TaxTMI 
TaxTMI 
2017 (10) TMI 618
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....t No. 3/ M/s. Unicorp Informatics Limited had approached the Respondent No. 1/Dena Bank in the year 1996 for grant of various credit facilities which were extended to it on the terms and conditions as agreed upon between the bank, the borrower and the guarantor. Respondent No. 3/ M/s Unicorp Informatics Limited utilized those credit facilities under various heads. It presented four bills of exchange drawn by them and duly accepted by M/s Vintron Informatics Ltd. (the petitioner herein) for payment at par through Oriental Bank of Commerce Nehru Place, New Delhi (hereinafter referred to as "the OBC"),. Respondent No. 1/Dena Bank acceded to the request of the Respondent No.3/ M/s Unicorp and discounted the following four bills of exchange as reproduced by the DRT-II in its order dated 06.01.2014:- S.No. Bill of Exchange No.& Date Amount Due Date Bill No.& Date 1 UIL/001 19.02.1998 Rs.11,45,700/- 20.05.1998 UCS/9802/3102 18.02.1998 2 UIL/002 19.02.1998 Rs.9,84,900/- 15.05.1998 UCS/9802/3099 18.02.1998 3 UIL/003 19.02.1998 Rs.9,04,500/- 10....
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.... exchange by OBC or discounting of the bills by them; that the evidence on record is not sufficient to prove that the said bills of exchange were presented or protested by Shri S.K. Tyagi, Notary Public and his alleged noting and protest is not in accordance with the provisions of Negotiable Instruments Act (hereinafter referred to as "the N.I. Act") and does not filfil the requirements of Section 99 and 102 of the N.I. Act; that there is no document to support any of the pleas of the respondents and reliance on the oral testimony by the Tribunal is, therefore, is improper and against the canons of justice; that undue credence has been given to the testimony of the Notary Public while the testimony of the petitioner's witnesses, who were not even cross-examined, has not been appreciated or considered by the Tribunal. 6. It is further canvassed by learned counsel for the petitioner that the DRAT has failed to consider the ratio of the judgment of the Division Bench of the High Court of Bombay in the case of Raj Kumar vs. DRAT (reported as II (2004) BC 485, decided on 17.06.2003), wherein it was held that there is no presumption in law that the bank documents and the bank officers....
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....n by the petitioner were rejected. In the written statement filed in response to the OA before the DRT-II, the petitioner did not dispute the fact that the bills of exchange were discounted by the respondents and that on presentation of the said bills to the OBC, the same were retuned unpaid. It is submitted that in the challenge laid to the order of the DRT-II before the DRAT, the petitioner changed its stand and took a plea that the bills were in fact never presented to the OBC, prior to the petitioner's settling its liability with the respondent No.2/borrower company. It is further argued that the petitioner's plea that the pleadings in the OA were vague and certain facts were not disclosed, is also contrary to the record and the respondents have categorically pleaded all the relevant facts in the OA. Learned counsel submitted that the petitioner has not taken the plea of the vagueness or suppression or non-disclosure of any facts by the contesting respondents in the written statement filed before the DRT and this aspect has been considered by the learned DRAT in the impugned order and rejected. 10. Learned counsel for the respondent No.2 urged that the jurisdiction of the Co....
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.... the case of Sub-Divisional Officer, Konch v. Maharaj Singh, reported as (2003) 9 SCC 191, had clearly held that "jurisdiction of the High Court under Article 226 is a supervisory one and not appellate one, and as such the Court would not be justified in re-appreciating the evidence....". 14. In the case of Transmission Corporation of A.P. vs. Ch. Prabhakar & Ors, reported as (2004) 5 SCC 551, the Supreme Court had held that "the High Court cannot interfere with the findings of fact based on evidence and substitute its own independent findings. The only enquiry which the High Court can make under Article 226 is whether there was any evidence at all, which if believed, would sustain the charge before the Special Court or the findings arrived at by it or whether the Special Court acted upon irrelevant considerations neglecting to take into account the relevant factors or whether the decision is so unreasonable that no reasonable person would have made such a decision. The proceedings under Article 226 are not a substitute for an appeal." 15. Therefore, the jurisdiction of this Court under Article 226 and 227 of Constitution ....
