AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2007 (10) TMI 408
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.... 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 counterclaim 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 11th 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.White giving detailed facts on 11 th 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 cor....
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....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 tying 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....
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....y 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 Rule. 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....
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.... "4. The learned counsel appearing for the petitioner relied upon the judgment of this court in the case of Sonia Senroy v. Amit Senroy, AIR 1998 Bombay 302, Ramlalsao v. Tansingh Lalsingh, AIR 1952 Nagpur 135 and a judgment of the Supreme Court in Raj Narain v. Smt Indira Nehru Gandhi AIR 1972 SC 1302 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 the of C.P.C. 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 ....
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..... 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 Gross-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 Bankers 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....
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.... 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(8), 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 R. 12(8) 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 settin....
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....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 l....
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....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 Indians in relation to the foreign purchasers. The Tribunal while noticing the contentions of the appellants stated that the necessity was not made out. 12. ....
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....poris 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 n....