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Judgment
S.N.H. Zaidi, J
This appeal has been directed against the order dated passed by the Presiding Officer of DRT-II, Delhi in O.A. No. 102 195, whereby three applications filed by the defendant/appellants have been dismissed. Necessary facts giving rise to this appeal, in brief, are that the 1st respondent bank has filed O.A. No. 1021/95 against the appellants and others for the recovery of certain amount wherein it has filed evidence by way of affidavit and documents in support of its case. The defendant/appellants filed applications I.A. 333/2012 for cross-examination of Mr. S.K. Singhvi qua his affidavit filed on behalf of the bank, I.A. No. 334/2012 for directing the bank to file complete revised statement of account inception of the account with rate of interest charged with reference to RBI notification and details of penal interest in the light of the judgment of the Supreme Court in Central Bank of India v. Ravindra & Ors., (2002) 1 SCC 367 and I.A. No. 345/2012 for directing the bank to produce all documents in its possession as detailed in paragraph 25 of the O.A. and for permission to cross-examination the witness qua those documents, The learned Tribunal below, after hearing the parties, dismissed those applications by the order impugned. This appeal has been filed against that order.
Mr. G.L. Rawal, learned Senior Advocate appearing for the appellants contended that the defendant/appellants were contesting the O.A. on various grounds, inter alia, that the bank, despite promise, had unilaterally' withdrawn the facilities and did not permit the borrower, appellant No. 1 company, to exhaust the sanctioned limit whereas on bank's assurances and promises it had entered into various ventures of import and export, specially with Nigerian parties, but since the bank failed to adhere to its assurances and promises the appellant company could not exhaust the sanctioned limit and suffered huge losses and thereby invoked the principle of promissory estoppel. He further contended that since the bank had also not filed the complete documents, therefore, an application (I.A. 333/2012) was filed by the defendant/appellants for directing the bank's witness to appear for cross-examination along with bank's record in order to find out the reasons for withdrawal of the facilities, but the learned Presiding Officer, without properly appreciating the ratio of the judgment of the Supreme Court in the case of Union of India v. Delhi High Court Bar Association & Ors., (2002) 4 SCC 275, dismissed that application. According to him, at the most it could be said, on the basis of the aid judgment, that to cross-examine a witness is not an absolute right but the Hon'ble Apex Court had observed that it depended on the facts of each case. He also contended that the bank could not refuse to permit the appellant company to exhaust the sanctioned limit on the principle of promissory estoppel and it could only be proved by confronting the bank's witness. His further contention was that refusal to permit the cross-examination without any cogent reason had caused great prejudice to the rights of the appellants and was violative of natural justice. He pointed out that the cross-examination was also required qua the entry regarding the alleged payment of Rs. 25,000/- on 24.12.1992, which was a' bogus entry and was made only to extend the period of limitation. Mr. Rawal placed reliance on the following judicial authorities in support of his contentions:
Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd., AIR 1983 S.C. 848,
Union of India v. T.R. Varma, AIR 1957 S.C. 882,
Shalimar Rubber Industries v. Collector of Central Excise, Cochin, 2002 (146) ELT 248 (S.C.),
M/s. Kalra Glue Factory v. Sales Tax Tribunal & Ors., JT 1987 (1) S.C. 713,
M/s. Allied Chemical Laboratories Jagatpur, Cuttack v. Presiding Officer, Debts Recovery Tribunal, Cuttack & Anr., I (2005) BC 258 (DB) (Orissa High Court),
Kapil Kathpalia v. The Industrial Finance Corporation of India (IFCI) & Ors., IV (2004) BC 56 (DRAT, Delhi), and
P.C.C. Construction Company & Anr. v. Oriental Bank of Commerce & Anr., I (2007) BC 18 (DRAT, All).
