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Judgment
P.K. Bhasin, J
The appellant in this appeal appears to be more keen in attacking the learned Presiding Officer of the Debts Recovery Tribunal (DRT) rather than attacking the legality of her decision in rejecting his application (being I.A. No. 1425/2016) seeking permission to place on record additional documents in the Original Application filed by the respondent No. 1 herein, which is a Public Financial Institution under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (in short 'the RDDBFI Act') against the appellant and five others for the recovery of over ten crores of rupees. The learned Presiding Officer has rejected the application moved by the appellant who was being sued by the respondent financial institution as a guarantor for the repayment of huge amount of loan to the tune of Rs. 1150.00 lacs advanced to respondent No. 2 herein, M/s. Sri Satyanarayana Power (P) Ltd. (hereinafter to be referred as the borrower Company), in which Company the appellant was a Director also. The impugned order whereby appellant's I.A. No. 1425/2016 was dismissed is re-produced below:
''Dated 25.3.2017
IA No. 1425/2016
Today the case is fixed for orders on pending IAs.
This IA has been filed on behalf of defendant No. 2 for taking on record the additional documents which have been filed by the defendant No. 2 to lead additional evidence.
It is stated in the IA that defendant No. 2 already filed the evidence and intend to file the additional documents which have been received by the defendant No. 2 in the criminal proceedings which are pending, before Special Judge, EOW, Hyderabad by which the defendant No. 2 shall establish that new Directors had opened account with Andhra Bank and inter se transactions were done with the consent of the applicant Bank and the motive by which funds which have been sanctioned by the applicant has been diverted, mis-utilized and mis-appropriated.
Learned Counsel for non applicant/IREDA vehemently opposed the IA stating that defendant No. 2 has already filed the counter claim and evidence as well and now when the case is ripe for final arguments, defendant No. 2 has preferred the IA just to delay the proceedings of the case.
I have heard learned Counsel for the parties and also perused the record. This OA was filed in the year 2007 and defendant No. 2 has also filed the counter claim as well. I am of the view that defendants are trying to the delay the case by filing one IA after another in order to frustrate the recovery of the dues. Hence, I am of the view that this IA is liable to be dismissed and hence same is dismissed accordingly."
The loan was given to the borrower Company in the beginning of the year 2001. Consequent upon the borrower Company failing to repay the loan amount in terms of loan agreement a notice of demand notice under Section 13(2) of the SARFAESI Act was served upon the borrower Company and guarantors since the repayment of the loan was secured by equitable mortgage also of some immovable asset of one of the guarantors. Since the borrower Company as well as the guarantors/mortgagor, failed to comply with the demand notice requiring them to make the payment of Rs. 7,17,11,403/- with contractual interest the respondent filed a case for recovery of its dues under Section 19 of the RDDBFI Act which was registered as O.A. No. 08/2007 in DRT-I, Delhi. Order for sale of mortgaged property was also prayed for in the O.A. besides making the prayer for issuance of a recovery certificate for a sum of Rs. 9,95,00,763/- with interest thereon from the date of filing of the case till realisation.
After completion of pleadings, which included lodgement of a counter claim also by the appellant herein, evidence was also adduced by the contesting parties before the DRT and when the trial was nearing conclusion the appellant/guarantor came out with one application seeking permission of DRT to file certain additional documents which he claimed to have got in some criminal proceedings initiated at his instance and pending in the Court of Special Judge, Economic Offences Court, Hyderabad, for siphoning off of the loan amount sanctioned by the respondent No. 1 herein to respondent No. 2 Company by some persons including some of the directors of respondent No. 2 Company and a senior officer of respondent No. 1 herein in conspiracy with each other.
The appellant is contesting the O.A. inter alia on the ground that he stood discharged because of novation/variation of the loan contract between the respondent No. 1 and the borrower Company in collusion and connivance of an officer of respondent No. 1.
The appellant sought production of additional documents to show how loan amount disbursed by respondent No. 1 was siphoned off and utilised for funding the relatives of the officer of respondent No. 1, Shri K.B.K. Reddy instead of being utilised for the purpose for which it was sanctioned by respondent No. 1.
The learned Presiding Officer of DRT-I, Delhi has rejected the appellant's application, as is evident from her order impugned which has already been reproduced, on the ground that the same had been moved to delay the disposal of the O.A.
The main grievance raised before this Tribunal at the time of hearing of this appeal by Mr. Sanjiv Bhandari, learned Counsel for the appellant assisted by Shri Amit Dhall, Advocate, was that the learned Presiding Officer of DRT (Ms. Rekha Dhakar) had not been fair to the appellant while dismissing his application for production of additional documents inasmuch as despite the fact that no reply to the application was filed by respondent No. 1 and the learned Senior Counsel representing the respondent No. 1 had categorically consented for the acceptance of the appellant's application at the time of arguments the Presiding Officer had contrary to that position recorded in the impugned order that the:
"Learned Counsel for non applicant/IREDA vehemently opposed the IA stating.....when the case is ripe for final arguments, defendant No. 2 has preferred the I.A. just to delay the proceedings of the case."
