Case Note & Summary
The appellants, M/s Perfect Polybaags Private Ltd. and its directors, were defendants in Original Application No.239/2011 pending before the Debt Recovery Tribunal (DRT), Bengaluru, filed by Canara Bank for recovery of debt. During the proceedings, the appellants filed Interim Application No.3685/2013 seeking permission to cross-examine AW-1, the bank's witness. The DRT rejected this application by order dated 25.11.2013, noting that the appellants had not filed an affidavit by way of evidence as required under Rule 12(6) of the Recovery of Debts Due to Banks and Financial Institutions (Procedure) Rules, 1993. The appellants challenged this order before the High Court of Karnataka in Writ Petition No.58039/2013, which was dismissed by a learned Single Judge on 24.07.2014. Aggrieved, the appellants filed the present writ appeal under Section 4 of the Karnataka High Court Act. The Division Bench, comprising Chief Justice D.H. Waghela and Justice Budihal R.B., heard the appeal. The court observed that the short interim order under challenge before the Single Judge had recorded that the defendant had not filed an affidavit by way of evidence but only filed an IA for cross-examination. The court held that in such circumstances, no exception could be taken to the rejection of the application. The Division Bench found no merit in the appeal and dismissed it, upholding the orders of the DRT and the Single Judge. The court did not elaborate further, as the appeal was dismissed at the preliminary hearing stage.
Headnote
A) Debt Recovery - Cross-Examination - Right to Cross-Examine - Rule 12(6) of the Recovery of Debts Due to Banks and Financial Institutions (Procedure) Rules, 1993 - The defendant, who had not filed an affidavit by way of evidence, sought permission to cross-examine the bank's witness. The Tribunal rejected the application. The High Court held that no exception could be taken to the rejection as the defendant had not filed an evidence affidavit, and the right to cross-examine is not absolute. (Paras 1-3)
Issue of Consideration
Whether the Debt Recovery Tribunal was justified in rejecting the application for cross-examination of the bank's witness when the defendant had not filed an affidavit by way of evidence.
Final Decision
The writ appeal is dismissed. The order of the learned Single Judge dated 24.07.2014 in Writ Petition No.58039/2013 and the DRT order dated 25.11.2013 rejecting IA No.3685/2013 are upheld.
Law Points
- Right to cross-examination is not absolute
- failure to file evidence affidavit disentitles defendant to cross-examine
- Rule 12(6) of RDDBFI (Procedure) Rules
- 1993
Case Details
2014 LawText (KAR) (11) 1
Writ Appeal No.1790/2014 (GM-DRT)
D.H. Waghela, CJ, Budihal R.B., J
Sri Shivayogi B. Hallur (for appellants), Sri Brijesh Chander Guru (for respondent)
M/S: Perfect Polybaags Private Ltd., Mr. Naresh Bhandia, Smt. Rashmi Bhandia
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Nature of Litigation
Writ appeal against dismissal of writ petition challenging DRT order rejecting application for cross-examination.
Remedy Sought
Appellants sought to set aside the order dated 24.07.2014 of the learned Single Judge in Writ Petition No.58039/2013 and the DRT order dated 25.11.2013 rejecting IA No.3685/2013.
Filing Reason
Appellants' application for cross-examination of bank's witness was rejected by DRT on the ground that they had not filed an affidavit by way of evidence.
Previous Decisions
DRT order dated 25.11.2013 rejecting IA No.3685/2013; Single Judge order dated 24.07.2014 dismissing Writ Petition No.58039/2013.
Issues
Whether the DRT was justified in rejecting the application for cross-examination when the defendant had not filed an evidence affidavit.
Submissions/Arguments
Appellants argued that they should be permitted to cross-examine the bank's witness despite not filing an evidence affidavit.
Respondent bank supported the DRT order, citing Rule 12(6) of the RDDBFI (Procedure) Rules, 1993.
Ratio Decidendi
A defendant who has not filed an affidavit by way of evidence is not entitled to cross-examine the opposite party's witness under Rule 12(6) of the RDDBFI (Procedure) Rules, 1993, as the right to cross-examine is contingent upon filing of evidence affidavit.
Judgment Excerpts
The short interim order which was under challenge before learned Single Judge read as under: 'Having heard Sri.R.L.Patil, learned senior counsel and perused Rule 12(6) of the RDDBFI (Procedure) Rules, 1993 and regard being had to the admitted fact that petitioner, a party defendant in O.A.239/2011 did not file an affidavit by way of evidence, but filed IA No.3685/2013 to permit cross-examination of AW-1, the witness for the Bank, no exception can be taken to the rejection of that application.'
Procedural History
The appellants filed IA No.3685/2013 before DRT, Bengaluru in O.A.No.239/2011 seeking cross-examination of bank's witness. DRT rejected the IA on 25.11.2013. Appellants challenged this order in Writ Petition No.58039/2013 before the High Court of Karnataka, which was dismissed on 24.07.2014. Appellants then filed the present writ appeal under Section 4 of the Karnataka High Court Act, which was dismissed on 26.11.2014.
Acts & Sections
- Karnataka High Court Act: Section 4
- Recovery of Debts Due to Banks and Financial Institutions (Procedure) Rules, 1993: Rule 12(6)
