This Writ Petition challenged the DRAT order permitting a bank to tender an original deed of guarantee and lead fresh evidence before the DRT. The High Court dismissed the petition, holding the DRAT acted within jurisdiction under CPC applicability and Section 22 RDBFI Act.
Petition dismissed. Respondent bank directed to deposit cost of Rs.10,000/- within two weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.169 OF 2008
Kamal M.Morarka .. Petitioner
Vs.
Canara Bank .. Respondent
Mr.H.J.Thakkar, Sr.Advocate i/b M/s.Mahesh Jani
and Co. for the petitioner
Mr.N.K.Kamat for the respondent
CORAM : J.N.PATEL &
K.K.TATED, JJ.
DATED : 8TH AUGUST, 2008
P.C.:
1. Heard.
2. We propose to dispose of this petition at
the stage of admission itself.
3. The petitioners are impugning the decision
of the Debts Recovery Appellate Tribunal in the
Judgment and Order dated 3.10.07 passed in Appeal
No.145 of 2004 alongwith Misc.Application No.978 of
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2007.
4. The petitioners are original guarantors
against whom the respondents have filed an Original
Application before the DRT, Ahmedabad for
enforcement of the guarantee executed by the
appellant. Though the application of the
respondent bank in case of recovery of debt came to
be decreed in favour of the bank, the suit filed by
the bank for enforcement of the guarantee executed
by the petitioner was dismissed on the ground that
the deed of guarantee was not stamped. Aggrieved
by the said decision, the applicant bank moved DRAT
in the matter by preferring an appeal alongwith an
application seeking leave to produce the original
deed of guarantee before the DRAT. By the impugned
order, the DRAT allowed the appeal, so also the
application by permitting the respondent (appellant
bank) to tender the deed of guarantee and lead
fresh evidence in the matter which order is
challenged before us.
5. The learned counsel for the petitioner
submitted that the impugned order has been passed
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by DRAT without considering that the DRT has
considered the case in proper perspective and was
justified in denying the relief sought for by the
respondent bank for enforcement of guarantee
against the petitioner as they failed to prove that
the petitioner executed deed of guarantee in favour
of the respondent bank particularly when the
documents tendered before the DRT consisted of the
xerox copy of the deed of guarantee which was not
duly stamped but it only had the signature of the
guarantor and, therefore, it rightly rejected the
deed of guarantee, in absence of original and that
could have been the only evidence against the
petitioner.
6. It is submitted that the DRAT has allowed
the appeal as well as the application by giving
reason that in the interest of natural justice, the
bank can be permitted to tender the documents and
allowed to lead fresh evidence. It is therefore,
submitted that though the bank had sufficient
opportunities to tender the original documents
before DRT, the bank having failed to do so before
the appropriate forum, it could not have sought
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such a relief in appeal without any justification.
7. On the other hand, it is the contention of
the learned counsel for the respondent bank that
the order of the DRT does not suffer from any error
or illegality so as to call for any interference.
It is submitted that the deed of guarantee is
bilingual and now the bank having located the
original deed of guarantee, it should be permitted
to tender the same before the DRT as evidence in
support of its case. It is further submitted that
the deed of guarantee being bilingual i.e.
Hindi/English which is normally in the printed
form, the adhesive stamp is fixed on the first page
whereas the English version of the deed of
guarantee has been filled in and signed by the
petitioner who is the original respondent no.3 and
therefore, if such an opportunity is given to the
bank, it does not result in miscarriage of justice.
On the other hand, the petitioner would have a fair
chance to defend himself by raising all the issues
and contentions as to the admissibility of the
documents before the DRT and, therefore, the
petition deserves to be dismissed.
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8. We have gone through the order passed by
DRT as well as the judgment and order passed by
DRAT. In our view, the judgment and order passed
by DRAT goes to show that DRAT has taken into
consideration the provisions of Order 41 Rule 23
and 27 of the Civil Procedure Code which permits
the party to tender documents even at the stage of
appeal and lead evidence to prove the same, if
parties are able to make out a case within the
parameters provided under Order 41 Rule 27 of the
C.P.C. In this case, the original document was not
available to the bank at the time the evidence came
to be recorded and, therefore, it could not be
filed. The respondent bank had filed a copy of
the Deed of Guarantee.
9. To this, the learned counsel for the
petitioner submitted that Order 41 Rule 27 of the
C.P.C. is not applicable to the Tribunal
constituted under the provisions of the Act but
section 22 of the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993, (in short the
said Act) permits application of CPC by restricting
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applicability of its provisions.
10. We are unable to find as to how tendering
of document by party in accordance with the
provisions of CPC is not permitted by section 22 of
the said Act and on the other hand, it specifically
refers to the application of CPC in respect of
tendering of document by a party and Order 41 Rule
27 clearly permits the documents to be filled even
at the appellate stage. The party who proposes to
tender the document should be able to satisfy the
Appellate tribunal that the original document was
not available to the party notwithstanding the
exercise of due diligence.
11. In the present case, the bank has made out
justifiable reasons which have been accepted by the
Tribunal and as the whole controversy rests on the
deed of guarantee, the tribunal rightly permitted
the bank to tender the document.
12. The learned counsel for the petitioner also
expressed his doubt over the Jurisdiction of the
tribunal to remand the matter to DRT for leading
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fresh evidence in the case on the ground that no
express power to remand are given to DRAT under the
aforesaid act. This contention of the learned
counsel for the petitioner does not find favour
with this court for the simple reason that the
appeal court while dealing with the appeal vest
with the power to remand the case, if it finds that
the party deserves its case to be reconsidered in
the given facts and circumstances of the case, and
as in this case, original document was allowed to
be tendered and accepted by the appeal court, in
order to prove the same, the matter involves
recording of evidence to ascertain the execution of
the documents and whether it is properly stamped so
as to determine its admissibility. Therefore, DRAT
has not acted beyond its Jurisdiction in remanding
the matter to the DRT to decide the case in
accordance with law by permitting the parties to
lead evidence by tendering the deed of guarantee
and it does not cause any prejudice to the
petitioner who will get ample opportunity to meet
the case. Therefore, we do not find any merits in
the matter. Petition is dismissed.
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13. The impugned order also compensates the
petitioner for the inconvenience caused to them by
awarding cost of Rs.10,000/- which cost has not
been accepted by the petitioner, though offered by
the respondent bank. The learned counsel for the
respondent bank states that if directed by this
court, respondent bank would deposit the amount in
DRAT within two weeks of the date of passing of
this order. On depositing the said cost, it will
be open for the petitioner to withdraw the same, If
the petitioner chooses not to withdraw, the bank
would give set off to the petitioner in respect of
the said amount.
14. The learned counsel for the petitioner
states that this court may stay the effect and
operation of our decision. In view of the fact
that we have dismissed the petition, there if no
question of granting any stay. Therefore, the
request cannot be accepted.
( J.N. PATEL, J )
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( K.K. TATED, J )
3 issues framed by the court
Whether Order 41 Rule 27 CPC requires set of circumstances that the document was not available in the possession of the party and due diligence was exercised.
Whether the DRAT properly remanded the matter to the DRT to record fresh evidence.
Whether the DRAT committed any illegality in passing the order allowing the bank to lead fresh evidence produced original deed of guarantee.
3 provisions across 2 enactments
Kamal M.Morarka
Canara Bank
J.N.PATEL
K.K.TATED
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court