Karun Raj Narang vs ICICI Bank Ltd. And Ors.

S.N.H. Zaidi, J

The instant appeal has been filed against the order dated 14.9.2011 passed by the learned Presiding Officer of DRT-1, Delhi in O.A. 248/99, dismissing I.A. No. 298/2011 filed by the appellant for recalling the order dated 6.6.2011, and for listing the matter for cross-examination of Ms. Karobi Acharjee. I have heard Mr. Shailen Bhatia, learned Counsel for the appellant and Mr. Noel Cherobin for respondents (a) to (d), and perused the record.

The relevant facts giving rise to this appeal, in brief, are that a consortium of Banks [respondents (a) to (d)] had filed O.A. No. 248/99 under Section 19 of the RDDB & FI Act against proforma respondent (e) (the Company in liquidation) and the appellant, being the guarantor, for the recovery of the outstanding dues against the proforma respondent (e). During the hearing of the O.A., parties led their evidence through affidavits, The Hon'ble Division Bench of the Delhi High Court, vide order dated 8.12.2010, passed in WP(C) No. 8042/2010, directed the DRT to record the cross-examination of the witnesses of the applicants/ respondents, including that of Ms. Karobi Acharjee, Chief Manager of ICICI Bank Ltd., preferably within two months, which was further extended by three months vide order dated 25.2.2011 by the Hon'ble High Court passed in CM. No. 2261/2011 filed in the said Writ Petition.

This Tribunal, vide order dated 24.5.2011 made in Appeal No. 239/2011, passed the following order:-

Counsel for the appellant wants to cross-examine Ms. Karobi Acharjee on the point of valuation report, who has already been cross-examined on 21.4.2011. Previously, the valuation report was produced at a late stage before the Court. The learned Trial Court vide its order dated 26.11.2010 permitted the applicant to file the said report subject to payment of Rs. 10,000/- as costs. The said costs stand deposited. However, the learned Trial Court did not allow the applicant to cross-examine the witness on this point.

I have heard the Counsel for the parties. In the interest of justice, I allow the request made by the appellant and permission to cross-examine the witness on this ground is also granted. The witness be produced on 30.5.2011 for cross-examination as agreed.

(Annexure-S)

In pursuance of the aforesaid order, the matter was listed before the DRT on 30.5.2011. However, on that date, the learned Presiding officer was on leave and the matter was posted for 6.6.2011. On 6.6.2011, though the Counsel for the applicants/respondents was present along with Ms. Acharjee, but the Counsel for defendant/appellant was not available and was out of station. A proxy Counsel, however, appeared for the defendant/appellant and sought for the adjournment. The learned DRT, however, observing that it was a time-bound case, which was fixed for cross-examination of Banks' witness on the consent of both the Counsel, closed the cross-examination of the witness and discharged her and listed the matter for final arguments. Defendant/appellant, thereafter, moved an application (I.A. No. 298/2011) for recalling the aforesaid order dated 6.6.2011 and also for fixing the matter again for cross-examination of the said witness. The learned DRT dismissed that application by the impugned order. Hence, this appeal.

Mr. Bhatia has submitted that during the course of cross-examination of Ms. Acharjee, she was shown the valuation report, which was objected to by the learned Counsel for the Bank on the ground that the said report was filed along with I.A. No. 978 by the defendant, and it was neither referred to in the O.A. nor in the affidavit of the witness. The objection was allowed and as such the witness could not be examined qua that report. Against the order of allowing the objection, the defendant had filed an appeal (Appeal No. 239/2011), which was disposed of by this Tribunal on 24.5.2011 and the defendant/appellant was permitted to cross-examine the witness on that valuation report, fixing 30.5.2011 for cross-examination. But, since on that date the Presiding Officer was on leave, therefore, the matter was posted for 6.6.2011. However, on that date the Counsel for the defendant/ appellant was availing of summer vacations and could not appear to cross-examine the witness. Mr. Bhatia conceded that it was his fault that he could not appear before the Tribunal on that date, as he was out of town.

Mr. Cherobin, learned Counsel for the applicants/ respondents has raised a legal plea contending that the instant appeal has been filed against the order dated 14,9.2011 by which the learned DRT had declined to recall/review its earlier order dated 6.6.2011 and rejected the application against which no appeal lies. In support of his contention, he has relied upon the judgment of this Tribunal in Shankuntala Bhargava and Anr. v. State Bank of India and Ors., : IV (2008) BC 56 (DRAT). The said case relates to an O.A. filed for the recovery of Rs. 64 lakh and odd wherein the defendants did not file written statement despite taking several opportunities and the costs of Rs. 5,000/- imposed on them was also not paid and thus their right to file written statement was closed. Thereafter, the defendants filed an application purported to be under Rule 5A (relating to review) of the DRT (Procedure) Rules, 1993, for recall of the orders of imposition of costs as well as of closing the right of filing the written statement. It was rejected by the DRT against which an appeal was preferred before this Tribunal. My learned predecessor, holding that no appeal lies against the rejection of a review application, dismissed the appeal.

I have given my thoughtful consideration to the respective submissions of the learned Counsel for the parties. As the application filed by the defendant/ appellant for recalling the order dated 6.6.2011 was not a review application in its strict sense and it was filed for the recall of the order whereby cross-examination of the witness was closed and the facts and circumstances of the aforesaid case cited by Mr. Cherobin were entirely different, therefore, the view taken by my learned predecessor does not help the respondents. Moreover, the cardinal principle of justice is that a party to a case should not be made to suffer for the acts or omission of his Counsel. It is not disputed that on 6.6.2011 when the matter was fixed for cross-examination of the witness, a proxy Counsel on behalf of the defendant/appellant had appeared and informed the Tribunal about the absence of the main Counsel and had prayed for adjournment.

In view of above, I am inclined to grant an opportunity to the defendant/ appellant to cross-examine Ms. Karobi Acharjee on the valuation report, subject to payment of Rs. 5,000/- as costs to the applicants/respondents. The learned DRT-I, Delhi is directed to allow the-defendant/appellant to cross-examine the said witness, for which 19.12.2011 is being fixed and both the parties are directed to appear before the learned DRT on that date. It is expected that the parties shall not seek any adjournment on that date.

With the above observations/directions, the appeal is disposed of. Copy of this order be furnished to the parties as per law and one copy be also sent to the learned DRT forthwith.