claim of the petitioner, as mentioned in the said paragraph and the statement of account. The petitioner answered the question in the negative when the learned Presiding Officer asked the petitioner a number of questions to the effect as to what according to the petitioner was the real amount of due by the defendant to the plaintiff Bank. In answer to such questions, the reply of the petitioner was that he was not in a position to say at that time as to what was the actual amount due.

It is further alleged that after the conclusion of evidence, officers of the Tribunal instructed the petitioner to wait till the depositions were typed out for signing on the same. Shortly thereafter depositions were typed out and the petitioner was asked by the concerned stenographer to read the deposition and sign it. After going through the deposition, the petitioner was surprised to find that it has been wrongly recorded that the petitioner did not know whether the claim of the plaintiff Bank was correct or not. According to the petitioner, the said recording was absolutely incorrect.

It appears from the record that no written objection was given to the aforesaid application filed by the petitioner. But at the time of hearing of the application, the application was orally opposed by the Bank.

By the order impugned, in this application, the learned Trial Judge has rejected the said application with cost.

Being dissatisfied, the petitioner has come up with the instant revisional application.

After hearing the learned counsel for the parties and after going through the materials on record, I find that the Tribunal below has merely observed that the witness was examined on 16-1-1997 and the learned lawyer appearing on behalf of the Bank submitted that such statement was made in cross-examination and as such, he found no reason to disagree with the learned lawyer for the Bank. The Tribunal has further given a reason in support of the order that the next line of deposition will justify the statement made in the earlier sentences.

In my view, when specific allegation has been made in the application that the Tribunal did not record the exact statements uttered by the witnesses but merely recorded the sum and substance of the deposition and no written objection was filed by the Bank controverting such statement, it was the duty of the Tribunal to specifically state that the aforesaid allegation was wrong.

Mr. Banerjee, appearing on behalf of the petitioner, did not dispute the fact that the witness said that he could not say what was the exact amount due and payable to the Bank from the respondent No. 1, as recorded in the second sentence, as quoted above. But his grievance is that his client never uttered the first sentence i. e. ''I cannot say if the claim of the bank is correct or not''. In my view, merely because from the next two sentences it may be inferred that the said witness was not aware of the exact amount due and payable to the bank, that fact does not mean that the first sentence should also be recorded although the petitioner really denied such suggestion. Therefore, I delete the first sentence of the aforesaid three sentences, as it was not the real answer given by the DW-1; the other two sentences will, however, remain.

I, thus, allow the application thereby deleting the aforesaid sentence from the deposition of the DW-1 as it is established that that very sentence was not uttered by the DW-1. However, the other part of the deposition will remain as it is. The Bank, if so desires, may further cross-examine the DW-1 in view of deletion of the aforesaid sentence from the deposition.

With the above observation, the revisional application is allowed. I make it clear that I have not gone into the merit of the claim and it is for the Tribunal to decide whether the claim of the Bank has been established.