Rekha Verma vs Oriental Bank Of Commerce

Ranjit Singh, J

The application filed by the appellant to seek cross-examination of the witness of the Bank has been declined by the Tribunal below. Aggrieved against the same, the appellant has preferred the present appeal. This appeal against the order dated 9.10.2015 is filed with a delay of 100 days. The appellant has accordingly filed an application seeking condonation of this delay. As per the appellant, there is no delay in filing the appeal as the same is filed within the period of limitation prescribed under Section 18 of the SARFAESI Act. It is averred that the appellant had first filed Writ Petition No. 10237/2015 before the Hon'ble Delhi High Court against the impugned order dated 9.10.2015. This writ petition was disposed of on 2.11.2015 with the direction to the respondent to supply statement of account on or before 4.11.2015, giving liberty to the appellant seek appropriate remedy if she still felt aggrieved. Appellant would contend that in view of the order passed in the writ petition, the appeal filed is within the limitation, as the Bank had supplied the statement of account only on 21.1.2016 whereafter this appeal was filed on 22.2.2016. The appellant has accordingly pleaded that delay, if any, in filing the present appeal be condoned.

I have perused the order passed by the Hon'ble High Court in the writ petition noted above. Before the High Court, the respondent Bank had raised a preliminary objection about the maintainability of the writ petition on the ground that the appellant had not availed the remedy of appeal available to her against the impugned order. The plea by the Counsel for the appellant before the High Court was that the Bank had failed to place documents on record and thus in the absence of documents, opportunity to cross-examine the witness of the Bank would be necessary to establish appellant's case in the S.A. The submissions made by the Counsel for the appellant were disputed by the Counsel appearing for the Bank before the High Court. In this background, the High Court disposed of the writ petition directing the Bank to supply complete statement of account on or before 4.11.2015. The Court further observed that if the petitioner (appellant) felt aggrieved, she would seek appropriate remedy as available in accordance with law. Both the parties had agreed to seek adjournment for 4.11.2015 and had directed the DRT to fix a date in the first week of December to enable the appellant to seek appropriate remedy as available in accordance with law.

The High Court had granted liberty to the appellant to avail remedy in accordance with law. Thus, the appeal filed by the appellant, which is the remedy available to her, has to be dealt with in accordance with law. The appeal against the impugned order could be filed within 30 days and has been filed on 22.2.2016. There is thus a delay of 100 days in filing the appeal, The delay up to 4.11.2015 can be ignored in terms of the High Court order and even if that is done, the present appeal is filed with a delay of 71 days. The plea by the Counsel for the appellant in this background that there is no delay in filing this appeal cannot be accepted.

The prayer in the application seeking condonation of delay is that the present appeal is filed within the period of limitation. It is not explained in any manner as to how this appeal filed on 22.2.2016 impugning the order dated 9.10.2015 is within the limitation. The sole reason which is not pleaded but as can be made out is that the copy of the statement of account was supplied only on 21.1.2016. That in itself would not extend the period of limitation for filing the appeal. The appellant cannot seek to extend the limitation in this manner. Since no sufficient explanation for the delay is forthcoming, the appeal is liable to be dismissed on account of delay in filing the same.

There is another hurdle which the appellant has to cross. The appellant was served with the notice under Section 13(2) of the SARFAESI Act for recovery of an amount of Rs. 2,24,90,144.23 in Cash Credit (Hyp) account and Rs. 2,85,15,549 in Adv. Against OD Exp. Bill. The appellant thus has filed an application for seeking waiver of the requirement of pre-deposit to maintain the appeal. Plea is that appellant was required to deposit Rs. 40 lac when she filed the writ petition before the High Court. As per the appellant, this deposit would be enough to maintain the appeal and the appellant is not required to make any further deposit to maintain the appeal. This plea apparently is against the mandatory provisions of Section 18 of the SARFAESI Act as per which the present appeal can be maintained only on deposit of 25% of the notice amount which would be approximately Rs. 125 lacs.

Be that as it may, I have still heard the Counsel for the appellant on merits. The appellant had pleaded for permission to cross-examine the Bank's witness on the ground that respondent Bank had issued a certificate on 25.3.2014 stating that the account of the firm was standard running account. In the certificate issued by the Bank it was mentioned by the Bank that as on 25.3.2014, the balance outstanding in the account was Rs. 1,91,02,562.01. The plea also was that the account of the borrower firm was within the limit when it was classified as NPA on 31.3.2014. Prayer is that this fact can only be shown by cross-examining the Bank's witness. Reference is made to the reply filed by the Bank pointing out that the borrower firm had not deposited interest for the months of November and December whereas the account was irregular since September 2013. As per the Counsel, the statement of account is contradictory, which shows huge amounts were deposited.

Mere mention by the appellant to these facts shows that these facts can be easily established on the basis of documents which are available with the appellant and accordingly cross-examination of Bank's witness for this purpose is really not necessary. The Tribunal has taken note of the plea by the appellant where she has admitted to have availed the credit facilities. The appellant had also pleaded that she was trying to sell one property to discharge the liability.

For the reasons and purpose given in the application and submitted before the Tribunal below and before this Tribunal, no case for permitting cross-examination of Bank's witness is made out. The plea that the appellant would like to seek clarification about the contradiction may rather prejudice the appellant cause. If there is any contradiction, the appellant may at liberty to point out the same. For this purpose, it is not necessary to cross-examine the Bank's witness. As has been held by the Hon'ble Supreme Court in the case of Union of India & Anr. v. Delhi High Court Bar Association & Ors., II (2002) BC 194 (SC) : II (2002) SLT 556 : 96 (2002) DLT 726 (SC) : (2002) 4 SCC 275, the cross-examination in the proceedings before DRT can rarely be allowed because evidence which is led by the Bank/financial institution are on the basis of printed documents. I do not find any reason to interfere with the impugned order passed by the Tribunal below. The appeal is, therefore, dismissed in limine on merits as well as on account of delay in filing the same. The appeal otherwise is not maintainable merely on deposit of Rs. 40 lac.