w w w . L a w y e r S e r v i c e s . i n

Bank of Baroda v/s Precision Forgings and Others

    R.A. 275 of 2003

    Decided On, 03 November 2004

    At, Debt Recovery Appellate Tribunal At Allahabad


    G.C. Malhotra

Judgment Text

The Judgment was delivered by : HON'BLE JUSTICE P. K. DEB (CHAIRPERSON)

1. This appeal has been preferred against the judgment and Order dated 8th January, 2003 passed by the then Presiding Officer of the Debts Recovery Tribunal, Allahabad in T.A. No. 125/2000 whereby and where under the Original Application/Suit filed by the appellant-plaintiff/applicant for recovery of debts from the respondent-defendant has been dismissed, although the original application was running ex-pate.

2. The brief facts of the case are as follows :

The appellant as plaintiff filed Original Suit No. 313 of 1989 in the Court of Civil Judge at Allahabad arraying the respondents as defendant Nos. 1 to 4 for realization of Rs. 25, 63, 678.09 together with interest pendente lite and future also thereon @ 16.5% per annum till the recovery of the full and final amount. As per the appellant-Bank further relief has been claimed for recovery of the amount on the sale of the hypothecated property, details of which have been provided in the Schedule attached with the application/plaint together with cost of the suit/application. While the suit was pending before the Civil Judge Allahabad, Tribunal was constituted under Section 3 of the at Jabalpur which had the jurisdiction of the State of U.P. also, the suit was transferred to DRT, Jabalpur and when a separate DRT was established for the State of U.P. at Allahabad, the same was transferred to the DRT, Allahabad. As per the case of the appellant-Bank, defendant No. 1 (respondent No. 1) was carrying business of manufacturing Gas Cylinder Valves at Allahabad and defendant No. 2/respondent No. 2 was the sole proprietor of that business. He approached the Bank for financial assistance and Rs. 90, 000/- was sanctioned towards Cash Credit Limit on 4th May, 1976 @ 6% over Reserve Bank of India rate subject to minimum of interest 15% per annum with quarterly rest. In the Bank loan defendant Nos. 3 & 4 joined as Guarantors for the loan advanced. The Original defendant No. 4 T.P.L. Sinha died and his wife was included. On further request of the defendant No. 2 Cash Credit (Hypothecation) Limit of Rs. 30, 000/- was granted. Various loan documents have been executed as per the banking regulations on condition of repayment with interest @ 6% over & above RBI rate. Further facilities towards the loan amount had been granted time to time by the Bank, details of which had been mentioned in the plaint and also in paragraphs 6, 7, 8 to 12 of the impugned judgment and for brevity the details of which have not been reiterated in the present judgment. The defendants had acknowledged the debts time to time by executing different acknowledgement documents but when the defendant failed to repay the bulk of loan amount, the appellants had no other alternative but to file the suit as mentioned above claiming the debt amount with interest pendente lite and future. In the suit which continued for a long time before the Civil Judge, the defendants tried to evade repayment and dilatory tactics have been taken and after a long delay some written statements were filed which were accepted on a pre-condition of payment of cost, but in the Civil Court alsb it appears that the defendants were not vigilant on day to day proceedings of the suit.

3. After the suit was transferred to DRT, Allahabad, notices were sent to the defendants by registered post but as they were evading summons, lastly publication was made in the local Newspaper but then also defendants did not appear and the suit proceeded ex-parte on an order passed by the learned Presiding Officer, DRT, Allahabad. Two officials of the Bank namely Shri Nandan Srivastava, Manager, Main Branch, Allahabad and Ashutosh Lal, Manager, Bank of Baroda had filed affidavits supporting the claims and also exhibited documents of loan executed by the defendants-respondents in favour of the Bank time to time. As the suit was running ex-parte, on the basis of the documents filed and the evidence adduced through affidavit, learned Presiding Officer went on passing the ex-parte judgment. Accordingly, the impugned judgment was passed dismissing the claims of the appellant-Bank, hence the present appeal.

4. In the appellate Tribunal also, defendants evaded notices and as such appeal-notices were published in the Newspaper and the service was construed by the Tribunal to be satisfactory and then after calling for the records from the DRT, Allahabad, the appeal was heard ex-parte.

