IMPORTANT POINT
Proviso to Rule 12(6) of DRT Rules, 1993 does not provide for leading oral evidence when evidence by way of affidavit can be read in argument.

K. Gnanaprakasam, Chairperson — By consent of both the parties, both the appeals were heard together and a common order has been passed.

2. The appellant filed Applications IA-509 & 510/2004, seeking permission of the DRT to lead oral evidence of his own witness to substantiate its defence and the same came to be dismissed by order dated 15.11.2006. Aggrieved by the same, this appeal has been filed.

I have the learned Advocate for the appellant and the 1st respondent.

3. The learned Advocate for the appellant has taken me through the affidavit, which was filed before the DRT, wherein it is stated that the then Manager of the appellant-Bank and some other officer have committed certain frauds, which made the appellant-Bank to incur certain losses also. That only in the said circumstances, the appellant has chosen to file applications to examine the appellant-Bank’s witness.

4. The learned Advocate for the 1st respondent Bank viz. South Indian Bank, contends that there is no provision either in the Act or in the rules framed under the RDDB&FI Act, 1993, enabling the person to examine-in-chief of its own witness and, therefore, the applications filed by the appellant is not at all sustainable.

5. The learned Advocate for the appellant has relied upon Sub-clause (2) of Section 22 of the Act, to support his submission, that this Tribunal for the purposes of discharging their functions under the Act, has got the same power as are vested in the Civil Court under the Civil Procedure Code (5 of 1908), while trying a suit, in respect of the following matters, namely—(a) summoning and enforcing the attendance of any person and examining him on oath (other sub-clauses are not necessary for the purpose of this case). It is, therefore, submitted that this Tribunal has got ample powers to summon any person or any witness to be present and for examination. Appellant also relied upon Rule 12(6) of the DRT (Procedure) Rules, 1993, which states: “The Tribunal may at any time for sufficient reason ordered, if any particular fact or facts shall be proved by affidavit, or that the affidavit—shall be read at the hearing, on such conditions as the Tribunal thinks reasonable. There is no denial as far as the provisions in Section 22(2) or Rule 12(6) of the DRT (Procedure) Rules. What all they say is that the Tribunal has got power for the purpose of discharging its functions to summon and enforce the attendance of any person and examining him on oath. Rule 12(6) permits a party to prove the existence of a fact or facts by filing of affidavit and if it is so, necessary affidavit of the said witness shall be read at the hearing. Neither sub-clause (2) of Section 22 or Rule 12(6) permit any party to examine his own witness in-chief-examination. However, the learned Advocate for the appellant relies upon the decision of the Hon’ble Supreme Court in the case of Union of India & Anr. v. Delhi High Court Bar Association & Ors.1 wherein certain observations were made in paras 22 and 23 stating that Rule 12(6) has got to be read harmoniously with the other provisions of the Act and rules and, therefore, the appellant is entitled to examine his own witness in-chief.

6. I have carefully gone through the decision rendered by the Hon’ble Supreme Court and what all it says is: “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 the Tribunal, that such a witness can be produced and it is necess