Dr. Motilal B. Naik, Chairman:— These three Miscellaneous Appeals arise out of an order dated 23.7.2004 passed by the DRT-I, Delhi in LA. 869/2004 and LA. 868/2004 and an order made in O.A, rejecting the request on behalf of these appellants for cross-examination of the witnesses of the respondent Bank.
2. This appellant is defendant in O.A 59/2003 instituted by the respondent Bank for recovery of certain amounts. During O.A proceeding, this appellant filed two applications, one in LA. 869/2004 seeking sending certain documents of the respondent Bank to CFSL for scientific examination, for handwriting verification, and for assessment of time when the entries and signatures were made on the documents, and further, for initiating action against the erring officials of the respondent Bank under Section 340, Cr. P.C The other LA. 868/200 is for summoning two employees of the appellant company who were working with the appellant but left services of the company.
3. According to the appellant these persons have the knowledge of all these documents, who could explain the circumstances relating to the documents. On the basis of the submissions made by the Counsel for the applicant as well as the Counsel for the respondent Bank, the Tribunal, by order dated 23.7.2004, dismissed these applications holding that the procedure contemplated under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short ‘the RDB Act’) is summary in nature, that there is no provision to summon the witnesses and that the Tribunal cannot proceed to take action against erring officials of the respondent Bank under Section 340 of Cr. P.C as the appellant failed to lodge a complaint before the appropriate authority.
4. Further, on a request made on behalf of the defendants 2 to 5 that the may be allowed to cross-examine the witnesses of the respondent Bank, the Tribunal rejected the request holding that when, the defendants failed to file any evidence by way of affidavit and documents, no cogent reasons are shown for summoning the witnesses of the Bank for cross-examination.
5. Mr. R.P Vats, the learned Counsel for the appellant, primarily contended that when these two applications were filed before the Court bringing to the notice of the Court, the Court below without examining the correctness with reference to the stand taken by the applicant in the written statement, dismissed the said applications as if the procedure contemplated under the RDB Act is only summary in nature which neither permits cross-examination nor summoning of a witness. Counsel stated that even assuming for a moment that such procedure is not contemplated under the provisions of the Act, still the guiding factor would be the principles of natural justice. Principles of natural justice provides for a reasonable opportunity to either side. According to the learned Counsel for the appellant, the Tribunal (DRT) ignored this factor, which has resulted in causing irreparable injury to the appellant. Counsel also pleaded that when this appellant was not permitted to file its evidence, even accepting for the purpose of discussion that even though no evidence is filed on behalf of the appellant, cross-examination of Bank's witnesses could have been permitted when it is urged that the cross-examination of the deponent of the Bank is necessary.
6. Mr. A.N Tiwari, the learned Counsel for the respondent Bank, vehemently opposed the request contending that the conduct of the parties go to show that though the Court had given sufficient time for filing evidence, the defendants failed to file the evidence. Earlier on one occasion Court imposed Rs. 2,000/- costs, even then the appellant failed to file its evidence. These instances have given an impression in the mind of the Court that the appellant is delaying the matter. Counsel stated that the order passed by the Court is just and reasonable. Counsel also advanced an argument that the procedure contemplated under the RDB Act is summary in nature.
7. This Tribunal has noticed, in several cases the Presiding Officer under its jurisdiction have been repeatedly recording in their orders that the procedure contemplated under the RDB Act is summary in nature and neither cross-examination nor summoning of the witnesses is permissible. This view is expressed relying on the judgment of the Hon'ble Supreme Court in Union of India v. Delhi High Court Bar Association
8. At the outset I may clarify this position with regard the judgment of the Hon'ble Supreme Court referred to above. In my considered view, the Hon'ble Supreme Court never intended to say that cross-examination is not at all permissible. Secondly, Rule 12(6) of the Debts Recovery Tribunal (Procedure) Rules provide for cross-examination of the witnesses by a party in a given case. Thirdly, Sub-section (2) of Section 22 of the Act provides that the Tribunal shall have the same powers as vested in Civil Courts, in certain circumstances which include summoning and enforcing attendance of any person and examining him on oath.
9. I may further clarify that the view of the Hon'ble Supreme Court should not be interpreted in such a manner as if the Hon'ble Supreme Court has imposed fetters on the Tribunal not to permit cross-examination or seeking expert opinion with regard to handwriting or signature. In para 23 of the judgment, the Hon'ble Supreme Court, observed. “……. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to the Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present for cross-examination…….” Proviso to Rule 12(6) of the Procedure Rules, 1993 as amended in 2003 also provide that the Tribunal shall on recording sufficient reasons order a witness to be present for cross-examination.
10. It is relevant at this point to mention here the provisions of Section 22 of the Act, Section 22 reads thus:
“Procedure and powers of the Tribunal and the Appellate Tribunal—
(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings.
(2) The Tribunal and the Appellate Tribunal shall have, for the purpose of discharging their functions under this Act, the same powers as are vested in a Civil Court the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte;
(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(h) any other matter which may be prescribed.
(3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purposes of Section 196, or the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974)
The Tribunals constituted under the provisions of this Act are not bound by the procedure laid down by the CPC, but are to be guided by the principles of natural justice and subject to the provisions of the Act and Rules.
11. In Union Of India v. T.R Varma , AIR 1957 SC 882, the Hon'ble Supreme Court was considering a case relating to service condition of an employee, where Evidence Act had no role to play. The Apex Court observed: “Evidence Act has no application to inquiries conducted by Tribunals, even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the inquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law.” As already stated, even if the procedures contemplated under CPC are not followed, the Tribunal being a Court of Law, cannot ignore the rule of natural justice.
12. In view of the discussions, I am of the view that the Tribunal functioning under the Act cannot summarily reject the request made on behalf of a party either for summoning a witness for cross-examination or for referring a document to an expert opinion either or verifying the handwriting or signatures of a crucial document. These facets of consideration are part of the rule of natural justice. From the facts set out in this case, I am convinced that the request made on behalf of the appellant could have been acted upon and the two miscellaneous applications filed could have been ordered.
13. Accordingly, the impugned orders are set aside. The appeals are allowed. However, no costs.
14. L.R copy be marked.
Appeals allowed.