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Chunni Fashion v/s Edelweiss Asset Reconstruction Co. Ltd.

    Misc. Appeal No. 223 of 2018

    Decided On, 15 February 2019

    At, Debts Recovery Appellate Tribunal at Delhi

    By, THE HONOURABLE MR. JUSTICE P.K. BHASIN
    By, CHAIRPERSON

    For the Appellant: Anshuj Dhingra, Nitika Khanna, Advocates. For the Respondent: R.P. Aggarwal, Sonali Rastogi, Advocates.



Judgment Text

The appellant Firm is one of the defendants in the Original Application (O.A.) filed respondent No. 1 Bank against it and some others under section 19 of the Recovery of Debts Due To Banks And Financial Institutions Act, 1993 ('RDDBFI Act' in short). The respondent Bank had filed the O.A. in the year 2013 for recovery of Rs. 15,85,33,889/- with interest on account of outstanding dues in the loan accounts of appellant Firm in which it had availed of different financial facilities from time-to-time starting from 2005 prior to which Punjab and Sind Bank was the creditor and then Indian Bank had taken over the loans. Indian Bank then assigned the loan accounts of the appellant in favour of respondent No. 1.

2. In the O.A. filed way back in the year 2013 the parties had completed their pleadings and had also adduced evidence whatever was to be adduced and when the O.A. reached the stage of final arguments appellant had moved one application for a direction to the applicant-Bank to produce................ 'complete, detailed and comprehensive statement of accounts of all the Banking facilities i.e. OCC, PC, MTL-I, MTL-2, MTL-3, MTL-4, MTL-5, MTL-6, MTL-7 and MTL-8 under which the O.A. applicant has claimed money in the present proceedings from the date of grant of facility and till the date of grant of facility and till the date of filing of the instant O.A. ' This direction was sought inter alia on the averments that1 Indian Bank, who was the lender to the present defendant No. 1 borrower had filed the instant O.A. under Section 19 of the RDDBFI Act, 1993 for the claims there under only on the strength of and premise of a statement of account placed and marked as Annexure A-12 starting from Page Nos. 437 to 454 of the paper book. The said Annexure pertains to that of an Account No. 924914685 which was actually a current account maintained by the respondent No. 1 with Indian Bank. The O.A. applicant purposely and intentionally did not file the statement of account of all the facilities which have been sanctioned and have been referred by the applicant in Paras 5.4 and 5.7 of the O.A. The defendants have filed the written statement and have raised specific play that the applicant has failed to comply with the mandatory provision of Rule 9 of the DRT (Procedure) Rules, 1993 and the statement of accounts is not in consonance with the amount which has been claimed by the applicant in each of the facilities and totalling the amount as already claimed in the O.A.'. This application No. 1576/2017 has been rejected by the learned DRT vide impugned order dated 21.4.2018 relevant paras where from are re-produced below:

