Telangana High Court
Smt. Anshu Gupta And 2 Others vs The Debts Recovery Tribunali And 9 ... on 21 February, 2022
THE HONOURABLE SRI JUSTICE UJJAL BHUYAN
AND
THE HONOURABLE SRI JUSTICE A. VENKATESHWARA REDDY
Writ Petition No.25786 of 2021
ORDER:(Per Hon'ble Sri Justice Ujjal Bhuyan) Heard Mr. D.V. Reddy, learned counsel for the petitioners. None has appeared for the respondents.
2. By filing this petition under Article 226 of the Constitution of India, petitioners have challenged legality and validity of the common Docket Order dated 05.10.2021 passed by the Debts Recovery Tribunal-I, at Hyderabad (Tribunal) in Interlocutory Application Nos.3423, 3424 and 3425 of 2019 in O.A.No.76 of 2013.
3. O.A.No.76 of 2013 has been filed by respondent No.2 against the petitioners and others for recovery of dues.
4. Petitioners are defendant Nos.4, 5 and 6 in O.A.No.76 of 2013. They had filed their written statement on 27.01.2017, but subsequently when their ::2:: UB,J & AVR,J wp_25786_2021 turn for submitting evidence on affidavit came, they defaulted, whereafter the evidence was closed on 19.07.2017. It is in such circumstances that the interlocutory applications were filed by the petitioners to re-open evidence and to allow them to file their evidence on affidavit. Those interlocutory applications were registered as Interlocutory Application Nos.3423, 3424 and 3425 of 2019.
5. By the impugned Docket Order dated 05.10.2021, the interlocutory applications were dismissed.
6. Hence the present writ petition.
7. This Court by order dated 25.10.2021 had issued notice and, in the meanwhile, stayed further proceedings in O.A.No.76 of 2013.
8. Relevant portion of the order dated 05.10.2021 reads as under :
"A perusal of the docket proceedings reveal that, the petitioners, who are defendant Nos.4, 5 and 6 along with defendant No.3 filed their Written Statement on 27.01.2017. On 08.03.2017, the respondent No.1 / applicant-Bank filed ::3:: UB,J & AVR,J wp_25786_2021 its evidence affidavit and marked the documents in evidence. Despite affording opportunities, defendants, including petitioners herein, did not file their evidence affidavits. On 05.05.2017, defendant No.1, who is respondent No.2 herein, filed his evidence affidavit and marked the documents on his behalf. On 02.06.2017, defendant No.3, who is respondent No.4 herein, filed a Memo adopting the evidence of defendant No.1 (respondent No.2 herein). On further adjournment for evidence of other defendants in the O.A., i.e., on 15.06.2017, the petitioners herein, who are defendant Nos.4, 5 and 6, and including defendant No.7 were called absent and as such their evidence was closed and posted the matter to 19.07.2017 for evidence of defendant No.8. As there was no representation on behalf of defendant No.8, the evidence of defendant No.8 was closed on the said date. Thereafter, defendant No.3 filed an application in I.A.No.1801 of 2019 seeking permission of this Tribunal to recall and cross- examine AW.1, which was allowed by this Tribunal vide order dated 06.08.2019. However, the Registry has permitted defendant Nos.4 to 6, i.e., the petitioners herein along with defendant No.3 to cross-examine AW.1 and the said cross-examination was concluded on 04.10.2019.
As can be seen from the above, the petitioners herein, who are defendant Nos.4, 5 and 6 have never filed their evidence on their behalf nor have adopted the evidence filed by defendant No.3 in the O.A. as alleged by them. The petitioners did not file any petition to re-open their evidence, which was closed on 19.07.2017. The ::4:: UB,J & AVR,J wp_25786_2021 petitioners have failed to adduce evidence on their behalf when they have been afforded opportunity at appropriate time. Without there being any petition to cross-examine AW.1 on behalf of the petitioners herein, they have been permitted by the Registry to cross-examine AW.1. At this belated stage, the petitioners cannot be permitted to adduce their evidence to improvise their case.
In view of the above, I do not find any merit in the instant applications filed by petitioners / defendant Nos.4, 5 and 6 and, accordingly, I hold that the present petitions are liable to be dismissed.
In the result, I.A.Nos.3423, 3424 and 3425 are hereby dismissed. No order as to costs."
9. From the above, we find that petitioners [defendant Nos.4, 5 and 6] have contested O.A.No.76 of 2013 by filing written statement. However, as noticed, they failed to file their evidence on affidavit which led to closure of evidence on 19.07.2017. Thereafter, the interlocutory applications were filed seeking leave of the Tribunal to re-open evidence and to file evidence affidavit. Tribunal took the view that since the evidence of the petitioners (defendant Nos.4, 5 and 6) was closed on 19.07.2017, the prayer made was ::5:: UB,J & AVR,J wp_25786_2021 belated. Further, the Tribunal took the view that since petitioners did not cross-examine witness No.1 of the applicant, they should not be permitted to adduce evidence at a belated stage.
10. On going through the impugned order dated 05.10.2021, we are of the view that though the Tribunal may be technically right in rejecting the interlocutory applications of the petitioners, yet it would only be in the aid and further the interest of justice if the petitioners are allowed to submit their evidence on affidavit.
11. Further, as is evident, petitioners are facing proceedings under the Recovery of Dues due to Banks and Financial Institutions Act, 1993 and, in the event their evidence is not on record, the same may cause serious prejudice to their defence though they had already filed their written statement.
12. In the light of the above, and taking an overall view of the matter, we set aside the order dated ::6:: UB,J & AVR,J wp_25786_2021 05.10.2021 and direct the Tribunal to allow the petitioners to file their evidence on affidavit and thereafter to proceed with O.A.No.76 of 2013 in accordance with law.
13. However, we make it clear that petitioners, i.e., respondent Nos.4, 5 and 6 shall not take any undue advantage of this order by seeking adjournment of the proceedings in O.A.No.76 of 2013.
14. This disposes of the writ petition. No order as to costs.
15. As a sequel, miscellaneous applications pending if any in this Writ Petition, shall stand closed.
____________________ UJJAL BHUYAN, J __________________________________ A. VENKATESHWARA REDDY, J Date : 21.02.2022 Ndr