Bombay High Court
Sonu Textiles And Ors. vs Punjab National Bank on 11 October, 2007
Equivalent citations: 2008(2)MHLJ218, AIR 2009 (NOC) 50 (BOM.) = 2008 (5) AIR BOM R 702 (DB), 2008 (5) AIR BOM R 702, 2009 A I H C 153, (2008) 2 MAH LJ 218, (2009) 1 BANKCAS 310, 2008 (2) ALLMR (NOC) 113, (2008) 3 BOM CR 889
Author: Swatanter Kumar
Bench: Swatanter Kumar, D.Y. Chandrachud
JUDGMENT Swatanter Kumar, C.J.
1. Rule. Respondents waive service. By consent Rule made returnable forthwith. Heard both the sides.
1. Punjab National Bank, a body corporate and constituted under The Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, filed an application, being Original Application No. 802 of 2005 before the Debts Recovery Tribunal, Mumbai against the borrowers, (hereinafter referred to as the petitioners), including other parties, for recovery of Rs. 85,63,486/- with future interest at the rate of 18.5% per annum with quarterly rest till realisation.
2. The claim of the Bank was contested by the petitioners on various grounds. In September, 2003, besides filing their written statement, they also filed counter claim, claiming certain amount against the Bank. During the pendency of those proceedings, petitioners filed an application for production of documents. This application was contested by the Bank. The parties had also filed affidavits and annexed various documents, which were available with them at that stage.
3. On 8th August, 2005 the petitioners filed an application for cross-examination of two Bank Officers, who had signed and affirmed the Written Statement to the counter-claim as well as reply to the application for production of documents. In reply to this application, two affidavits were filed by the Bank. During this time, the petitioners claimed to have changed their Advocate for argument, who had advised the petitioners to withdraw the said two applications with liberty to file a fresh one for cross-examination of the said two officers of the Bank. By order dated 1 lth November, 2005 the learned Presiding Officer of the Debt Recovery Tribunal allowed the petitioners to withdraw the two applications with liberty to file a fresh application.
4. While giving detailed facts on 11th November, 2005, the petitioners filed two fresh applications making the same prayers. It was stated in the said applications that the Bank had failed to produce documents and copies of correspondence with Overseas Bank. The main contention raised by the Bank to oppose those applications was that the documents were not delivered due to negligence and delay on the part of the petitioners, while, according to the petitioners, the negligence was on the part of the Bank. The other ground taken by the petitioners was that the respondent-Bank in violation of the terms, conditions and instructions, re-exported the goods to Mumbai, which was neither released nor re-exported and they were kept lying at Mumbai Port. The goods were not even released and no proper care was taken by the Bank which caused huge loss to the petitioners, resulting in filing of the counter-claim. Replies were filed by the Bank to oppose these applications. However, the Debt Recovery Tribunal rejected both the applications, vide its order dated 25th August, 2005.
5. Aggrieved by the above order, the petitioners preferred an appeal, being Appeal No. 217 of 2005, before the Debt Recovery Appellate Tribunal, Mumbai, which was also dismissed, vide order dated 5th December, 2006, resulting in filing the present petition.
2. It may be noticed that while rejecting the contentions raised on behalf of the petitioners, the Appellate Tribunal in the order impugned in this petition, held as under:
12. The respondent bank's officer has filed affidavit dated 29-1-2006 stating therein that in it's reply before the DRT the bank has stated that except the documents produced in the DRT, the respondent bank does not have any other document in its possession which can be produced and whatever documents which are produced, copies thereof are part of the appeal paper book which is filed by the appellants in the Tribunal. 13. So far as procedure followed by the DRT is concerned, the bank is required under the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as Rules of 1993) to produce evidence by filing affidavit deviating from the procedure which is followed under the provisions of Code of Civil Procedure. In this connection Sub-rules (6) and (7) of Rule 12 of the Rules of 1993 are relevant. If the defendant denies liability to pay claim made by the applicant bank, the Tribunal can act on the affidavit of a person who is acquainted with the facts of the case or affidavit filed by an officer on the basis of the record. The application for cross-examination of the witness can be granted only if the Tribunal is of the view that it is necessary to produce witness for cross-examination. That necessity is not made out in the application filed by the appellants. The contents of the application show that according to the appellants the respondent bank is trying to make out a case without producing, evidence in support of its contentions. That will be the matter for consideration of the RT whether averments made in the affidavit can be relied on or not in the absence of documentary evidence. The said point can be argued by the appellants at the stage of final hearing of the original application. The contents of the application filed by the appellants before the DRT would show that the contents are in the nature of arguments of the appellants; which can be considered by the DRT at the time of final hearing of the original application. The appellants seem to have filed this application for production of certain documents with a view to substantiate their counter-claim filed in the original application.