Mr. A.D. Mahendroo, learned counsel for the bank, on the other hand, contended that the applications were not filed by the borrower company, the appellant No. 1, and all the applications were filed by one of the guarantors, appellant No. 2 herein, in his personal capacity and as such the borrower company had no locus standi to file this appeal against an order which was passed on the applications filed by appellant No. 2. He further contended that the bank had never made any promise with the borrower to permit it to exhaust the sanctioned limit and, on the contrary, it was agreed as per terms of the loan agreement that the bank would be at liberty to stop at any time, without notice and without assigning any reason, negotiations, purchase or making advance against bills in the course of collection and that on demand by the bank the borrower would pay the ultimate balance due to the bank. He also contended that the application for cross examination was filed, at a time when the matter was ripe for final arguments, only to protract the final disposal of the O.A. which was pending for the last 17 years. Mr. Mahendroo also contended that the Tribunal below while disposing of the application had considered all the aspects of the matter in detail and had also properly appreciated the judgment of the Apex Court in Union of India v. Delhi High Court: Bar Association & Ors., (supra) in its right perspective. According to him the defendant/appellants were repeatedly stressing on the principle of promissory estoppel, which is without any basis as the bank had never made any promise as alleged. He pointed out to the copy of the "Agreement Re: Land/Foreign Bill Purchased and Advances against Bills in Course of Collection" (Annexure-A).
A perusal of application for cross-examination (I.A. 333/2012), Ann. A-4, would show that it was signed by Mr. Raj Kumar Jain, the appellant No. 2, as the Director and for self. This circumstance negates the respondent's contention that the application was filed by appellant No. 2 only in his personal capacity and shows that it was filed on behalf of the appellant company as its Director as well. I am, however, of the view that in view of the facts and circumstances pointed out by Mr. Rawal, mere invoking the plea of promissory estoppel cannot be accepted s a sufficient ground to permit the cross examination of the bank's witness. The appellants' counsel had not pointed out to any document which could show that the bank had agreed/promised to permit the borrower company any to exhaust the sanctioned limit. The terms and conditions of a loan agreement, which was executed by the parties, can only be proved by the agreement itself and no amount of oral evidence can prove those terms. The witness of the bank had given his affidavit on the basis of the records qua the loan in question maintained by the bank. He is not expected to say anything in respect thereof on the basis of his personal knowledge. The judgment of Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd. (supra), which is on the principle of promissory estoppel, does not lay down any principle of law on the controversy of cross-examination of the witness involved in this appeal.
The Hon'ble Supreme Court in paragraph 10 of the judgment in Union of India v. T.R. Varma (supra), as referred to by Mr. Rawal, has observed that:
(10) Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and If they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtain in a Court of Law.
Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.
The aforesaid principle of law does not lay down that the party shall be given an opportunity to cross examine the witness of the opposite party irrespective of the fact whether the circumstances of the case warrant such examination or not. The case of the respondent bank in its O.A. is based on documentary evidence. The defendant/appellants have neither claimed any set off nor made any counter claim. In such a circumstance, mere taking a plea of promissory estoppels by them cannot be held to be sufficient to summon the bank's witness for cross-examination.
The learned Tribunal below, while considering the judgments rendered in the cases of M/s. Kalra Glue Factory v. Sales Tax Tribunal & Ors. (supra), M/s. Allied Chemical Laboratories Jagatpur, Cuttack v. Presiding Officer, Debts Recovery Tribunal, Cuttack & Anr. (supra) and P.C.C. Construction Company & Anr. v. Oriental Bank of Commerce & Anr. (supra), which have also been cited by Mr. Rawal before this Tribunal, has rightly observed that the said judgments are not applicable to the facts of the case as those cases were related to penal actions against the aggrieved parties. The learned Tribunal below has relied upon the following observation of the Supreme Court made in Union of India v. Delhi High Court Bar Association & Ors. (supra) while deciding that application that:
The proviso to R. 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 affidavit of a witness being read at hearing. The said proviso refers to the desire of an applicant or defendant for the production of a witness for cross examination. In the setting in which the said proviso occurs, it would appear to us 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, then the affidavit shall not be taken into evidence. When the High Courts and Supreme Court in exercise of their jurisdiction under Art. 226 and Art. 32 can decide questions of fact as well as law merely on the basis of documents and affidavit filed before it, 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.
The above observation has been made qua the proviso to rule 12(6) of the DRT (Procedure) Rules, 1993, which provides for cross-examination of the witness by the other party. I fully agree with the view of the Tribunal below that in the light of the aforesaid dictum of law no sufficient ground was made out to permit the cross-examination of the witness as there was no fact which was required to be elicited in cross-examination or which was within the exclusive knowledge of the witness and the materials pointed out in the application were not sufficient to direct him to appear for cross-examination.
