Dismissed

Canara Bank v. Anil Kumar Patil & Anr.

DRAT7 Jun 2022MISC APPEAL/73/2019

Case brief

AI extract

What is this about?

The DRTA dismissed the bank's appeals challenging the tribunal's refusal to let it produce 35 additional documents (some seized by CBI). The Court held the bank was dilatory, failed to explain relevance, and sought to amend pleadings late in proceedings, finding no error in the tribunal's order.

What did the court decide?

All three appeals (MA 73/2019, MA 74/2019 & MA 75/2019) were dismissed with costs.

Canara Bank versus Anil Kumar Patil & Anr. — Banking and Recovery | DRAT (2022)

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MA 73/2019, MA 74/2019 & MA 75/2019

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 7^th of June, 2022

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar CHAIRPERSON

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MA 73/2019

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[IA-3292/2016 in OA-763/2011 on the file of DRT, Bangalore]

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MA 74/2019

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[IA-3295/2016 in OA-763/2011 on the file of DRT, Bangalore]

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MA 75/2019

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[IA-3293/2016 in OA-763/2011 on the file of DRT, Bangalore]

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Between

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Canara Bank,

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Having its Head Office at No.112, J. C. Road, Bangalore – 560 112.

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Branch Office; Sedam Branch, At Sedam, Gulbarga District, Rep. by its Manager Sri. P. Lakshminarayana.

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……Appellant in MA 73/2019, MA 74/2019 & MA 75/2019

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And

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Mr. Anil Kumar Patil,

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S/o Sri. Veera Shetty, Residing at Yellalinga Nilaya, Vidyanagar, Sedum, PIN- 585 222.

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MA 73/2019, MA 74/2019 & MA 75/2019

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Smt. Sharanamma, Prop. of M/s. Prabhudeva Rural Godown, Sy. No. 586, Near Shrinivas Saradgi Cross, Sedam Road, Gulbarga – 585 102.

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…..Respondents in MA 73/2019, MA 74/2019 & MA 75/2019

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Counsel for Appellant Bank : Mr. M.L. Ganesh Counsel for Respondent No.1 : Ms. M. Udhaya Bahanu Counsel for Respondent No.2 : Mr. Shivaraj N. Arali

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C O M M O N O R D E R

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These three Appeals are preferred against a Common Order in IA 3292/2016, IA 3295/2016 and IA 3293/2016 in OA 763/2011 on the file of DRT, Bangalore.

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Brief facts leading to these Appeals are as follows:-

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Appellant herein filed OA 763/2011 for recovery of Rs.13,39,593/- together with costs and interest from Defendant Nos. 1 & 2. In the said OA, Appellant filed three Applications; i) to permit Appellant to produce additional documents ii) to permit

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MA 73/2019, MA 74/2019 & MA 75/2019

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Appellant to lead further evidence and iii) to permit Appellant to recall PW1 for marking additional documents.

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These three Applications are opposed by Respondents and Tribunal below, on a consideration of contentions, rival contentions of both parties, dismissed all the three Applications and aggrieved by which these Appeals are preferred.

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As all the Appeals arise out of the same cause of action and out of a common order, these Appeals are also decided by way of a common order.

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Appellant and Respondents filed Written Arguments and both

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Advocates reiterated contents of Written Arguments at the time of oral submissions.

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It is the contention of Appellant that they are producing 35 additional documents to prove their claim and these documents were with the Central Bureau of Investigation (CBI), Regional Office

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and Circle Office of Appellant which could not be filed at the time of

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MA 73/2019, MA 74/2019 & MA 75/2019

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filing of OA. It is further contended that as these documents were not in dominion and control of Appellant Bank, they are now produced after procuring them from CBI Office, Regional Office and Circle Office. Appellant would further contend that Tribunal below ought to have afforded fair and reasonable opportunities to Appellant Bank while allowing these three Applications.

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7. Appellant would further contend that documents now produced are important letters which are germane to decide issues raised by Respondent No.2 that there are no Produce Loan Limit to the godown of 2^nd Defendant. It is further contended that Tribunal below erred in observing that allowing all subject Applications tantamount to amendment of pleadings, filing of additional Written Statement and leading of fresh evidence. It is further contended that Appellant may be given opportunity to rebut the vexatious plea of Respondent No.2 and documents now sought to be marked would throw light on the contentions of both sides and Appeals may be allowed even by fixing some time scheduled for disposal of OA.

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MA 73/2019, MA 74/2019 & MA 75/2019

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8. On the other hand, it is the contention of Respondent No.2 that the grounds urged by Appellant Bank to set aside the impugned common Order dated 02.08.2016 is neither maintainable in law nor on facts, therefore liable to be dismissed with exemplary costs. It is further contended that Tribunal below rightly rejected three Applications and there is no illegality in the Order of Tribunal below. It is further contended that Bank with mala fide intention and to protract the proceedings filed these Applications after completion of examination of witnesses and hearing the arguments in part. It is further contended that allowing these Appeals would result in commencing the case afresh like amending pleadings, recalling witnesses of both the parties for further cross, which amounts to de novo trial. Respondent No.2 would further contend that Defendant No.2 replied to the Demand Notice of Bank way back on 13.09.2010 by which Defendant No.2 not only denied alleged continuing guarantee but also contended that Scam appears to have been committed by Bank Officials in collusion with borrowers and others.