14. On behalf of the respondent bank it is stated that the documents which were in their possession have already been produced and there is no question of asking them to produce the documents which are not in their possession and for that purpose cross-examination of the officer of the bank is not required. If the documents which are supported to be in the possession of a party are not produced, the Tribunal can draw necessary inference about the same.
In view of the aforesaid discussion, I find the application as well as this appeal filed by the appellants devoid of any merit or substance. In the result, this appeal is dismissed.
3. The correctness of the above order is challenged by the petitioners on the ground that Rule 12(6) and (7) of The Debts Recovery Tribunal (Procedure), Rules, 1993, (hereinafter referred to as the said Rules) on their cumulative reading makes it obligatory upon the authority and appellate forum to allow cross-examination in the interest of justice and to achieve real object of the procedural law. The discretion vested in the authorities under the provisions of Rule 12(8) has its own effect and impact and once documents were not being produced by the respondent Bank, it was necessary for the authorities to allow cross-examination by the petitioners on the two principal issues raised by them. On behalf of the respondent Bank it is contended that the subsequent applications were not maintainable and in any case no right is vested in the petitioners to claim cross-examination of the witnesses. It is further contended that within the limited jurisdiction vested in the Tribunal under these provisions, the right to cross-examination is an exception and not a rule. While relying upon the judgment of the Supreme Court in the case of Union of India and Ors. v. Delhi High Court, Bar Association and Ors. , it is also argued that Rule 12(7) empowers the Tribunal to act upon the affidavits and the need for oral examination of witnesses should rarely arise where, for good reason, the Tribunal is of the view that affidavits were not sufficient. Keeping in view the nature of the dispute in the present case, there is no justification for allowing cross-examination of the Bank witness. No doubt, the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rules of 1993 provide for a self contained code in relation to the procedure which is to be adopted by the Tribunal. By the amendment to the procedure under the Amending Rules, 2003, the Rules were amended and particularly Sub-rule (6) of Rule 12 was substituted requiring the parties to lead evidence by filing affidavits and the discretion was given to the Tribunal to permit cross-examination of the witness, where it appears to the Tribunal that such witness can be produced and it is necessary to do so for the reasons to be recorded by the Tribunal. The intent of the rule-making authority is obvious that the oral examination and/or cross-examination of the witness is not to be allowed as a rule. Normally, the intention is to decide the matter on affidavits wherever the facts and circumstances of a case demands. Obviously, the Tribunal will have to exercise its powers in accordance with Rule 12(6) of the said Rules. Rule 12(6) reads as under:
12(6) The Tribunal may at any time for sufficient reason order that any particular fact or facts shall be proved by affidavit, or that the affidavit of any witness shall be read at the hearing, on such conditions as the Tribunal thinks reasonable.
Provided that after filing of the affidavits by the respective parties where it appears to the Tribunal that either the applicant or the defendant desires the production of a witness for cross-examination and that such witness can be produced and it is necessary to do so, the Tribunal shall for sufficient reasons to be recorded, order the witness to be present for cross-examination, and in the event of the witness not appearing for cross-examination, then, the affidavit shall not be taken into evidence and further that no oral evidence other than that given in this proviso will be permitted.
4. Under this rule the legislative intent is the satisfaction of the Tribunal, for reasons to be recorded, to the effect that it was necessary that the oral evidence/cross-examination should be permitted. To say that there is no right vested in a party to claim cross-examination of a witness would be an interpretation opposed to the very provision itself. Of course, it is a very limited right and is subject to the satisfaction to be arrived at by the Tribunal and for good and valid reason. It is settled canon of law that procedural laws are required to achieve the ends of justice and must be so read to ensure compliance with the basic rule of law, rather than to frustrate the same. The need for interpreting such provisions on the doctrine of 'plain interpretation' would be required to be answered and nothing need to be added or subtracted to this provision for the purpose of enforcing the object of the provision.
