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 vs. Smt. Bhagwanti, AIR 1958 Punjab 287,
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Writ Petition No.1758 of 2007
M/s Sonu Textiles, ]
vs
Punjab National Bank, ]
CORAM: SWATANTER KUMAR,C.J.,&
DR D.Y. CHANDRACHUD,J.
JUDGMENT DELIVERED ON 11.10.2007
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
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.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
4
other ground taken by the petitioners was that the
respondent Bank in violation of the terms, conditions and
instructions, re-imported 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 counterclaim.
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
5
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
6
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 vs. Delhi High Court, Bar
Association and ors, AIR 2002 SC 1479, 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 vs.
The Union of India and another, where the Court was concerned
with effect of procedural law and jurisdiction of the Central
Administrative Tribunal under the provisions of Section 22 (3)
10
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.
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 vs. The
Union of India and another, 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.
11
“4. The learned counsel appearing for the
petitioner relied upon the judgment of this court in
the case of Sonia Senroy vs Amit Senroy, AIR 1998
Bombay 302, Ramlalsao v. Tansingh Lalsingh, AIR
1952 Nagpur 135 and a judgment of the Supreme
Court in Raj Narain vs. Smt Indira Nehru Gandhi
and anr, 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 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
12
words, it is not the Legislative intent that the
provisions of the Code should be applicable stricto
senso. 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 perse
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
13
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 Subrule
(2) of Rule 4 of Order 18 of the CPC. 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 crossexamination
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 another vs. Delhi
High Court Bar Association and others, AIR 2002, SC 1479,
15
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 S. 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. R.
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 R. 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
16
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 crossexamined
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 Art. 226 and Art. 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
17
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.
18
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
19
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
20
return of goods and suppression of material facts and nonproduction
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
21
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 CPC 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.
22
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 vs. Smt. Bhagwanti, AIR 1958 Punjab 287,
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 crossexamination
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 vs. P.
Arumugham, AIR 1990 SC 1828, and (ii) Ghanshyam Dass vs.
Dominion of India, AIR 1984 SC 1004. 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.
26
16 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.
CHIEF JUSTICE
DR.D.Y.CHANDRACHUD,J.
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