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MA 73/2019, MA 74/2019 & MA 75/2019

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9. It is further contended by Respondent No.2 that on complaint of Defendant No.2 Crime No. 288/2010 was registered against Defendant No.1 and other Bank Officials for theft, forgery conspiracy and cheating. Respondent No.2 would further contend that Defendant No.2 has cross examined both Bank witnesses and brought on record Canara Bank, Sedam Branch was not having permitted exposure limit granted to Defendant No.2 from January, 2007 till September, 2009 and to overcome the said admission, Bank has now came forward with forged and fabricated documents. It is further contended as per Rule 9 of DRT (Procedure) Rules, 1993, all relevant documents have to be produced along with OA and as there is no whisper in the OA about these documents, Tribunal below has rightly refused the request of Bank. It is the contention of Respondent No.2 that there is absolutely no relevance of documents sought to be produced in the light of evidence already brought on record and these Applications are nothing but an effort to further drag the case.

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10. The main ground on which Bank requested Tribunal below to

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permit them to produce 35 documents is that those documents have

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MA 73/2019, MA 74/2019 & MA 75/2019

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been seized by CBI and Bank has no details of the documents seized

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by CBI as they consist of many pages i.e., nearly about 2000. According to Bank as papers seized by CBI are in bulk, it took time to find out relevant documents and as some documents that is, the correspondence was located from Regional Office, Circle Office and station Branch of Canara Bank, there was delay and the same is not intentional. One of the objections of the Respondent No.2 is that Bank has not referred to about these documents in the OA and they have come forward with these Applications after Defendant No.2 advanced her arguments to some extent in the main case.

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11. Bank along with Appeal papers filed copy of OA filed before Tribunal below. From the submissions of both sides, it is clear that Defendant No.2 gave Police report alleging fraud and irregularities against Bank Officials in collusion with borrowers, and Bank lodged a complaint with CBI against borrowers and also against Defendant No.2, and CBI, after investigation exonerated Defendant No.2 by citing Defendant No.2 as witness on behalf of prosecution. It is also

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not in dispute that Bank lodged a complaint with CBI on 17.01.2011. As seen from copy of OA filed along with Appeal

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MA 73/2019, MA 74/2019 & MA 75/2019

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papers, it appears OA is prepared on 05.09.2010, which means by

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that time, all the documents, correspondence etc., are within custody of Appellant Bank, because seizure of documents by CBI would be only on or after 17.01.2011. As rightly pointed out by Advocate for Respondent No.2, there is no whisper of any kind in pleadings of OA with reference to these documents which are now sought to be produced on the ground that they were seized by CBI. When Bank prepared its OA on 05.09.2010, its contentions that documents now sought to be produced are not referred to in the OA on account of their seizer cannot be accepted.

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12. Whenever a party approaches with a request to receive additional documents, minimum expected is to explain relevancy of those documents with reference to the issue in dispute in the Affidavit filed in support of Application. But, as seen from the Affidavit filed in support of all these three Applications, there is absolutely no mention as to how the proposed documents are relevant. In fact, it appears that even some marked documents are also sought to be produced, which are among the 35 documents,

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which shows the diligence of Bank. When Bank specifically

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MA 73/2019, MA 74/2019 & MA 75/2019

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contended that these 35 documents are not in the dominion and control of Bank at the time of leading evidence then, how some of them are marked and exhibited as documents for which there is absolutely no answer from Bank.

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13. Tribunal below clearly recorded a finding that documents No. 13 to 17 and document No.20 have already been produced by Applicant Bank and got marked as Exhibits A3 to A7 and A8. It is further recorded that out of 35 documents, document Nos.5 to 10, 18, 19, 20, 22, 25, 26, 29, 30, 31 and 35 have not been obtained

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from CBI and they are said to be in the Regional Office and Circle Office of the Appellant Bank.

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14. When the records indicate like that, it is expected from Bank to clarify these aspects, at least in the Appeal, but Appellant, except contending that opportunity was not given to lead further evidence, failed to give proper convincing reason for not producing these documents at the earliest stage. Tribunal below has elaborately discussed each and every aspect and recorded a definite finding which is based on material available on record. Tribunal below took

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MA 73/2019, MA 74/2019 & MA 75/2019

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all pains to examine thoroughly including the aspects elicited from witnesses during cross examination and recorded findings.

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15. I do not find any wrong in the Order of Tribunal below, particularly, when Appellant came forward with these Applications after Defendant No.2 addressed final arguments in the main case to some extent. On a overall scrutiny of entire material, I am of the considered view that there are absolutely no grounds to interfere with well reasoned order of Tribunal below.

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16. For above reasons, all the three Appeals MA 73/2019, MA 74/2019 & MA 75/2019 are dismissed with costs. All pending IAs, if any, stand closed.

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[Dictated to Athistamani, PS transcribed by her, corrected, signed and pronounced by me in open court, this 7^th of June, 2022]

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Sd/- [ Justice S. Ravi Kumar] CHAIRPERSON

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MA 73/2019, MA 74/2019 & MA 75/2019

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Canara Bank v. Anil Kumar Patil & Anr.

Case brief

What is this about?

What did the court decide?

Canara Bank v. Anil Kumar Patil & Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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