Mr. Bhandari submitted that the appellant would have had no grievance in case the Presiding Officer of DRT had rejected the application she was not allowing the application despite the Senior Counsel giving his consent for the acceptance of the application because she had found no merit in the prayer for production of additional documentary evidence by the defendant/appellant but dismissing the application by recording that the application was vehemently opposed by the Counsel for the O.A. applicant was highly improper. In this regard my attention was also drawn to ground No. 'D' in the memorandum of appeal which is re-produced below:
"D. Because impugned order dated 25.3.2017 passed by learned DRT-I, Delhi is without application of mind for the specific reason that the arguing Senior Counsel appearing on behalf of the respondent No. 1 accepted that the original documents may be taken on record which are subject to admissibly in evidence and granting opportunity to the appellant as well as respondent No. 1 to file additional documents and evidence and additional evidence by way of affidavit in time framed manner and thus, the learned Tribunal thus, without record any of the statements, given finding which is against the record, therefore, impugned order dated 25.3.2017 is liable to be dismissed."
Learned Counsel also submitted that this fact can be got confirmed even from the Senior Counsel who had given the concession before the DRT as also from the Advocate who was having the Vakalatnama from respondent No. 1 and there was no need of appellant approaching the Presiding Officer and this Tribunal itself should take notice of the Advocate's statement being made here and accept the same instead of doubting its correctness and requiring the appellant to first appear before the Presiding Officer herself and telling her that she had recorded incorrect fact in the impugned order that the appellant's application was vehemently opposed,
In my view this ground of challenge taken to challenge the order of the DRT is in the teeth of the legal position laid down in this regard by the Hon'ble Supreme Court way back in the year 1982 in its judgment in State of Maharashtra v. Ramdas Shrinivas Nayak & Anr., 1982 (SLT Soft) 189 : AIR 1982 SC 1249. This is what was laid down by the Apex Court:
"When we drew the attention of the learned Attorney General to the concession made before- the High Court, Mr. A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (1) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so seated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (2) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.....
In Sarat Chandra v. Bibhabati Debi (2) Sir Asutosh Mookerjee explained what had to be done:
"It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment."
So the Judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else."
In view of these observations of the Hon'ble Supreme Court I reject the submission made on behalf of the appellant that in order to contradict the Presiding Officer I should verify the factual position from the Senior Counsel who had argued the matter before the DRT and accept what is being submitted on behalf of the appellant by his Advocate. In fact, the appellant or his Counsel not approaching the Presiding Officer at first instance to ventilate this grievance, which is of serious nature, is a circumstance which itself belies the submission being made by the appellant contrary to the judicial proceedings and appears to have been pressed into service by the Appellant to prejudice the mind of the Appellate Tribunal and taking of such a stand before the appellate Tribunal instead of raising this grievance before the Presiding Officer supports the view of the Presiding Officer that the appellant is only interested in delaying the disposal of the OA.
I say nothing more on this aspect of the matter.
Even otherwise also there is no merit in this appeal. The additional documents sought to be produced at the fag end of the trial have nothing to do with the recovery of the dues of respondent No. 1. According to the appellant, the documents which he wants to bring on record will show that the money which was disbursed to respondent No. 2 by respondent No. 1 was not utilised by the borrower for the purpose for which it was disbursed but was diverted fraudulently to the accounts of relatives of one officer of respondent No. 1 and consequently the appellant could not be sued for recovery of that money. However, that is a separate matter which the criminal Court in Hyderabad is stated to be examining in the complaint case of the appellant. In the present case all that the respondent No. 1 has to show is that it had sanctioned loan of over eleven crores of rupees to respondent No. 2 and repayment of that payment was guaranteed by the appellant and other persons and that money has not been repaid. The allegations of siphoning off of the loan amount is a subject matter of criminal proceedings in which it may also/have to be examined as to what the appellant himself was doing when public money was being siphoned off by his co-directors.
I, therefore, I do not find any merit in this appeal and consequently it is dismissed. However, before parting with this matter, I would like to make some observations for the DRTs to be kept in mind while noticing that any litigant before them is only interested in delaying the recovery proceedings. In the present case, the learned Presiding Officer came to a categorical finding that the appellant was delaying the matter but after saying so did not do anything to ensure that he does not succeed in that attempt. Section 19(18) and (25) of the RDDBFI Act give ample powers to the DRTs to stop the litigants from delaying the disposal of the matters before them. In case the Presiding Officers of the DRTs get an impression that any litigant before them is bent upon adopting delay tactics, they can always pass any of the directions mentioned in Section 19(18) of RDDBFI Act and also in exercise of the general powers conferred upon the DRT's by the Parliament under Sub-section (25) of Section 19, appropriate orders can be passed to prevent abuse of their process of Court and the DRTs should not hesitate in invoking these powers given to them to ensure that public dues are recovered with expedition and the recovery proceedings are not stalled by the litigants defaulting borrowers or even by the Banks/financial institutions by seeking unnecessary adjournments due to which the defaulting borrowers stand to gain in by delaying recovery of public money from them. Therefore, if now the appellant again adopts any delaying tactic, the DRT will not hesitate in invoking its powers under Section 19(18) and (25) of the RDDBFI Act.