"2. Briefly, the case of the applicants/defendants for the purpose of filing of this application is that the original lender Indian, which has now assigned the debt to Edelweiss Asset Reconstruction Company Ltd. (for short, the applicant (FI) and has been substituted in its place had filed present Original Application on the strength and premise of Statement of Account (Annexure A-12 starting from Pages 437 to 454 of the paper book) pertaining to Account No. 924914685 which was actually a current account and the Indian Bank (for short, assignor Bank) intentionally did not file the Statement of Account of all the facilities which were sanctioned and referred to in Paras 5.4 and 5.7 of the O.A. The defendants/applicants have filed written statement and have raised a specific plea in this regard and further that the applicant herein had wrongly charged a total sum of Rs. 8,52,92,739/- to the accounts of the applicants/defendants and for the said reasons, the assignor Bank did not file the complete statement of account of all the facilities sanctioned to defendant No. 1. It is further submitted that the assignor Bank was retaining the FDRs and interest on them and it did not give details of the said FDRs and interest accrued thereon. Referring to the decision of the Hon'ble Apex Court in the matter of M/s. Mardia Chemicals Ltd. vs. Union of India, it has been submitted that the assignor Bank was duty bound to act fairly in good faith and there has to be fair dealing between the parties and the Financial Institutions or not free to ignore performance on their part of obligation as to party to the contract. It is further the case of the applicants/defendants that despite categorical objections taken by them, the assignor Bank or the applicant FI failed to file a details and comprehensive Statement of Account as per Rules even with evidence affidavit filed on April 29, 2015 for just and proper adjudication of the claim raised in the present O.A. Even despite directions of this Tribunal, the applicant FI vide its affidavit dated August 26, 2016 has placed on record the copies of the alleged statement(s) for the various facilities which have been exhibited as AW-2/A1 to AW2/A9. The defendants/ applicants further submit that the account of defendant No. 1 has been classified as NPA without disclosing any reason despite the fact that they have deposited an amount of Rs. 23,38,20,440/- whereas the assignor Bank has made transfer entries amounting to Rs. 8,52,92,739/-. They had raised objections dated June 12, 2011 against the amount demanded through notice under Section 13(2) of the SARFAESI Act stating that it was highly exaggerated, but the same were rejected by the assignor Bank on June 24, 2011. Thereafter, the applicants/defendants sent a communication dated 11th July, 2011 to the assignor Bank stating therein that they had specifically pointed out the fact that the original applicant Bank had not disbursed an amount of Rs. 8,52,92,739/- and the applicants/ defendants have already deposited a sum of Rs. 23,28,20,440/- and in addition to it has been suppressed that the Bank has already received a sum of Rs. 14,76,068/- on 10th May, 2011 and the Bank has no right to claim the same amount under Section 13(2) of the SARFAESI Act as the notice itself became bad in law. It is further submitted that the original applicant Bank replied to the communication dated 11th July, 2011, which was received on August 12, 2011 but without waiting for the receipt of the said communication, the original applicant Bank obtained symbolic possession of the property on 10th August, 2011. It is further alleged that after issuing notice the assignor Bank had received a sum of Rs. 26,32,517/- on different dates, but the assignor Bank purposely suppressed that fact that it has already received a sum of Rs. 14,76,068/ - on May 10, 2011. However, the applicant FI, which is the successor-in-interest of the assignor Bank, has failed to file any Statement of Accounts of the facilities. It is further submitted that fraud perpetrated by the assignor Bank is also palpable from the recent Statement filed in the present O.A. Giving details in Para 18 of the present I. A., regarding the restructured facilities a carried out by the assignor Bank, it is submitted that restricting of the accounts was being carried on the advice, instructions and requirement of the assignor Bank and the applicant/ defendant No. 1 was continuously serving the said facilities under a bona fide belief that the restructuring of the facilities, inter se was being done as a genuine requirement. Ultimately, it has been prayed that since the applicant FI has manifestly failed to place on record the complete documents on record and has filed a fictitious original application seeking recovery of the claims there under it is expedient to direct the Bank to produce the documents as detailed in the prayer of the present I.A.

3. The applicant FI, respondent herein, has filed reply this application contending that he present application being filed on false, flimsy and frivolous grounds is liable to be dismissed with exemplary costs. After the case was fixed for final arguments on November 6,2015 the defendants went on filing applications one after the other and even the present application is barred by the principle of res judicata as the applications being IAs No. 1185 and 1186 of 2016 were filed on the same grounds on which the present application has been filed. Furthermore, the defendants are adopting delaying tactics in disposal of the present case. As per the answering respondents herein i.e. the applicant FI, it has already filed Statement of Accounts vide Diary No. 7405 dated 29th August, 2016. In view of the above facts and circumstances, it is submitted that the present application is absolutely devoid of any merit and is liable to be dismissed with cost.

5. While addressing arguments, learned Counsel for the applicants/defendants has vehemently contended that the assignor Bank or the applicant FI has failed to file a detailed and comprehensive statement of accounts for all the facilities and the relevant documents, and, as such, the assignor Bank and the applicant FI be directed to produce the same for proper and effective adjudication of the present O. A.

6. On the other hand, learned Counsel for the applicant FI repelling the contentions of the learned Counsel for the applicants/defendants has strenuously canvassed that the present application is barred by the principle of res judicata as earlier this Tribunal has already dismissed the application filed by applicants/defendant in this regard. It is further contended that the present application has been filed with a mala fide intention to delay the disposal of the O.A., which was filed in the year 2013 and is at the stage of final arguments as both the parties have already led their respective evidence and exhibited the documents. He has accordingly prayed for dismissal of the application with costs.

