ALLIED CHEMICAL LABORATORIES Vs. PRESIDING OFFICER DEBT RECOVERY

JUDGEMENT

(1.) The petitioner has challenged the order dated 9-4-2003 passed by the Presiding Officer, Debts Recovery Tribunal Orissa, Cuttack in O.A. No. 328 of 2001 in terms of which the claim of opp. party No. 2-Bank for a sum of Rs. 23,27,390.16 has been decreed with interest and cost.

(2.) The petitioner is the sole proprietor of the firm, namely, M/s. Allied Chemical Laboratories". For bringing some technical changes in his unit he availed a loan of Rs. 3.5 lakhs from opp party No. 2-Bank in the year 1986. In the year 2001 the Bank filed Original Application No. 322 of 2001 before the Debts Recovery Tribunal (in short, 'D.R.T.'), Patna for recovery of the loan amount and interest thereon from the petitioner. The said Original Application was transferred to the D.R.T., Orissa, Cuttack and was renumbered as O.A. No. 328 of 2001. On notice the petitioner appeared and filed show-cause taking a plea that the claim is barred by limitation. He also pleaded that neither he himself nor his guarantor ever executed the revival letters and balance confirmation acknowledgment and that opp party No. 2 created those fake documents. Opp. party No. 2 filed reply to the said show-cause and also filed affidavit evidence of the Branch Manager of the Bank. The petitioner then made a prayer before the D.R.T. demanding production of the Branch Manager for cross-examination, but the learned D.R.T. rejected the said prayer and basing on the affidavit evidence decreed the claim of opp. party No. 2 vide the impugned order. Aggrieved by the order decreeing the claim, the petitioner has filed this writ petition under Article 226 of the Constitution.

(3.) The submission of the learned counsel for the petitioner is that by not giving an opportunity to cross-examine the witness of opp. party No. 2-Bank, the D.R.T. not only violated the principles of natural justice but also acted contrary to the provisions of Rule 2005 Ori./3 III G-41 12 (6) of the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as 'the Rules, 1993'). According to him, when the petitioner had specifically challenged the genuineness of revival letters and balance confirmation acknowledgments produced by opp party No. 2, opportunity of cross-examining the Branch Manager should have been extended and the documents should have been sent for examination by the handwriting expert. Opp party No. 2 in the counter affidavit while denying the allegations that the revival letters and balance confirmation acknowledgments were fake and forged specifically asserted that production of witness who has given evidence by affidavit is not mandatory and that the D.R.T. may refuse such prayer of a party, if it feels that the prayer is not bona fide. Opp party No. 2 also challenged the maintainability of the present writ petition on the ground that the power under Articles 226 & 227 of the Constitution cannot be invoked where specific appellate forum is available. According to opp. party No. 2, the petitioner has filed this writ petition with an intention to drag the recovery proceeding which has already been initiated on the basis of the judgment and certificate issued thereon and also to overcome the delay of 10 months which has occurred after the passing of the impugned order.