Geeta Advani vs Vijaya Bank And Ors.

Ranjit Singh, J

Grievance of the appellant raised before the Tribunal below is that the Registrar of the Tribunal could not direct him to file evidence by way of affidavit. The Counsel appearing before the Tribunal below oven wanted to have legal opinion on this issue. The Tribunal below has held that it is not the Registrar, who is giving directions to file evidence, but these are the directions issued by the Tribunal and the Registrar is only receiving the affidavit which he is authorized to receive such affidavits. As per the Tribunal below, the Registrar has only a responsibility to check whether the affidavit is in proper form or not and, thus, the Registrar is not doing any legal act. The next grievance raised by the appellant herein is in regard to the denial of his right to cross-examine the witness. The Tribunal below has directed the defendant to file her evidence by way of affidavit before the Registrar. The Counsel appearing for her moved an application for cross-examination of the witness before filing the evidence. The Tribunal below has referred to the scheme contained in Rule 12(6), which provides that the parties are to file their evidence first and then have to file an application seeking permission to cross-examine the witness. The Tribunal accordingly required the applicant to move this application seeking permission for cross-examination only after filing the evidence. In this background, the appellant was given last chance for filing evidence failing which the evidence was ordered to be closed. The appellant has accordingly approached this Tribunal against this order.

The Counsel for the appellant did not press his plea so far as requirement of filing the evidence by way of affidavit before the Registrar is concerned. The Counsel, however, has pressed his plea of right to cross-examine the witnesses of the applicant Bank before being asked or required to file her evidence. Plea of the Counsel is that right of defence is not simple right but a valuable one. If the defendant in a suit is asked to first file his evidence then to conduct the cross-examination of the witness(es) of the opposite side then the defence of the defendant is likely to be compromised which would also be in violation of the principles of natural justice. In support of his plea, the Counsel has placed before a judgment in case Ayaabkhan Noorkhan Pathan v. State of Maharashtra & Ors., VIII (2012) SLT 428 : AIR 2013 SC 58. The Counsel has referred to the following part of the judgment where the Court has observed:

"The aforesaid discussion makes it evident that, not only should be opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice."

As per the Counsel, an opportunity to cross-examine the witness is must and is essential to meet the requirement of principles of natural justice. In the absence of such opportunity, the Courts have held that the case has not been decided in accordance with law.

The Counsel would further refer to judgment noted above where it is held that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act. As observed by the Court, the affidavits are therefore not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act and the same can be used in "evidence" only if, for sufficient reasons, the Court passes an order under Order 19 of the Code of Civil Procedure. The Court has further observed that filing of an affidavit of one's own statement, in one's own favour cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. Referring to these observations, the Counsel would contend that requiring the parties to file affidavit would violate the law laid down by the Hon'ble Supreme Court.

I have considered the submissions so made by the Counsel. While relying on the judgment in the case of Ayaabkhan Noorkhan Pathan (supra), the Counsel perhaps is completely loosing right of the fact that somewhat different and special procedure is prescribed under the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 (for short, the RDDBFI Act) and Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act). Section 22 of the RDDBFI Act specifically provides that the Tribunal below and Appellate Tribunal shall not be bound by the procedure laid down by the Civil Procedure Code, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any Rules, the Tribunal and the Appellate Tribunal shall have the powers to regular their own procedure including the places at which they shall have their sittings. As per Section 22(2) of the RDDBFI Act, the Tribunal and the Appellate Tribunal while discharging their functions would have the same powers as are vested in a Civil Court under the Code of Civil Procedure, but only in respect of the following matters:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(h) any other matter which may be prescribed.

Thus, power to receive evidence by way of affidavit is specifically provided in this section. The procedure to be followed by the Tribunals is further regulated by the DRT (Procedure) Rules, 1993. Rule 12 of the said Rules relates to filing of reply and other documents by the defendants. Rule 12(6) clearly provides that the Tribunal may at any time for sufficient reason order that any particular fact or facts shall be proved by affidavit, or that the affidavit of any witness shall be read at the hearing, on such conditions as the Tribunal thinks reasonable. Proviso under the said rule states that after filing of the affidavits by the respective parties where it appears to be the Tribunal that either the applicant or the defendant desires the production of a witness for cross-examination and that such witness can be produced and it is necessary to do so, the Tribunal shall for sufficient reasons to be recorded, order the witness to be present for cross-examination, then, the affidavit shall not be taken into evidence and further that no oral evidence other than that given in this proviso will be permitted.

Rule 12(6) with the proviso reads as under:

The Tribunal may at any time for sufficient reason order that any particular fact or facts shall be proved by affidavit, or the affidavit of any witness shall be read at the hearing, on such conditions as the Tribunal thinks reasonable:

"Provided that after filing of the affidavits by the respective parties where it appears to the Tribunal that either the applicant or the defendant desires the production of a witness for cross-examination and that such witness can be produced and it is necessary to do so, the Tribunal shall for sufficient reasons to be recorded, order the witness to be present for cross-examination, and in the event of the witness not appearing for cross-examination, then, the affidavit shall not be taken into evidence and further that no oral evidence other than that given in this proviso will be permitted."

