At, Debts Recovery Appellate Tribunal at Delhi
By, THE HONOURABLE MR. JUSTICE RANJIT SINGH
For the Appellant: Pallav Saxena, Advocate. For the Respondent: None.
1. Application making prayer to seek cross-examination of Bank's witness has been declined by the Tribunal below. Aggrieved against the same, the appellant has filed the present appeal.
2. Heard the Counsel at great length who, in the course of arguments, has not only referred to the contents of application, but has taken me to various other documents to press his pleas for cross-examination of the witness.
3. The Tribunal below while rejecting the prayer for cross-examination has found that the appellant has not taken any material ground in support of her plea to seek permission to cross-examine the witness. As per the Tribunal below, in the application it is alleged that the witness had made false statements and false allegations in the affidavit and, therefore, she would have to be subjected to the cross-examination. The Tribunal found this to be a bald allegation without specifying as to what false allegations were made in the affidavit. As per the Tribunal, the appellant also failed to demonstrate the disputed facts which she wanted to test by way of cross-examination.
4. The Counsel for the appellant has referred to various documents to show the cause and reason for which there is a need to cross-examine the witness and also to show that these facts had been duly demonstrated in the application itself which the appellant had filed before the Tribunal below. The Counsel would first refer to the averment in the application vide which this prayer was made. In Para 8 of the application, it is stated that the facts pleaded in the written statement are required to be established by means of cross-examination and also by confronting the witness with various documents including but not limited to the records/documents/correspondence of the applicant/plaintiff and also confronting him with various false allegations.
5. The Tribunal below is justified in observing that these are bald assertions. Averments general in nature are made without specifying in what respect the witness had deposed falsely for which the witnesses.were required to be confronted with documents and which aspect is required to be elaborated and proved by means of cross-examination. Even in para 13 of this application (referred to by the appellant), it is stated that cross-examination of the witnesses warranted and necessary in the peculiar facts and circumstances of the present case to prove and establish the falsity of the case set up by the applicant/plaintiff. This averment also does not specify in any manner which aspect is false which would be required to be tested by way cross-examination.
6. To correlate and to substantiate the averment made in the application, the Counsel would refer to part of written statement filed by the appellant. In para 3.7 of the written statement, it is alleged that the financial assistance was sanctioned in 1990 and not in 1992 as was claimed in the Original Application. This fact can easily be shown, if it is so, with the support of the documents which must be or ought to be in possession of the appellant.
7. In para 3.9 of the written statement, it is stated that when other institutions had confirmed the envisaged financial assistance towards establishing of the project, which, in fact, was not loan, but equity participation in the project, and after the promoters had brought in the required equity of substantial amounts, and had committed themselves financially and completed all formalities, then RCTC arbitrarily and without justifiable reasons sought to renege from the earlier sanction of financial assistance to the extent ofL20 lac. How these facts can be established by cross-examination otherwise cannot be made out. Even the plea that transaction was not a simple transaction of money lending and the institutions and the respondent/applicant had assured and promised the appellant of their support, guidance, participation and involvement in the management of the company, especially in matters technical/managerial appointments and appointments of selling agents and such relationship was more in the manner of "handholding and/or joint venture, again is an assertion which may be self-serving. If there is any evidence in support of the same, then it can independently be led before the Tribunal below for which there is no need for cross-examination of the witness.
8. As per the appellant, the respondent-applicant is alleged to have made a misrepresentation that there was no separate Equity Subscription Agreement (ESA) executed and that the application for shares and the alleged endorsement of acceptance to constitute the purported agreement, which is specifically denied by the appellant. It is then stated that these contentions are clearly borne out inter alia by referring to a letter dated 22.6.1992. If this fact is revealed from this document, then obviously there cannot be any need for the cross-examination of this witness. This document has already been annexed with the reply.
9. The above noted reasons apparently, in my view, would not justify the prayer for cross-examination of the witness. The Tribunal below has also considered the reasons given in the application for which even the elaborate written arguments were submitted.
10. The Tribunal below has taken note of the facts in detail that the appellant had approached the respondent FI with the request of financial assistance by way of direct subscription to equity shares of respondent No.3 company. Reference is made to minutes of meeting of respondent No. 3 company dated 7.7.1992 whereby it was informed that Risk Capital and technology Ltd, had withdrawn the sanction of loan assistance ofL20 lac and therefore further arrangement was made with RCTC for participation in the direct subscription of the equity capital. The board had authorised the appellant Ms. Aruna Sanghi and Ms. Neerja sharma to a convey the approval of the company and to complete the other formalities. The respondent company had also accepted nominee Director of RCTC. There is even an Equity Subscription Agreement of RCTC which was endorsed and accepted by Ms. Aruna Sanghi on behalf of the company Guarantees of buy back shares within the time agreed to by the parties. She, however, failed to buy back the shares. She sought three years time but still failed to comply with the requirement. In this background the prayer by the Counsel for the appellant that by subscribing to the shares they became principal borrower cannot be accepted.
11. It may not be very appropriate to make any observation on the merits of the pleas which ultimately are to be considered and decided by the Tribunal below. This aspect has been referred to since the Counsel had made submissions in this regard even now in the appeal no aspect has been shown for which cross-examination of the witness was needed. The submissions made are general in nature on the lines of plea raised by the appellant to oppose the O.A. filed by the respondent. I have not been able to appreciate in any manner any aspect for which permission for the cross-examination was needed. I find that the order passed the Tribunal below is well reasoned and does not call for any interference.
12. Needless to mention that the need for cross-examination in a proceeding under the RDDBFI Act has been well settled by the judgment of the Hon'ble Supreme Court in the case ofUnion of India and another v. Delhi High Court Bar Association and Others II (2002) BC 194 (SC) : II (2002) SLT 556 : 96 (2002) DLT 726 (SC) : (2002) 4 SCC 275.
The appeal is accordingly dismissed in limine.