SONU TEXTILES MUMBAI Vs. PUNJAB NATIONAL BANK MAMBAI

JUDGEMENT

(1.) Rule. Respondents waive service. By consent Rule made returnable forthwith. Heard both the sides.

(2.) It may be noticed that while rejecting the contentions raised on behalf of the petitioners, the Appellate Tribunal in the order impugned in this petition, held as under :

(3.) The correctness of the above order is challenged by the petitioners on the ground that Rule 12 (6) and (7) of The Debts Recovery Tribunal (Procedure) , rules, 1993, (hereinafter referred to as the said Rules) on their cumulative reading makes it obligatory upon the authority and appellate forum to allow cross-examination in the interest of justice and to achieve real object of the procedural law. The discretion vested in the authorities under the provisions of rule 12 (8) has its own effect and impact and once documents were not being produced by the respondent Bank, it was necessary for the authorities to allow cross-examination by the petitioners on the two principal issues raised by them. On behalf of the respondent Bank it is contended that the subsequent applications were not maintainable and in any case no right is vested in the petitioners to claim cross-examination of the witnesses. It is further contended that within the limited jurisdiction vested in the Tribunal under these provisions, the right to cross-examination is an exception and not a rule. While relying upon the judgment of the Supreme Court in the case of Union of India and ors vs. Delhi high Court, Bar Association and ors. , AIR 2002 SC 1479, it is also argued that rule 12 (7) empowers the Tribunal to act upon the affidavits and the need for oral examination of witnesses should rarely arise where, for good reason, the Tribunal is of the view that affidavits were not sufficient. Keeping in view the nature of the dispute in the present case, there is no justification for allowing cross-examination of the Bank witness. No doubt, the provisions of the Recovery of debts Due to Banks and Financial Institutions Act, 1993 read with Rules of 1993 provide for a self contained code in relation to the procedure which is to be adopted by the Tribunal. By the amendment to the procedure under the amending Rules, 2003, the Rules were amended and particularly sub-rule (6) of rule 12 was substituted requiring the parties to lead evidence by filing affidavits and the discretion was given to the Tribunal to permit cross-examination of the witness, where it appears to the Tribunal that such witness can be produced and it is necessary to do so for the reasons to be recorded by the Tribunal. The intent of the rule-making authority is obvious that the oral examination and/or cross-examination of the witness is not to be allowed as a rule. Normally, the intention is to decide the matter on affidavits wherever the facts and circumstances of a case demands. Obviously, the Tribunal will have to exercise its powers in accordance with Rule 12 (6) of the said Rules. Rule 12 (6) reads as under :