5. We may usefully refer to a recent judgment dated 21st June, 2007 passed by another Division Bench of this Court in Civil Writ Petition No. 2920 of 2006, titled as G.S. Rathore v. The Union of India and Anr., where the Court was concerned with effect of procedural law and jurisdiction of the Central Administrative Tribunal under the provisions of Section 22(3) of the Act in relation to ordering discovery of documents. Emphasising on the limited jurisdiction of the Tribunal in contradistinction to powers of the Civil Court, the Court held as under:
4. The learned Counsel appearing for the petitioner relied upon the judgment of this Court in the case of Sonia Senroy v. Amit Senroy , Ramlalsao v. Tansingh Lalsingh AIR 1952 Nagpur 135 and a judgment of the Supreme Court in Raj Narain v. Smt. Indira Nehru Gandhi and Anr. in support of his contention that the provisions of the Code of Civil Procedure would have a binding nature before the administrative tribunal and the administrative tribunal ought to have allowed the request for serving the interrogatories upon the respondents, at that stage of the case itself and, therefore the order is erroneous and deserves to be set aside.
5. The Central Administrative Tribunal, while referring to the provisions of Section 22(3) and Order XI of Civil Procedure Code and while following its own orders passed in different cases, as referred to above (supra), recorded a finding that the tribunal had no power to direct the respondents to answer the interrogatories, as there was no specific provision in the Act. Along with the misc. petition praying for serving the schedule of interrogatories to be answered by the respondents, the petitioner had also enclosed the schedule containing as many as 20 questions. These questions related to certain facts and intended to discover certain legal evidence by requiring the respondents to answer them. For example, the questions were asked with regard to the specifications of quantitative and qualitative or financial targets provided for the year ending 1993. The questions were also directed towards finding out what was the evidence for recording of certain reports.
6. Chapter IV of the Act deals with the matters relating to procedure and powers of the Administrative Tribunal. Section 22 of the Act opens with the negative language, stating that the tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908. It is to be guided by the principles of natural justice and, furthermore, the tribunal is vested with the power to regulate its own procedure in relation to the various aspects. In other words, it is not the Legislative intent that the provisions of the Code should be applicable stricto sensu. The paramount precept of administrative procedure before the tribunal is the principle of natural justice, added by the own prescribed procedure of the tribunal. (Of course, further to add to the same provision of Section 22(3) of the Act, to what extent the tribunal shall be vested with the power of the Civil Court). The application of the provisions of the Code would, therefore, be limited and restricted to the extent specified specifically in the provisions of Section 22(3) of the Act. The object of the Legislation is clear that it intended to exclude, by using specific language, application of the Code per se and made restricted provisions applicable to the tribunal and to give liberal construction to this provision, would neither be fair nor permissible. In fact, it may amount to defeating the very object and purpose of the substantive provisions of Section 22 and the scheme of the Act. The very purpose of constitution of the tribunal was for expeditious disposal of matters or disputes or complaints arising in respect of recruitment and conditions of services of persons appointed to the public service and posts. The tribunal, therefore, would exercise powers of Civil Court only limited by the requirements of Clause (a) to (i) of Sub-section (3) of Section 22 of the Act.
6. Let us now examine the relevant Rules in light of the above scope of procedural law. Rule 12 of the Rules deals with filing of reply and other documents by the defendant in the proceeding before the Debts Recovery Tribunal. In terms of the amended provisions of Rule 12(6), at any stage of the proceeding, the Tribunal can direct the facts to be proved by filing affidavits which will be read in evidence. Thus, the affidavits filed with the leave of the Tribunal are to be read as part of the record at the time of hearing. The framers of the Rule in their wisdom further vested the Tribunal with the specific power to require the witness, who has sworn an affidavit, to be present in Court for cross-examination, subject to its satisfaction and the terms stated in proviso to Sub-rule (6) of Rule 12 of the Rules. The discretion vested in the Tribunal is in addition to the fact that in terms of Rule 12(8) the provisions contained in Section 4 of the Bankers' Books Evidence Act, 1891 shall apply to a certified copy of an entry in a Banker's book. Under Order 18, Rule 4 of the Civil Procedure Code (CPC), examination-in-chief of a witness shall be by way of an affidavit and such evidence of the witness is to be tendered necessarily for cross-examination and re-examination, as the case may be, in furtherance to the mandate contained in Sub-rule (2) of Rule 4 of Order 18 of the Civil Procedure Code. As a normal consequence, the affidavit tendered in examination-in-chief could be read in evidence only after the witness if tendered for cross-examination. Unlike these provisions, Rule 12(6) of the Rules does not make it mandatory that every witness whose affidavit is filed has to be tendered for cross-examination. However, a party can make a request to the Tribunal for cross-examination of a witness, whose affidavit is to be read in evidence at the time of hearing. The Tribunal then would consider such an application in consonance with the provisions of Rule 12(6) and pass appropriate orders.
