Kripa Chemicals Ltd. And Others vs Deutsche Bank Ag And Others

Dr. Pratibha Upasani, J

This Misc. Appeal is filed by the appellants/original defendants, being aggrieved by the order dated 31st December, 2003 passed by the learned Presiding Officer of Debts Recovery Tribunal-I, Mumbai on Exhibit No. 59 in Original Application No. 3624/2000. By the impugned order, the learned Presiding Officer allowed the application made by the respondent NO. 1 Bank, wherein prayer was made by them that they were allowed to annex certificate under Bankers' Book Evidence Act and Information Technology Act in the statement of accounts annexed to the list of original documents. The reason given for this lapse on the part of the Bank was attributed to their inadvertence. The defendants/appellants herein objected to the said prayer made by the Bank by filing their reply. The learned Presiding Officer after hearing both the sides and after going through the material, disallowed the said application though he observed that it was another classic example as to how the lethargy and non-application of mind on the part of the Banks made simple matters complicated. He did not stop by making this observation but also saddled the applicant Bank with a costs of Rs. 3,000/-. He also gave liberty to the defendants/appellants herein to make their submissions either in writing or orally on the statement of accounts as well as certificate produced by the applicant Bank and further observed that it was open for them to point out that despite such certificate, the statement of accounts was not reliable or that the certificate itself was defective. The defendants were however, not pleased though strong observations were made by the learned Presiding Officer against the Bank and though the Bank was directed to pay costs of Rs. 3,000/-. They were also not happy though liberty was given to them by the learned Presiding Officer to assail the said certificate at the time of hearing. The defendants still felt aggrieved and hence, the present appeal has been filed by them.

I have heard Mr. Jaideep Mitra for the appellants and Mr. Colabawala for the respondent Bank. I have also gone through the proceedings including the impugned order and in my view, the learned Presiding Officer has correctly passed the order balancing the interest of both the sides.

It is the contention of Mr. Jaideep Mitra, learned advocate appearing for the appellants that the learned Presiding Officer erred in allowing the said application of the Bank at such a belated stage. He contended that arguments of both the sides were over. He further contended that the Bank had closed its evidence and that the applicant Bank had ample opportunity to find out lacuna on their part to make their application earlier. It was also contended that the said application was afterthought. It was contended that the learned Presiding Officer committed error for these reasons in allowing the said application.

Mr. Colabawala, the learned advocate appearing for the respondent NO. 1 Bank countered the contention of the appellants' advocate by submitting that though application was made belatedly, the lapse was not intentional and was committed due to inadvertence. He argued that the lapse which was committed due to inadvertence was not something which could not be cured. He further argued that the huge claim of the Bank against the appellants should not be allowed to be dismissed on some technicality if the claim is otherwise proved. To substantiate his arguments. Mr. Colabawala relied upon AIR 1997 SC 3 (United Bank of India v. Naresh Kumar & Others). He supported the impugned order.

Having heard both the advocates at length, I find myself in agreement with the submissions made by Mr. Colabawala. Indeed the Supreme Court has stated in AIR 1997 SC (3) (supra) as follows:

Where the Courts came to a conclusion that money had been taken by certain parties from Bank and certain persons had stood as guarantors and that the claim of the Bank was justified it will be a travesty of justice if the Bank is to be non-suited for a technical reason such as plaint was not signed by competent person which does not go to the root of the matter and the only defeat which was alleged on behalf of the parties was one which was curable.

The Supreme Court finally concluded that:

In cases where suits are instituted or defended on behalf of a public corporation like Bank; public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause.

It is true that the application to permit them to produce the certificate as per the Bankers' Book Evidence Act and Information Technology Act came at belated stage. This shows lethargy and non-application of mind on the part of the Bank. However, this defect is not of a nature which goes to the root of the matter. This defect is something which can be always cured. It is unfortunate that sophisticated and high profile Bank like applicant with all its panel of lawyers commits such a mistake. The learned Presiding Officer has rightly made a strong observation against the Bank. He has saddled them with costs of Rs. 3,000/-. At the same time, the learned Presiding Officer gave liberty to the defendants/appellants to make their submissions either in writing or orally on the statement of accounts as well as certificate produced by the applicant Bank and also kept the point open for the defendants to point out that despite such certificate, the statement of accounts is not reliable or that the certificate itself is defective. I do not think that any other order would have been fairer than the one which has been passed: Albeit, to allow the public interest to be defeated on mere technicality is improper. The defendants cannot be heard to say that any prejudice has been caused to them because of the window kept open by the learned Presiding Officer, granting them liberty to assail/attack the statement of accounts and certificate which is produced at the belated stage. I therefore see no error in the impugned order. The appeal therefore will have to be dismissed. Hence, following order is passed:

ORDER

Misc. Appeal No. 42/2004 is dismissed. Since, Misc. Appeal is dismissed, Misc. Application No. 41/2004 does not survive and is disposed off accordingly.

Appeal dismissed