7. After having considered the rival contentions of learned Counsel for the parties, I am of the considered opinion that the present application bearing I.A. No. 1576 of 2017 has no merit and the same is liable to be dismissed simply on the ground that in the present case, which is an old matter and is pending adjudication since 2013, both the parties have already filed their respective evidence and exhibited documents which have been taken on record. The applicant Bank has also exhibited its documents and the case is now at the stage of final arguments. This O.A. pertains to the year 2013 and it seems that the present application has been pressed into service only to delay the proceedings. The proceedings under the SARFAESI and RDDBFI Acts are summary in nature and such cases are to be decided on the basis of affidavits and documents filed by the parties. As both the parties have already filed their affidavits canvassing their respective case, the same have to be appreciated at the time of final hearing. Even otherwise, a perusal of the order dated 28th March, 2017 passed in IAs Nos. 1185 and 1186 of 2015 reveals that though the prayers in the said applications were for issuing directions against investigation of the affairs of the assignor Indian Bank and for cross-examinations of the witness of the applicant FI, but body writing of the said applications was that the applicants/defendants and also prayed for directing the assignor Bank/applicant FI to file the loaning/ security documents as well as complete and comprehensive Statement of Accounts. The said applications were rejected vide order dated 28th March, 2017 which has attained finality as a perusal of the O.A. record reveals that no appeal was preferred against the same. Furthermore, as is seen from the reply and the O.A. record, vide Diary No. 7405 dated 29th August, 2016, the applicant FI has filed Statement of Accounts, namely, OCC Account, PC account and MTL-1 to MTL-8. The applicants/defendants have not filed any rejoinder to say that which of the entries in the Statements of Accounts are wrong. I see no bona fide in the present application and it is observed that the same has been filed just to delay the disposal of the present recovery proceedings.

8. In view of the above discussion, I see no merit in the present application bearing 1. A. No. 1576 of 2017 filed by the defendants and the same is dismissed with costs of Rs. 15,000/- payable to the applicant FI."

(Emphasis laid)

4. Learned Counsel for the respondent had submitted that the appellant has been unnecessarily insisting upon production of statements of accounts ignoring the fact that the respondent No. 1 is not basing its claim merely on the basis of balance in the statement of accounts but in fact its claim is based upon many other documents including acknowledgement of debt by the appellant on different occasions including the one made on 22.1.2010 for a sum of Rs. 11,03,26,354.00. It was also pointed out by the Counsel for respondent No. 1 that the accounts of the appellant were declared as NPAs on 31.3.2011 when a sum of Rs. 12,96,43,410.89 was due to be recoverable from the appellant and as on 20.12.2012 a sum of Rs. 15,85,33,889.00 was recoverable from the appellant and for that amount along with interest thereon at contractual rates with monthly rests from the date of the filing of O.A. till realisation, the O.A. came to be filed.

5. It was submitted that the appellant was having different accounts and the total sum due under all those accounts was being claimed and the O.A. was being pursued on the basis of documents including acknowledgement of debt by the appellant delivered to respondent No. 1 at the time of assignment of debts by Indian Bank in favour of respondent No. 1. Learned Counsel for the appellant, however, kept on submitting that in case full and comprehensive statements of accounts in respect of all the accounts which were being maintained by Indian Bank are produced the appellant would be able to show that there have been innumerable fictitious entries in the accounts and unauthorised transfer of monies from one account to another and the Bank had raised an inflated claim against the appellant and the guarantors.

6. He cited one judgment dated 7.11.2008 of Madras High Court in W.P. No. 14428 of 2008, T.P. Vishnu Kumar vs. Canara Bank & Ors. in support of the submission that in such like cases the Banks cannot escape from the responsibility of producing true statements of accounts and contend that at the most the Tribunal will can raise adverse inference against it for non-production of documents at the time of pronouncement

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of final verdict in the O.A. and it has to produce the demanded statements of accounts. 7. From a reading of the impugned order it becomes evident that the appellant can be said to be bent upon persisting with the prayer for production of statements of accounts other than those which have already been brought on record by the respondent No. 1, which is not the original O.A. applicant but an assignee of Indian Bank and as an assignee has taken the stand that whatever documents/statements of account it had in its possession have already been produced before the DRT. However respondent cannot be compelled to produce what it does not possess. 8. Whether or not on the basis of the pleadings and documentary evidence, including letters of acknowledgement of debt signed by the appellant, on which its claim is based the respondent No. 1 will succeed in getting a recovery certificate issued in its favour from DRT will be decided by the DRT while finally disposing of the O.A. The learned DRT has rightly observed that the defendants/borrowers are preventing that stage to reach by filing one application after another ever since the O.A. reached the stage of final arguments. 9. The appellant had made the same prayer earlier also by moving an application in which it had also sought a direction for an investigation into the affairs of Indian Bank. That application, reference to which is made in the impugned order also, was rejected and has attained finality since it was not challenged by the appellant. Thus, finding no merit in this appeal the same is dismissed.
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