7. The Tribunal, inter alia, would have to apply its mind in relation to the following aspects and act accordingly:
(i) The defendant desires the production of a witness for cross-examination;
(ii) Such witness can be produced if it is necessary to do so;
(iii) Tribunal shall, for sufficient reasons to be recorded, order the witness to be present for cross-examination.
The proviso to Rule 12(6) also specifically provides the consequence of default of a witness who is ordered to be present for the purpose of cross-examination. If such witness does not appear despite the order of the Tribunal, the affidavit shall not be taken in evidence. In other words, the Rule provides for satisfaction of its requirements as well as consequence of default of non-compliance of the orders of the Tribunal. In the case of Union of India and Anr. v. Delhi High Court Bar Association and Ors. , while dealing with this aspect, the Supreme Court has held as under:
22. At the outset, we find that the Rule 12 is not happily worded. The reason for establishing banking Tribunals being to expedite the disposal of the claims by the banks, the Parliament thought it proper only to require the principles of natural justice to be the guiding factor for the Tribunals in deciding the applications, as is evident from Section 22 of the Act. While the Tribunal has, no doubt, been given the power of summoning and enforcing the attendance of any witness and examining him on oath, but the Act does not contain any provision which makes it mandatory for the witness to be examined, if such a witness could be produced. Rule 12(6) has to be read harmoniously with the other provisions of the Act and the Rules. As we have already noticed, Rule 12(7) gives the Tribunal the power to act upon the affidavit of the applicant where the defendant denies his liability to pay the claims. Rule 12(6), if paraphrased, would read as follows:
1. The Tribunal may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit...on such conditions as the Tribunal thinks reasonable.
2. The Tribunal may at any time for sufficient reason order...that the affidavit of any witness may be read at the hearing, on such conditions as the Tribunal thinks reasonable.
23. In other words, the Tribunal has the power to require any particular fact to be proved by affidavit, or it may order the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to Rule 12(6) would certainly apply only where the Tribunal chooses to issue a direction, on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or defendant for the production of a witness for cross-examination. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to be Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present for cross-examination and in the event of his not appearing, then the affidavit shall not be taken into evidence. When the High Courts and the Supreme Court in exercise of their jurisdiction under Article 226 and Article 32 can decide questions of fact as well as law merely on the basis of documents and affidavits filed before it ordinarily, there should be no reason as to why a Tribunal, likewise, should not be able to decide the case merely on the basis of documents and affidavits before it. It is common knowledge that hardly any transaction with the Bank would be oral and without proper documentation, whether in the form of letters or formal agreements. In such an event the bona fide need for the oral examination of a witness should rarely arise. There has to be a very good reason to hold that affidavits, in such a case, would not be sufficient.
8. The above enunciation of law clearly indicates that no indefeasible right is vested in the Defendant before the DRT to ask for cross-examination of witnesses whose affidavits have been filed in exercise of the powers of the Tribunal under Rule 12(6) of the Rules. Equally true is that there is a right to file an application making a request for cross-examination of witnesses, which has to be considered and decided by the Tribunal in the light of the above parameters. It will be difficult to provide for any strait jacket formula universally applicable as it would primarily depend upon the facts and circumstances of each case, whether or not the Tribunal should pass an order for production of the witnesses for cross-examination or not. However, while exercising such power, the Tribunal has to keep in mind that the purpose of cross-examination is normally to test the veracity of the witness and to bring true and correct facts on record. These are primarily matters relating to procedural law and which should be enforced objectively and with clear intent to serve the ends of justice.