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....ispute to the fact that the said bills of exchanges were accepted by P.K. Mittal, Director of the petitioner, on behalf of the petitioner. Despite the fact that the petitioner took a plea that the bills of exchange were forged and fabricated and never accepted by them but by a different entity, it did not examine its Director and the acceptor of the bills of exchange, Shri P.K. Mittal. In view of the failure on the part of the petitioner to examine the alleged acceptor of the bill, who happens to be its own Director, all the pleas regarding non-genuineness/fabrication of the bills of exchange, fall to the ground. The findings returned by the DRT and the DRAT, rejecting these contentions of the petitioner, cannot be faulted on this count. 17. The petitioner did not raise any grievance before the DRT-II that the bills of exchange were never presented for payment to the OBC. Therefore, this fact remains uncontradicted. Thereafter, the bills of exchange were presented by S.K. Tyagi, the Notary Public to the petitioner on 23.10.1998 at its premises, where the acceptor of the bill, Shri P.K. Mittal, Director of the petitioner Company was not found present. The persons who were present....
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....ad adopted to achieve through Notary Public. For noting and protesting in terms of Sections 99 and 100, of the Negotiable instruments Act, the assistance of Notary Public is envisaged. Section 99 of the Negotiable Instruments Act provides that when a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonour to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each. As per Section 100 of the said Act, when a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonour to be noted and certified by a notary public. Such certificate is called a protest. In view of these provisions of law, services of Mr. S.K. Tyagi were utilized. He cannot be attributed with any motive to come forward and depose falsely. He certainly can be called an independent witness and was produced by the bank to ensure compliance of legal provisions. The Tribunal below, by placing reliance on the version of Mr. S.K. Tyagi and preferring it over the deposition of Mr. Rajan Garg, who can be termed....
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....e any significance. Otherwise, it can be noticed that the oral account given by Mr. S.K. Tyagi is well-supported by documentary evidence as well. The protest certificate is on record. Mere fact that Mr. Tyagi has named a person who concededly was working with the appellant whom he had gone and met would show that his account is not a made-up story but is well supported by this circumstance as well. If Mr. Tyagi had any intention to depose something which is not factually correct, he should have easily shown the presence of Mr. P.K. Mittal at the time of his visit to the office of the appellant. There is nothing to doubt the version given by the witnesses produced by the respondent bank. The Tribunal below cannot be faulted for placing reliance on the evidence produced by the bank and not believing the version given by the witnesses produced by the appellant." 19. The discussion above clearly shows that the plea taken by the petitioner with respect to the testimony of the Notary Public has been discussed at length by the DRAT and findings were given after appreciating the evidence led by the parties before the DRT. We are inclined to concur with the said findings. The No....
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....made by the appellant which are 9.11.1998, 17.11.1998, 3.12.1998 and 1.5.1999. The counsel would refer to the date of presenting these bills for payment to Oriental Bank of Commerce which was prior to 23.10.1998, as on this date Mr. S.K. Tyagi had gone to the premises of the appellant at Okhla Industrial Area once Oriental Bank of Commerce had returned the bills unpaid. Counsel would thus urge that the person present who had met Mr. S.K. Tyagi had promised to make payment up to 14.11.1998 and in this background the action of the appellant in making payment to the borrower company on the dates as noticed would show the game plan on the part of the appellant and the borrower company." 21. The contention of the petitioner that since the bills of exchange were required to be presented through OBC, it is OBC which is the drawee and as the said bills were not presented through OBC, the petitioner cannot be held liable, have been dealt by the DRAT and negated as under:- "To contest the pleas raised by the counsel for the appellant that the respondent bank was required to present these bills to Oriental Bank of Commerce in terms of the endorsement on the bills of exchange, the ....