2008(1) Bankmann 514 (DRT)
DEBT RECOVERY APPELLATE TRIBUNAL, MUMBAI
S.S. Parkar, Chairperson
Canara Bank —Appellant
versus
Testeels Ltd. and Others —Respondents
Appeal No. 145/2004 with M.A. No. 978/2007
Decided on 3.10.2007

IMPORTANT POINT
Under the provisions of the R.D.B. Act the Tribunal has to see that the procedural law is substantially complied with and the principles of natural justice are not flouted.

Headnote:Recovery of Debts Due to Banks and Financial Institutions Act, 1993—Section 22—Civil Procedure Code, 1908—Order 41 Rule 27—Recovery suit by appellant bank decreed by DRT but for enforcement of guarantee executed by respondent No. 3 was dismissed on ground that deed of guarantee was not stamped—Appeal—Zerox copy of deed of guarantee was filed and it did not bear adhesive stamp nor it was typed on non-judicial stamp paper—Application before appellate tribunal praying original deed of guarantee to be taken on record in appeal—No attempt was made to make out a case that inspite of due diligence such evidence or original document could not be filed—Document showed that adhesive stamp was affixed on a page where Hindi version of document appeared which was neither filed in nor signed—Zerox copy filed before DRT was English version where blanks were filled and signature of defendant No. 3 were obtained but no adhesive stamp was affixed—Matter needed to be remanded to DRT to examine the document by evidence opportunity to both parties.

       Held: Under the provisions of the R.D.B. Act the Tribunal has to see that the procedural law is substantially complied with and the principles of natural justice are not flouted. Section 22 of the R.D.B. Act specifically provides that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided by the principles of natural justice. The appellant bank’s case is that it was not able to trace the original document i.e. deed of guarantee which was executed by the respondent No.3 and therefore the zerox copy was produced which was certified to be a true copy by the appellant bank. The original document was traced by the appellant bank during the pendency of the appeal before this Tribunal and after it was traced an application was filed by the appellant bank to allow it to produce the original deed of guarantee which was produced along with the application dated 16.5.2005. Perusal of the said document also shows that the zerox copy which was produced before the D.R.T. was found to be not stamped because the adhesive stamp has .been affixed on a page where Hindi version of the said document appears which was neither filled in nor signed. In the D.R.T. the copy of English version of the said document was filed wherein the blanks were filled and signatures of the respondent No.3 were obtained on which no adhesive stamp was affixed and therefore the D.R.T. held that the deed of guarantee was without the requisite stamp.

       In this respect, the appellant bank will have to lead evidence with regard to the deed of guarantee allegedly executed by the respondent No. 3 and secondly on the point whether the adhesive stamp affixed on Hindi version of the deed of guarantee was for the purpose of stamping of guarantee allegedly executed by the respondent No.3 in English version. For that purpose it would be desirable to remand the matter back to the D.R.T. where the parties can lead their respective evidence by filing affidavits of evidence. The appellant bank is not making out any new case. It had already relied on the deed of guarantee by producing zerox copy thereof instead of the original.

       In my view, it would not be proper or advisable to consider all the above aspects at the appellate stage because, as it is, both the parties will have to be given opportunity to lead their respective evidence in respect of the deed of guarantee sought to be produced by the appellant bank. The learned Advocate for the bank also requests for remanding the matter to the D.R.T. to enable the bank to lead proper evidence in the matter.

       In the result, the appeal and the Misc. Application No. 978/2007 are allowed. The order of the D.R.T. dismissing the claim of the appellant bank as regards enforcement of the guarantee against the respondent No. 3 is set aside and the matter is remanded to the D.R.T. to decide the question about the claim of the bank for enforcement of the guarantee against the respondent No. 3 afresh in accordance with law on the basis of the original deed produced in this appeal. (Paras 10 to 13)

       Result: Appeal allowed partly.