This proviso is complete answer to the submissions made by the Counsel for the appellant. The parties are first required to file their evidence by way of affidavit. Thereafter, the defendant or the applicant may desire production of a witness for cross-examination and such witness then can be asked to appear when the Tribunal finds for sufficient reasons to be recorded that such a witness would be needed for the purpose of cross-examination. The course adopted by the Tribunal, thus, is clearly in consonance with the special provisions enacted under the RDDBFI Act. The Hon'ble Supreme Court in Ayaabkhan Noorkhan Pathan's case (supra) was considering the case from the view of the provisions contained in the Civil Procedure Code and Evidence Act and it had no occasion to consider the special provisions made under the RDDBFI Act or SARFAESI Act.

In fact, the Hon'ble Supreme Court earlier had the occasion to consider the issue whether witness in such like cases instituted under the provisions of RDDBFI Act and SARFAESI Act can be subjected to cross-examination or not? In the case of Union of India and Another v. Delhi High Court Bar Association and Others, II (2002) BC 194 (SC) : II (2002) SLT 556 : 96 (2002) DLT 726 (SC) : (2002) 4 SCC 275, the Court has observed that the Debts Recovery Tribunals have to decide the cases on the basis of documents and affidavits filed before it. It is further observed that only in rare case when there exits good reason to hold that the affidavits would not be sufficient, bona fide need for oral examination of a witness as provided under the proviso to Sub-rule (6) may arise. The submission before the Hon'ble Court that whenever a party desires production of a witness for cross-examination then his evidence could not be taken by way of affidavit, but it would, be mandatory for the Tribunal to require production of witness, was not accepted as a correct view. The Hon'ble Court in this case has held as under:

"Rule 12 is not happily worded. The reason for establishing Banking Tribunals being to expedite the disposal of the claims by the Banks, Parliament thought it proper only to require the principles of natural justice to be the guiding factor for the Tribunals in deciding the applications, as is evident from Section 22 of the Act. While the Tribunal has, no doubt, been given the power of summoning and enforcing the attendance of any witness and examining him on oath, but the Act does not contain any provision which makes it mandatory for the witness to be examined, if such a witness could be produced. Rule 12(6) has to be read harmoniously with the other provisions of the Act and the Rules. Rule 12(7) gives the Tribunal the power to act upon the affidavit of the applicant where the defendant denies his liability to pay the claims. By virtue of Rule 12(6) the Tribunal has the power to continue any particular fact to be proved by the affidavit, or it may order that the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to Rule 12(6) would certainly apply only where the Tribunal chooses to issue a direction on its own, for any particular fact to be proved by the affidavit or the affidavit of a witness being read at the time. The said proviso refers to the desire of an application or a defendant for the production of a witness for cross-examination. In the setting in which the said proviso occurs, it would appear that once the parties have filed affidavits in support of their respective cases it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to the Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present for cross-examination and in the event of his not appearing the affidavit shall not be taken into evidence. When the High Courts and the Supreme Court in exercise of their jurisdiction under Article 226 and Article 32 respectively can decide the questions of fact as well as law merely on the basis of documents and affidavits filed before them ordinarily, there should be no reason as to why a Tribunal, likewise, should not be able to decide the case merely on the basis of documents and affidavits before it. It is common knowledge that hardly any transaction with the Bank would be oral and without proper documentation, whether in the form of letters or formal agreements. In such an event the bona fide need for the oral examination of a witness should rarely arise. There has to be a very good reason to hold that affidavits, in such a case, would not be sufficient."

It is important to note here that the Hon'ble High Court has observed in the setting in which the proviso to Rule 6 occurs, the desire for a witness to be cross-examined can legitimately arise only when the parties have filed their affidavits. It is also noticed that when the High Courts and the Supreme Court in exercise of their jurisdiction under Article 226 and Article 32 respectively can decide the question of fact as well as law merely on the basis of documents and affidavits filed before them ordinarily there should be no reason as to why the Tribunal, likewise, should not be able to decide the case merely on the basis of affidavits and documents before it. What weighed with the Court is the common knowledge that there would hardly be any transaction with the Bank which would be oral and without proper documentation. As per the Court, in such event bona fide need for oral examination of a witness should rarely arise. That being the position of law enunciated by the Hon'ble Supreme Court, the Counsel cannot validly urge before me that application for cross-examination has to be decided first before the appellant is required to file evidence on affidavit. If cannot further be urged that the evidence by way of affidavit is not permissible and it is no evidence in the eyes of law. Special procedure prescribed under the enactments has been upheld by the Hon'ble Supreme Court and, thus, pleas raised by the appellant are certainly without any merit. I am, therefore, not inclined to interfere in the impugned order and dismiss the appeal in limine.