At, Debts Recovery Appealate Tribunal at Delhi
By, THE HONOURABLE MR. JUSTICE S.N.H. ZAIDI
For the Appellants: Sanjeev Bhandari, Amit Dhall, Advocates. For the Respondents: R1, Sushmita Banerjee, Advocate.
1. Since the Bank is represented by its Counsel, the caveat is discharged.
2. Heard parties’ Counsel on appeal. This appeal has been directed against the order dated 1.10.2013 of DRT-II, Delhi dismissing I.A. Nos.559/2013 filed in O.A. No.73/2007 for directing the bank to file revised/recasted statement of account as well as to file complete statement of account of ILC/FLC from 5.9.2000 to 13.8.2001.
3. Mr. Bhandari submits that though the respondent Bank is claiming amounts allegedly due on the defendants/appellants qua the credit facilities, namely, CC (Hypothecation), CC (Bill Discounting) and FLC/ILC in the O.A., but it has not filed any document qua the alleged facility of ILC. He further submits that the correctness of the entries of the statement of account filed by the Bank have been disputed by the defendant/appellants besides taking other pleas and it has been stated in very specific terms in the written statement that those entries were forged and fabricated. Mr. Bhandari also submits that because of the above circumstances, the defendant/appellants had requested the Tribunal below by filing an application to direct the Bank to file the complete statement of account and the recasted statement but it has wrongly dismissed that application only on the ground of delay.
4. Ms. Banerjee, on the other hand, submits that the O.A. is pending disposal since 2007 and the defendant/appellants took about two years to file the written statement and when after the completion of evidence of the parties the matter was listed for final arguments, then they filed the application for production of the documents with the sole purpose of protecting the disposal of the O.A. She also submits that the learned Tribunal below has considered/dealt with all the points raised by the defendants in their application in the order impugned and has rightly refused to summon the documents.
5. I have considered the submissions of the parties’ Counsel and perused the record. So far as prayer (a) regarding filing of the recasted statement of the account is concerned, the learned Tribunal below has rightly observed that in Para 18 of the affidavit filed on 21.9.2012 by the assignee company it has specifically been stated that while charging the interest no penal interest had been compounded or capitalized in view of the direction of the Hon’ble Supreme Court in the case of Central Bank of India v. Ravindra & Ors. 1 (2002) BC 150 (SC)=VII (2001) SLT 400=IV (2001) CLT 127 (SC), thus the question of requiring to file the recasted statement does not arise. The observation is in accordance with the circumstances of the case and does not arise. The observation is in accordance with the circumstances of the case and does not appear to be suffering with any legal infirmity. Moreover, the Tribunal below has also considered the necessity of summoning the statement of account for the specified period and I fully agree with the reasons given by it for declining to summon the said statement. In my opinion, if the applicant Bank has not filed the documentary evidence qua the ILC facility in respect of which claim has been made in the O.A., the Bank will suffer for its lapse/omission and it cannot be directed to file that evidence at the instance of the defendants. The correctness of the entries in the statement of account can be agitated by the defendants while finally arguing the O.A. and merely on the ground that the defendants are disputing its correctness, the Bank cannot be directed to produce the statement.
6. Mr. Bhandari has relied upon the judgments of the Hon’ble Supreme Court in Chandadhar Goswami & Ors. v. Gauhati Bank Ltd., AIR 1967 SC 1058, and of the Madras High Court in W.P. Nos.14428 to 14430 of 2008, T.P. Vishnu Kumar v. Canara Bank & Ors., decided on 7.11.2008, in support of his contentions. The law laid down by the Hon’ble Courts in those judgments being different facts and circumstances, does not apply to this appeal.
7. He has also submitted that with the view expressed in the order impugned, the Tribunal below has virtually allowed the O.A. The Tribunal below is directed not to be influenced by any view expressed by it in the order impugned while adjudicating the O.A. finally.
8. In view of the above, there appears to be no force in this appeal and it is dismissed accordingly in limine at this stage.
Copy of this order be furnished to the parties as per law and be also sent to the DRT concerned.