The Tribunal allowed an appeal by debtors against an order denying them permission to cross-examine the bank's witnesses after their written statement was forfeited, relying on Supreme Court precedents.
The impugned order dated 05.03.2025 is set aside and the Appellants are permitted to cross-examine the Respondent's witnesses.
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.
IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA (CAMP AT DRT, HYDERABAD)
HON’BLE MR.JUSTICE ANIL KUMAR SRIVASTAVA, CHAIRPERSON
Miscellaneous Appeal No.32/2025
(Arising out of orders in I.A.3042/24,3043/24 & 3044/24 in O.A.702/2019)
Bank of India Rep. by its authorized Officer Having its head office at Star House, C-5, G Block, Bandra Kurla Complex, Bandra East, Mumbai & Branch amongst other places at Madhapur branch, Plot No.38, D.No.1-98/11/3, Next to Amantran Hotel, Arunodaya Colony, Madhapur, Serilingampally, Hyderabad …. Respondent For the Appellants : Sri V.Ravinder, Ld.Advocate For Respondent : Sri M.Md.Rafiq, Ld.Advocate JUDGEMENT : On 23rd June, 2025
THE APPELLATE TRIBUNAL:
Heard Ld. Counsel for the parties and perused the record.
The instant appeal is arising out of the impugned judgement and order dt.05.03.2025 passed by Ld.DRT-II, Hyderabad in O.A.702/2019 filed by Bank of India whereby I.A.3042/24 to reopen the evidence of AW-1 for the purpose of cross examination, I.A.3043/24 to recall AW-1 and I.A.3044/24 to permit the
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petitioners i.e. defendants to cross examine AW-1, are dismissed by the Ld.DRTII, Hyderabad on the ground that right to file their written statement has already been forfeited. Hence the defendants have no right to cross examine the Bank witnesses.
Feeling aggrieved, the Appellants preferred the appeal.
Ld. Counsel for the Appellants would submit that although, the order forfeiting the right to file written statement was challenged by the Appellants/defendants, but the same was declined by the Ld.DRT-II, Hyderabad. The appeal before DRAT, Kolkata was also dismissed and the Writ Petition No.22920/2024 against the order of the DRAT, Kolkata was also dismissed by the Hon’ble High Court for the State of Telangana at Hyderabad. However, it is submitted that the Appellants have right to cross examine the bank witness . Reliance is placed upon the judgments of Apex Court in Kanchhu Vs.Prakash Chand & others in Civil Appeal No.5319/25 and as well as Nanda Dulal Pradhan & Anr. Vs. Dibakar Pradhan & Anr. in Civil Appeal No.4151/2022.
Per contra, Ld.Counsel for the Respondent Bank submits that the O.A. was filed in the year 2019 wherein the defendants/Appellants put in appearance after three years and thereafter, their right to file written statement was forfeited. Now, they cannot cross examine the Bank witness as their right to file written statement has already been closed.
As may appear from the records vide order dt.28.10.2022, right to file written statement by the defendants was forfeited by the Ld.DRT-II, Hyderabad. Feeling aggrieved by the said order dt.28.10.2022, Misc.Appeal Dy.No.546/2024 was filed by the Appellants before DRAT, Kolkata which was dismissed at admission stage vide judgment and order dt.11.07.2024.
Against the judgment of DRAT, Kolkata, Writ Petition No.22920/2024 was filed by the Appellants before the Hon’ble High Court for the State of Telangana at Hyderabad which was dismissed by the Division Bench on 22.08.2024. Thereafter, the Appellants filed three I.A.s, 3042/24,3043/24 & 3044/24 seeking permission to cross examine the Bank witnesses.
No doubt, when the right to file written statement was forfeited, still the defendants have a right to proceed further in the O.A. and to defend their own
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rights as has been held by the Apex Court in Kanchhu Vs.Prakash Chand & others & Ors (supra), wherein it is held that
“the limited right that the defendant, set exparte, would have is confined to cross–examining the plaintiff’s witnesses. The effort has to be directed towards demonstrating that they are not speaking the truth and, thereby, demolish the case of the plaintiff. Essentially, therefore, in such a case, the defendant has to convince the court that the case put up by the plaintiff is so false that the court ought not to accept it ”.
Further, in the case of Nanda Dulal Pradhan & Anr. Vs.Dibakar Pradhan & Anr. in Civil Appeal NO.4151/2022 (supra), Hon’ble Supreme Court held that
“ although the right to file written statement is closed but the defendants will be permitted to participate in the suit and cross examine the witnesses”
Accordingly, even if the O.A. was proceeded in exparte, but the Appellants herein still have a right to cross examine the bank witnesses which could not be denied to the Appellants herein. Accordingly, the impugned order dt.05.03.2025 suffers from material irregularity which is liable to be set aside. Accordingly, the Appeal deserves to be allowed.
O R D E R
Appeal is allowed. The impugned judgement and order dt.05.03.2025 passed in O.A.No.702/2019 is set aside. Ld.DRT-II, Hyderabad shall permit the Appellants herein to cross examine the witness of the Respondent in accordance with law.
Interlocutory Applications pending if any, shall stand disposed of.
Copy of the order be supplied to the Appellants and Respondents and a copy shall also be forwarded to the concerned DRT and uploaded in the official website.
File be consigned to Record Room.
Order dictated, signed and pronounced by me in the open Court on this the 23rd day of June, 2025.
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(Anil Kumar Srivastava, J) Chairperson
Dated: 23.06.2025
2 issues framed by the court
Whether defendants whose right to file written statement was forfeited can still cross-examine the bank witnesses.
Whether the impugned order dismissing applications to cross-examine witnesses suffered from material irregularity.
M/s Neelam Enterprises Rep. by its Proprietor N.Ghanshyam Chanakya
Bank of India
Anil Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
