R.A Mehta, Presiding Officer:— The legality, propriety and correctness of the order refusing to allow the applicant Bank to produce additional evidence in the form of production of two letters purported to have been written by the defendants to the Bank is challenged in this Appeal preferred by the Bank.
2. The Bank had filed the suit in Civil Court on 11.8.1982 for the recovery of Rs. 14,40,431.97 with future interest. The defendants contested the suit on the ground that it was barred by limitation amongst the other contentions for denying their liability to pay any dues.
3. After recording the evidence for and on behalf of the Bank in the year 1989, no progress was made in the Civil Court where the suit was pending. The suit came to be transferred in the year 1996 and on transfer it was fixed for arguments on 13.8.1997 on which day the Bank applied for the production of two letters alleged to have been written by the defendants in support of their claim. The Application was vehemently opposed on the ground that it was not bona fide.
The Presiding Officer upheld the objections and rejected the application for production of the said two letters filed by the Bank.
Aggrieved by this order the Bank has come in appeal.
4. The only point which therefore arises for consideration is whether the Presiding Officer was justified in rejecting the application.
5. True it is, that the production was sought when the suit was fixed for arguments. The production certainly was at the fag end of the suit. That alone, however, cannot be the ground for rejecting the application. The production can be allowed at any stage including the stage of arguments provided of course the applicant fulfils the requirements of Order XVIII, Rule 17A; Order XIII, Rule 2 read with Section 151 of the Code of Civil Procedure. The provisions of Code of Civil Procedure are not made applicable under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993. However, the question of production or even the rejection has to be considered vis-a-vis the principle underlying them and also the principles of natural justice.
6. The case made out by the applicant Bank was: that it was not within their knowledge about the said two letters and that came across the letters when they were preparing for the arguments. Mrs. Bijay, the learned Advocate on behalf of the respondents while opposing the said claim urged that the Bank in paras 12 and 16 of their pleading pleaded that the defendants from time-to-time had acknowledged their indebtedness. It is significant to know that the defendants had approached the Bank for loan facilities in July 1974. The initial loan facilities were converted into some other facility. The original limit was also enhanced. The facilities were allowed under two different accounts. The suit was filed on 11.8.1982 Under the said circumstances and in order to show as to how the suit filed on 11.8.1982 was within limitation, it was pleaded that the defendants had from time-to-time acknowledged their indebtedness. The averments in the pleading do not purport to show that the Bank was aware of the two letters dated 19.6.1979 and 9.10.1979 written by the defendants to their Manager. If the Bank was aware, it would have necessarily made reference to those two specific letters so as to plead that the suit was within limitation on the basis of these two letters. There was no reason much less propriety from withholding the said two letters at the time of filing of the suit. The fact that they were not referred and relied upon shows that the concerned Bank Officer was not aware about these two letters at the time of the filing of the suit.
7. The said suit filed on 11.8.1982 was pending for a considerable period in the Civil Court. Only one witness was examined on behalf of the Bank on 9.4.1989 The defendants did not examine any witness. Even then the suit was not decided till it was transferred in the year 1996. The protraction of the suit for a considerable period cannot the opportunity to submit their say in respect of the letters alleged to have been written by them. But then there is absolutely no reason as to why the Bank Officer should not be relied upon when he claims that the letters were not within the knowledge of the Bank when the suit was filed and that they came across the letters only when they were trying to prepare for the argument. This testimony on solemn affirmation necessarily fulfils not only the requirements of provisions of Code of Civil Procedure but also the principles of natural justice.
8. The reasons assigned by the learned Presiding Officer for rejecting the application are rather self-contradictory. He has certainly fallen in error in rejecting the application.
9. It is then advanced on behalf of the respondents that the impugned order is an interlocutory order and as such the appeal filed by the Bank itself is not maintainable under the provisions of Section 20 of the Act. True it is that there is no specific provision for providing appeal against the interim application or the interlocutory orders. Section 17 of the Act has to be read alongwith Section 20 and if so read, it would necessarily convey that the Appeal contemplated under Section 20 is even against the interlocutory orders. It has also been so held in the case of Bank of India v. Baroda Cables Private Limited reported in 1998 Bank Journal 463 (Guj. High Court). In para 12 it has been observed that:
“On the contrary; looking to the above provisions in their entirety it is clear that any order passed by the Debts Recovery Tribunal is subject to challenge under Section 20 before the Appellate Tribunal…”
The Appeal is thus maintainable in law.
10. The result is that the appeal will have to be allowed. I thus pass the following order:
Appeal is allowed. The impugned order dated 23.12.1997 is hereby set aside. The original application for production of documents is allowed.
The defendants shall be given an opportunity to submit their say in respect of the two letters which are being produced on behalf of the Bank. Both the parties shall be allowed to adduce evidence in respect of the said two letters.
No order as to costs of this appeal.
Appeal allowed.