The facts of the case of Kapil Kathpalia v. IFCI (supra) are also different with the present case and since the question of cross-examination of a witness depends upon the facts and circumstances of each case, therefore, the view taken by this Tribunal in the said case, allowing the opportunity of cross-examination of the respondent's witness; cannot be held to be a guiding factor for this case.
This circumstance can also not be ignored that the said application was filed at a very belated stage when the OA, which was pending disposal for the last about 17 years, was ripe for final arguments. I am, therefore, of the considered view that the order impugned, declining the summoning of the witness for cross-examination, does not suffer with any infirmity or illegality and as such this appeal qua the order passed on I.A. No. 333/2012 has no force and is liable to be dismissed.
So far as the appeal qua the order on the application (I.A. No. 334/2012) filed by the appellant No. 2 for directing the bank to file the complete revised statement of account since inception of loan account of the borrower company in the light of the observation of the Apex Court in Central Bank of India v. Ravindra & Ors. (supra) is concerned the contention of Mr. Rawal is that the learned Presiding officer did not properly appreciate the said judgment and had failed to consider that it was the case of the bank that it had started banking transactions with the appellant company since 1984 and despite that it did not supply the copy of the entire statements of accounts from its inception. He also pointed out that the defendants/appellants had also denied the correctness of tile entries made in the statement of account in the written statement.
Mr. Mahendroo.: on the other hand, reiterated that the defendant/appellant No. 2 had made the said demand for the first time after about 17 years of the pendency of O.A. at the time when the matter was ripe for final arguments and that circumstance clearly showed that the appellants' only intention was to protracting the disposal of the O.A. He pointed out that the applicant of I.A. No. 334/2012, being a guarantor had agreed in the deed of guarantee executed by him that the statement of account maintained by the bank would be conclusive evidence as against him and it would not be questioned by him and since his liability was based upon the said agreement, he could not agitate the same. He also pointed out that a revised statement of account was filed with the DRT on 1.5.2012 alongwith the affidavit of the Chief Manager of the respondent bank.
A perusal of the order impugned would show that it was brought to the notice of the Tribunal below that detailed statement of accounts had already been filed and was available on record. The learned Tribunal has also observed that the bank had filed the statement of account, marked as AW 1/69 to AW 1/72 and the bank's witness AW-1 had elaborately stated in his evidence from paragraphs 52 to 64 about the statement of account. Considering these circumstances, in my opinion, since the revised statement of accounts had already been filed by the bank prior to the making of the order impugned, therefore, there was no occasion for the DRT to direct the bank to file it again and as such the order impugned is not suffering with any infirmity and the appeal against it is also devoid of any force and is liable to be dismissed.
The defendant/appellants, through application I.A. 345/2012, had sought the production of documents on the basis of the averments made in paragraph 25 of the O.A., which reads as under:--
(25). There is voluminous correspondence between parties in respect of said Nigerian Bills which the plaintiff is not reproducing or referring to in the plaint for brevity sake and the plaintiff bank crave leave of this Hon'ble Court to rely upon and refer to all the relevant correspondence that ensued between the plaintiff and the defendants in respect of the said Nigerian Bills
In my opinion, looking to the above averments, the learned Tribunal below was right in observing that though the bank had only craved leave to rely upon and refer to the relevant correspondence, but since the bank had not relied upon those documents, therefore, the said documents pertaining to the correspondence were not required to be filed. I am also in agreement with the observation of the learned Presiding Officer that mere pleadings of the said fact in the O.A. could not be a ground for the appellants to ask for the production of those documents. I fail to see any purpose for the production of those documents and merely on the ground that the respondent bank had stated in its O.A that it had in its possession voluminous correspondence qua the said Nigerian bills, the same cannot be held to be relevant for the adjudication of the O.A. The order impugned qua I.A. No. 345/12 is also not suffering with any infirmity or illegality and as such the appeal filed against it has no legs to stand and deserves dismissal.
In view of the discussions made above, this appeal has no substance and is liable to be dismissed. The appeal is accordingly dismissed without there being any order as to cost. Copy of this order be, furnished to the parties as per law and be also sent to the Tribunal below.