9. In the present case, the defendants before the Tribunal, while contesting the claim vehemently on fact and law, had filed an application for production of documents. It was stated that the documents, the production of which was sought, related to:
1. Copy of RBI guidelines referred to by the applicant bank.
2. Correspondence between the Foreign Bank and the drawee of collection bills including presentation memo delivered by Foreign Bank to the drawee and a proof of its delivery as also the written communication of the drawee to return the documents.
3. The letter from custom authorities to the bank in the matter of valuation made by the custom authorities.
4. Original GR for each of the collection bill.
5. Correspondence between applicant bank and custom authorities.
6. Correspondence between the Foreign bank (acting as agent of the Applicant Bank) and the overseas shipping agency along with the original Bills of Lading - both for exports and for reimports.
7. Correspondence with BPT and auction agent and with any other party/person entrusted with the custody of re-imported goods.
8. Documents evidencing the value realised under the auction of reimported goods.
9. Copies of letters addressed by the applicant bank to the defendants herein in the matter of reimport of goods.
10. To this application, reply affidavit was filed on behalf of the Bank in which it was stated that certain documents which were not earlier available could be noticed after intense search and were sought to be filed. It was also stated that the presentation memo of Foreign Bank to the drawer was not available with the Bank and nothing else was stated in the reply. Thereafter, another application was filed for cross-examination of the Manager of the Bank. In that application it was stated that besides contesting the claim, even a counter claim had been raised by the defendant and the Bank had not produced original copies of the correspondence with the Overseas Bank. A specific plea had been raised that the Bank in violation of the terms and conditions and instructions, reimported the goods to Mumbai which was not released and neither re-exported but the same was lying in the Port. This act on the part of the Bank was unauthorised and illegal. The defendants were not informed of these developments in relation to the consignments and the documents like bill of lading, bill of entry and other material documents. No proof was submitted with regard to delivery of presentation memo or written communication by the drawee to return the documents. Besides these reasons, it was stated that the affidavit was contrary to records of the authorities as well as the Bank as there was no shortage. The defendants had exported 121 cartons which was certified by the customs authorities. The quantity sold by Mumbai Port Trust shows 121 cartons. Blank documents had been filed by the Bank without counter signatures of the defendants. The other ground stated was the necessity to cross-examine the witness to arrive at a just and fair conclusion on the basis of the pleadings of the parties. In the application of July, 2005, all these allegations were made which was subsequently withdrawn. Another application was filed in November, 2005, seeking to cross-examine the Manager of the Bank in relation to return of goods and suppression of material facts and non-production of documents. To this, reply was filed by the Bank which in substance is vague. The Tribunal in the impugned order noticed that in terms of the affidavit of the Bank dated 29th January, 2006, it had been stated that the Bank did not have any other documents except the documents already produced before the DRT. Once an affidavit has been filed that the Bank is not in possession of any other documents and the documents which were produced had been furnished to the defendants in those proceedings, hardly any contention could survive in this regard and the Tribunal would consider the effect of the same in accordance with law at the appropriate stage.
11. As far as the cross-examination of the witness was concerned (Manager of the Bank), the request was declined on the ground that the necessity is not made out in the application filed by the appellant. Noticing the contentions of the borrower, the Appellate Tribunal held that these contentions could be argued at the final stage. It also noticed that the application for production of documents had been filed to support the counter claim filed by the appellants. The Tribunal in its order noticed the non-production of documents, record of the customs authorities, documents of the drawee and bills of lading in relation to the foreign purchasers. The Tribunal while noticing the contentions of the appellants stated that the necessity was not made out.
12. "Necessary to do so" essentially need to be construed conjunctively while discerningly keeping in mind 'to do so' shall mean what to do. It has to be construed keeping in view the nature of the proceedings and the fact that it is a Special Tribunal constituted with the object of expeditious disposal of cases instituted by financial institutions. Thus, the Tribunal has to determine the issues fully and finally, while affording proper opportunity to the parties to lead their evidence, of course, in compliance to the provisions of Rule 12(6). The reasons to be recorded by the Tribunal thus should relate to these aspects and necessarily should be in conformity with the concept of basic rule of law. The expression "necessary" should also be given a meaning as contemplated under Order 1, Rule 1 of the Civil Procedure Code where an applicant could be impleaded in the suit at any stage, being a necessary party. In accordance with the settled canons of law, a party is a necessary party when its presence before the Court is essential for factually and completely adjudicating the matters in dispute.
