L.M.L. Limited vs Indian Overseas Bank And Ors.

J.M. Malik, J

This order shall decide an application for review, recall and modification of the judgment and order dated 30.7.2010 in Appeal No. 212/2000. Learned Counsel for the appellant has made the following three submissions.

It was argued that the respondent Bank has already recovered the considerable amount by sale of the property of the borrower and that amount should be ordered to be adjusted against any action of the Recovery Officer taken against the appellant. It is contended that the Counsel for the appellant had cited an authority reported in Poonam Manshani v. J & K Bank Ltd. &Anr., : AIR 2010 Delhi 28, at the time of final argument. In this application it is averred, "The photo copy of the judgment of the Delhi High Court was taken and filed after the hearing but the same had escaped notice when the order had been passed thereafter.

There is no use of producing/citing an authority after the judgment stands dictated. It is the duty of the Counsel to cite and produce the judgment before the judgment is dictated. However, it is ordered that if both the Banks that is the Indian Overseas Bank and UCO Bank have already recovered any amount from other borrowers the same would be adjusted towards the loan and they will not enforce the recovery against the appellant. Counsel for the Indian Overseas Bank argued that a sum of Rs. 40 lacs was recoverable from the borrowers and the appellant in the year 2001 out of which Rs. 15 lacs have been recovered by auction of property. Besides Indian Overseas Bank, UCO Bank is also claiming 50% share in the said amount and the amount is yet to be recovered.

Secondly, it is pointed out that the appellant is a sick company for which a scheme for revival and rehabilitation before B1FR is being drawn by the operating agency as per the orders and directions of the BIFR for which proceedings are continuing and copies of the order passed by the BIFR have been placed on the record. It is submitted that in terms of Section 22(1) of SICA any proceedings are not permissible. It is prayed that the proceedings be stayed as per Section 21 of the SICA.

I have heard the Counsel for the parties. The learned Counsel for the respondent stated at Bar that it will proceed against the appellant as per the procedure provided under SICA. It is, therefore, made clear that as per the proceedings pending under SICA, respondent can act only under that Act and is otherwise precluded from recovering the amount from the appellant.

The third submission made by the Counsel for the appellant was that the appellant had produced three witnesses in support of their case. Except Mr. B.S. Jain the affidavits produced by the other two witnesses are not relevant. Mr. B.S. Jain deposed that he prepared the affidavit after inspecting the record of the Bank. He denied personal knowledge about this case. He in his cross-examination submitted that the previous statement made by the Bank in para 14 was wrong. In his cross-examination Mr. B.S. Jain further stated in relation to the account of Sachdeva International that he did not remember as to what were his duties and had no personal knowledge of the transaction relating to the suit and so far as the contents of para 14 of his affidavit were concerned the same were wrong to his personal knowledge.

I see no merit in this argument. The law does not require that the witness must have personal knowledge. The appellant can prepare the affidavit after inspecting the record. Rule 12(7) of the Debts Recovery Tribunal (Procedure) Rules, 1993 lays down this provision.

No other argument was raised by the Counsel for the appellant. However, the application moved by him raises other questions such as that appellant was neither the debtor nor a guarantor and there was no privity of contract nor any debt is due from the appellant to the respondent Bank. Again, there was no stipulation of payment of interest in the Hundis. These questions have already been decided. The Court is not supposed to re-hear the case. Consequently, application to that extent is without merit.

With the abovesaid modifications, the review petition stands disposed of.

Copies of this order be furnished to the parties as per law and one copy be sent to the learned DRT forthwith.