5. The claim of the appellant-Bank has been dismissed by the learned Presiding Officer, DRT, Allahabad on two grounds first, that the appellants failed to prove their case by filing proper affidavit as regards their claims, second, as the documents of acknowledgement of the debts of the defendants have not been proved specifically by the appellants, the claims remained as barred by limitation. The point for determination in this appeal is; whether the Tribunal was justified in dismissing the claims of the appellant on the grounds as stated in the impugned judgment. Before entering in criticizing the impugned judgment, it must be stated that the claims of the appellant-Bank had not been challenged or denied by the defendants as the suit was running ex-parte. For and on behalf of the appellants who responsible officers of the appellant-Bank had filed affidavits in lieu of oral evidence as ordered by the Tribunal supporting the claims. The first affidavit has been sworn by Srinandan Srivastava who had given details as to how the defendants had taken loan and time to time the same had been extended as per the request made by the defendants and also had stated as to how the documents of loan had been executed by the defendants in presence of the Bank authorities. Second affidavit is of one Mr. Ashutosh Lal, who has not only supported the claims of the Bank but has also exhibited the documents of loan as contained in paragraph 29 of the affidavit. In that affidavit as per paragraph 29, the letters of acknowledgement had been exhibited as Exhibit No. A/24, A/25, A/26 & A/27. It is true that in the paragraph 29, the details of acknowledgement have not been stated, perhaps because those documents had long been filed along with the plaint itself and that those documents with all their formats and contents have been exhibited. Regarding the loan amount and its balance remaining outstanding had been specified in paragraph 28 of that affidavit of Mr. Ashutosh Lal, Manager of the Main Branch of the Bank of Baroda, Allahabad.

6. Learned Presiding Officer of the Tribunal had accepted the affidavit of Srinandan Srivastava as it was in proper form but the affidavit of Ashutosh Lal have been kept outside for consideration as the said affidavit suffered from the technical defects. According to the learned Tribunal, as per the impugned judgment, the said affidavit of Ashutosh Lal cannot be accepted as the said affidavit was not conforming to the provisions of Section 8 of the . On close scrutiny of that affidavit's swearing and authentication portion, there is some technical defect on the face of it as the same did not conform to Section 8 (1) (e) of the wherein a notary is required to command oath to or take affidavit from any person. Here the affidavit has been taken by the Notary by filling up and signing the vacant portion of the Rubber Stamp used for the purpose and the same did not mention of commanding of oath. It appears that the Rubber Stamp used for an instrument for verification and authentication and certification as required under Section 8 (i)(a) of the has been used and not the Rubber Stamp as required under Section 8 (i) (e) of the has been used as has been done in taking the affidavit of Srinandan Srivastava. This was only perhaps due to oversight, but for that reason alone the learned Presiding Officer, DRT, Allahabad ought not to have rejected the affidavit as a whole as under Rule 12 (6) of the DRT Rules it is para materia almost same and similar as that of Order XIX of the empowers the DRT to take evidence on any particular fact or facts to be proved by affidavit but for that also sufficient reasons must be recorded in taking such proof of facts or fact by affidavit. DRT's power remains open to take evidence of witnesses if at any point of time he finds that such oral evidence is necessary for coming to a just decision in the case and that the natural justice is not being flouted. Moreover, in the present case it was running ex-parte wherein the claims of the appellant-Bank had never been objected to or denied by the defendants-borrowers. When the affidavit was filed by the witnesses of the plaintiff-Bank as per order of the DRT, then such affidavit ought to have been scrutinised first before using them for the purpose of hearing. But after the hearing is closed on such technical grounds, the affidavit ought not to have been rejected rather the Tribunal should have asked the plaintiff to produce the witness who had sworn the affidavit to be present in the Court and to adduce evidence orally or to file fresh affidavit. This is not a laxity to be given to the claimant Bank rather when the public money is involved, the Court should not be so much sticking to the technicalities rather should be more broadened eyed to discharge public duty.

7. If the letters of acknowledgement are taken into consideration by way of affidavit as exhibited by Ashutosh Lal, then there would have not been recording of dismissal of the suit/ application as a whole. When the letters of acknowledgement are on the records itself, then a further chance ought to have been given to the party concerned for coming to a just decision in the case. If those letters of acknowledgement are there, then the suit does not come within the full purview of bar of limitation. But definitely some latches are there on the part of the plaintiff-Bank also. They ought to have scrutinised, the affidavit alleged to be sworn before the Notary at the time of filing the same and insisting on using the same for the hearing of the case. On perusal of the impugned judgment, I am of the view that the then Presiding Officer of the DRT, Allahabad for some reasons or other was in hurry to record the dismissal of the suit, even when there is no denial of the claims of the appellant-Bank. As the records are not totally in order regarding adducing of evidence and the affidavit of Ashutosh Lal appears technically defective, there is no other alternative but to allow the appeal and to send it on remand for fresh disposal after giving an opportunity to the applicant-Bank to adduce further evidence in support of their claims.

8. In the result the appeal is allowed but without cost and the dismissal order recorded in T.A. No. 125 of 2000 is hereby set aside and the case is sent back to the DRT, Allahabad for fresh disposal within three (3) months next from the date of receipt of the records from this Appellate Tribunal giving further opportunity to adduce more evidence by the applicant-Bank in support of their claim.