IN THE HIGH COURT OF CHHATTISGARH
Pritinker Diwaker, Sanjay K. Agrawal, JJ.
Kasim Ali – Appellant
Versus
State Bank of Indore – Respondent
Writ Appeal Nos. 230 and 231 of 2016
Decided On : 10-03-2017
For the Appellant :Kashif Shakeel, Advocate.
For the Respondent:Abhishek Sinha, Advocate
Headnote:
Constitution of India,1950 - Article 227 - Code of Civil Procedure,1908 - Section 100 - Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 - Section 2 (1) - Recovery of Debts Due To Banks And Financial Institutions Act, 1993 - Section 19 and 20 - Application for recovery of loan - Seeking examination of power of attorney - Seeking cross-examination - Appellants, who were petitioners in writ petitions, have preferred these writ appeals under Sub-section (1) of Section 2 of Chhattisgarh High Court stating inter alia that order passed by DRT as affirmed by DRAT and order of writ Court run contrary to well settled principles of law in this regard and appellants are entitled for examination of questioned documents and cross-examination, Manager, State Bank of Indore before DRT - Learned Counsel appearing for appellants, would submit that learned Single Judge has committed grave legal error in affirming order passed by DRT/DRAT and further committed grave error in not considering appellants case in right prospective, therefore appellants be granted full opportunity to get disputed documents examined by an expert and opportunity to cross-examine witness as provided under Act of and as such, order passed by learned Single Judge deserves to be set aside - Held, petitioners had allegedly filed written statement earlier wherein also they denied execution of power of attorney in favour of deceased/defendant No. 3 who was instrumental in obtaining loan from Bank - It is not a case that in their earlier written statement petitioner had admitted documents - However, to protract they would stated in subsequent written statement filed in year that they have not filed any written statement earlier - There is no whisper in pleading about filing of WP No - Banking transactions are conducted in accordance with law even though it is commercial in nature - Bank Officer is ordinarily not presumed to have thrown away public money by giving loan in a fraudulent manner - Finding recorded by the DRT duly affirmed by DRAT and reaffirmed by learned Writ Court, which is a finding of fact is based on material available on record and further considering jurisdiction of this Court in writ appeal and keeping in view principles of law laid down by Supreme Court in aforesaid judgments including judgment of Karnataka Planters Coffee Curing Work Private Limited (supra), findings of fact recorded concurrently by two authorities and writ petitions against that findings having been dismissed by learned writ Court, Court are not inclined to interfere with said findings which are finding of fact based on material available on record - Court deem it inexpedient and unnecessary to answer second question about maintainability of writ appeals - Court accordingly dismiss writ appeals.
Pritinker Diwaker, J.
The State Bank of Indore filed an application for recovery of loan against the appellants herein under section 19 of the Recovery of Debts Due To Banks And Financial Institutions Act, 1993 (hereinafter called as "Act of 1993"). In that proceedings, the appellants herein filed two interlocutory applications. One application seeking examination of power of attorney by the State Examiner of the questioned documents or by any other independent agency and second application seeking cross-examination of Mr. M.D. Sharma, Manager, State Bank of Indore, Green Park Branch, New Delhi to prove that power of attorney is forged. The said applications were rejected by the Debts Recovery Tribunal (hereinafter called as "DRT"), Jabalpur by order dated 6.3.2013. In the appeals filed by the appellants herein under Section 20 of the Act of 1993 before the Debts Recovery Appellate Tribunal (hereinafter called as ("DRAT") the appeals were dismissed affirming the order of the Debts Recovery Tribunal.
2. Feeling aggrieved and dissatisfied with the order of the DRT duly affirmed by the DRAT, the appellants herein filed the writ petitions being Writ Petition (C) Nos. 1802 of 2013 and 902 of 2013 questioning the order of the DRAT dated 1.5.2013 before this Court.
3. The Writ Court by its impugned order dated 16.2.2016 dismissed the writ petitions finding that order of the DRT duly affirmed in appeal by the DRAT is an interim order and writ Court recorded its findings in Para 11 of the impugned order stating that the order of DRT and DRAT do not warrant interference.
4. Questioning the legality and validity of the order passed by learned Single Judge in the writ petitions, the appellants, who were the petitioners in the writ petitions, have preferred these writ appeals under Sub-section (1) of Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (hereinafter called as "Act of 2006") stating inter alia that order passed by the DRT as affirmed by the DRAT and order of the writ Court run contrary to the well settled principles of law in this regard and the appellants are entitled for examination of the questioned documents and cross-examination of Mr. M.D. Sharma, Manager, State Bank of Indore before the DRT.
5. Mr. Kashif Shakeel, learned Counsel appearing for the appellants, would submit that learned Single Judge has committed grave legal error in affirming the order passed by the DRT/DRAT and further committed grave error in not considering the appellants' case in right prospective, therefore the appellants be granted full opportunity to get the disputed documents examined by an expert and opportunity to cross-examine the witness as provided under the Act of 1993 and as such, the order passed by learned Single Judge deserves to be set aside.
6. Mr. Abhishek Sinha, learned Counsel appearing for respondent No. 1, would submit that rejection of two applications by the DRT by an interim order has duly been affirmed by the DRAT and said finding recorded by the DRT and the DRAT is a finding of fact based on material available on record. He would further submit that the Writ Court has assigned sufficient and adequate reasons for upholding and re-affirming the order of the DRT and as such, finding of fact so recorded is not open to be reviewed in the writ appeal jurisdiction of this Court. Alternatively, he submits that learned Writ Court has exercised the jurisdiction under Article 227 of the Constitution of India and therefore, proviso to Sub-section (1) of Section 2 of the Act of 2006 would apply and as such, the writ appeals against the order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India are not maintainable and deserve to be dismissed.
7. We have heard learned Counsel appearing for the parties, considered their rival submissions made herein and also gone through the record with utmost circumspection.
8. Upon hearing two questions arise for consideration:
(i) Whether