13. Again, "Necessary to do so" are the words of great significance appearing in Rule 12(6) of the Rules. In fact, that is the most essential condition which should be satisfied before the application for cross-examination can be allowed. The word "necessary" must be construed in the connection in which it is used. It is a word capable of various meanings. It may import absolute physical necessity, or that which is only convenient or useful or essential. It may also be construed as indispensable. The word "necessary" sometimes means such as must be; impossible to be otherwise; not to be avoided; inevitable. In the case of Faqit Chand Agarwal v. Smt. Bhagwanti , the Court while explaining the words "necessary for disposal of suit" observed as under:
The use of this language in this Article can only mean that the question involved must be such that it is not possible to dispose of the suit without determining the constitutional question raised.
14. We are of the considered view that the expression "necessary" should be given reasonably liberal interpretation as it is a part of procedural law and cannot be construed in abstract without reference to the facts and law of the case. It is always beneficial to construe such provisions with the aid of necessitas est lex temporis et loci. The word "necessary" should be understood and construed to suitably conclude the proceedings effectively and to meet the ends of justice in contradistinction to impossible to be otherwise. Some element of relaxation is essential as the Tribunal has been vested with the discretion to deal with such applications by recording appropriate reasons. The discretion vested in the Tribunal in furtherance to the provisions relating to procedural law is to be guided by settled judicial norms and is a controlled exercise of power unlike "do as you like". The rule certainly contemplates restricted exercise of power and consequent power and discretion but it cannot be treated as an absolute proposition of law that in no circumstances the Tribunal would permit cross-examination of witnesses. Such an approach would frustrate the cause of the Rule rather than further its cause. The procedure is something designed to facilitate justice and further its ends, not a penal enactment leading to absolute denial. Too technical a construction of a provision that leaves no room for elasticity of interpretation and, therefore, be guarded against, as procedural laws are founded on principle of natural justice. Reference can be made in this regard to the judgments of the Supreme Court in the cases of (i) Chinnammal v. P. Arumugham , and (ii) Ghanshyam Dass v. Dominion of India . The object of Rule 12(6) is to permit cross-examination of a witness, if the condition precedent thereto is satisfied. To give the meaning of an absolute physical necessity would sub-serve the purpose of procedural law. The appellants have made out a clear case that the documents were not produced by the Bank and it is stated that they are not in possession of the Bank. However, averments in that regard have been made in the affidavit filed on behalf of the Bank. Furthermore, the appellants had made out grounds which would certainly fall within the ambit of valid causes for justifying the prayer for cross-examination of the Manager. A very material controversy arises between the parties as to on whose instructions the goods were brought back to Mumbai and under whose authority the goods were kept for such a long period, the liability of which is ultimately fastened upon the appellants. The admission of the Bank that they did not have G.Rs in their possession but still facts have been averred in the affidavits would certainly bring the case of the appellants within the four corners of the provisions of Rule 12(6). In the original application filed by the Bank, it is stated in para 5 that the goods were delivered to the consignee but later on the stand was that they were reimported to Mumbai. If such an averment is not supported by proper documents, which even partially is conceded before the Court, then the appellants would be entitled to cross-examine the witness in regard to such averments made in the affidavit tendered in evidence. There cannot be fixed parameters for consideration of such applications and each case would have to be examined on its own merits.
15. Based on non-production of documents, contradictory stand of the Bank, the documents being not supportive of each other and the controversy raised in the pleadings between the parties, it was a fit case where the request should have been allowed to completely and fully determine and decide the claim of the Bank and the counter claim of the borrower. Thus, in the interest of justice and to fully and finally adjudicate the disputes between the parties, in our opinion, the application should have been allowed by the Tribunal. In the present case, we have no hesitation in coming to the conclusion that the Tribunal has erred in law in declining the request of the applicants for cross-examination of the Bank Manager.
In the result, the impugned orders dated 25th August, 2006 and 5th December, 2006 are quashed and set aside and the petitioners are granted liberty to cross-examine the Bank Manager in accordance with law. Rule is made absolute, while leaving the parties to bear their own costs.