At, Debt Recovery Appellate Tribunal At Chennai
By, THE HONORABLE JUSTICE: A. SUBBULAKSHMY. (CHAIRMAN)
1. 1. The snort point that arises in this appeal is whether defendant No. 2 is entitled to cross-examine DW 1 before the DRT. The Tribunal by its order dated 21.11.2001 has passed order holding that D-2 is entitled to cross-examine DW 1. As against that order the appeal is filed.
2. Counsel appearing for the appellant-1st defendant submitted that the plaintiff has sought the relief against the defendants and the plaintiff has categorically stated in the plaint that inadvertently the Bank has paid the amount to the 1st defendant and there is a specific case of the plaintiff that if the Bank has inadvertently paid the money to the 1st defendant, the 2nd defendant should not be allowed to cross-examine the 1st defendant.
3. The matter involved in this case is with regard to the payment of the dividend amount on the UTI Certificate. The 1st defendant transferred the UTI's Certificate to the 2nd defendant. The 1st defendant contends that the dividend for the year 1991 -92 was to be paid to the 1st defendant and the UTI Certificates itself were transferred only in July, 1992, by cancelling the UTI Certificates standing in the name of the 1st defendant transferred to 2nd defendant and as the Certificates were transferred only in July, the dividend upto June, 1992 was to be paid to the 1st defendant which was rightly paid by the Bank to the 1st defendant. The significant factor is that, the Bank also paid the dividend to the 2nd defendant subsequently. So there is double payment with regard to the payment of the dividend amount. Only on that the applicant bank has come forward with this application for realization of the amount from the defendants holding that the Bank has inadvertently paid money to the 1st defendant and the 2nd defendant is impleaded as a necessary party to the suit in order to determine the real matter in dispute and to have proper adjudication in that matter.
4. Counsel for the 1st defendant submits that D-l is entitled for the dividend whereas Counsel for the 2nd defendant contends that only D-2 is entitled to get the dividend since the transfer was effected in May, 1992. Whether the transfer was effected in May, 1992 as contended by the 2nd defendant or in July, 1992 as contended by the 1st defendant these are all matters to be gone into during the trial and the DRT has to decide with regard to the liability of the parties. The 1st defendant was examined as DW 1 and when D-2 was to cross-examine DW 1 it was objected by the Counsel for the 1st defendant.
5. Counsel for the appellant submits that the dispute between the 1st and 2nd defendants is a civil dispute and that is with regard to the agreement or contract entered between them with regard to transfer of the UTI certificates and so the 2nd defendant has no right to cross-examine DW 1 as the DRT has no power to try civil dispute. The plaintiff has filed the claim, as against both the defendants. So the matter has to be decided as to who is entitled to receive the dividend. Only if that was settled the PO, DRT can pass the order directing the specific party to pay that amount. The Tribunal has power to adjudicate recovery of debts due to Banks and Financial Institutions and for matters connected therewith. The Tribunal has to pass orders and give directions to secure the ends of justice. Since both the defendants claimed that they are entitled to the dividend from the applicant Bank it has to be decided first as to who is entitled for the dividend. Even though the Bank is not concerned with regard to the agreement entered between Dl and D2, with regard to the payment of dividend, the Bank is entitled to see who is entitled for the dividend and to whom the money should be legally paid.
6. Even though the Bank is not concerned with regard to the agreement between Dl and D2 since the applicant Bank has claimed this amount from both Dl and D2, to have proper adjudication in that matter and to find out who is legally entitled for that dividend amount and from whom the dividend amount has to be recovered to determine the real dispute between the parties and to have complete adjudication in that matter and to settle all questions involved in it, the 2nd defendant can be given opportunity to cross-examine the 1st defendant DW 1. No prejudice will be caused to the 1st defendant if D-2 is allowed to cross-examine DW 1. It is for the parties to let in oral as well as documentary evidence to have proper adjudication in that matter. In the interests of justice I feel that D-2 must be given opportunity to cross-examine DW 1. If any witness is examined on the side of the 2nd defendant also. D-1 is only to cross-examine that witness. Parties must be given opportunity to put forth their case for deciding the matter on merit.
7. The learned Presiding Officer, DRT-II has rightly allowed this matter. I find no error in the order passed by the learned Presiding Officer, DRT-II, Chennai.
8. Appeal dismissed.