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2000 Supreme(MP) 987
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR)
Bhawani Singh, A.K. Mishra, J.
M/s Kishorilal Loomba and Sons and others
Vs.
Debts Recovery Tribunal, Jabalpur and another
Writ Petition No. 5262/2000
Decided On: 18.10.2000
For Appellant/Petitioner/Plaintiff: Shri Kishore Shrivastava, Adv.
The purpose of the Act and the scheme should not be made redundant, and a harmonious and purposeful meaning has to be assigned to the provisions of the Act, Rules, and Regulations to achieve the basic purpose of the legislation.
Headnote:
Debts Recovery Tribunal - Regulations 31 and 32 - Section 22 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 - Rule 12(6) of the Debts Recovery Tribunal (Procedure) Rules, 1994 - Summary: The court discussed the conflict between Regulations 31 and 32 of the Regulations of Practice 1998 and Section 22 of the Act, as well as Rule 12(6) of the Rules. It emphasized that the purpose of the Act and the scheme should not be made redundant, and a harmonious and purposeful meaning must be assigned to the provisions of the Act, Rules, and Regulations to achieve the basic purpose of the legislation.
Fact of the Case:
The writ petition challenged the rejection of the application preferred under Proviso to sub-rule (6) of Rule 12 of the Debts Recovery Tribunal (Procedure) Rules, 1994. The petitioners contended that the procedure followed by the Tribunal did not envisage arriving at justice between the parties and that the provisions of Regulations 31 and 32 deserve to be declared ultra vires of the provisions of the Act.
Finding of the Court:
The court dismissed the petition, stating that the purpose of the Act and the scheme should not be made redundant, and a harmonious and purposeful meaning has to be assigned to the provisions of the Act, Rules, and Regulations to achieve the basic purpose of the legislation.
Issues: Conflict between Regulations 31 and 32 of the Regulations of Practice 1998 and Section 22 of the Act, as well as Rule 12(6) of the Rules.
Ratio Decidendi: The purpose of the Act and the scheme should not be made redundant, and a harmonious and purposeful meaning has to be assigned to the provisions of the Act, Rules, and Regulations to achieve the basic purpose of the legislation.
Final Decision: The petition was dismissed.
Bhawani Singh, C.J.
1. This writ petition is directed against order of Debts Recovery Tribunal, Jabalpur dated 19-7-2000 (Annexure P-4) passed in T.A. No. 36 of 1998 by which the Tribunal has rejected the application of petitioners preferred under Proviso to sub-rule (6) of Rule 12 of the Debts Recovery Tribunal (Procedure) Rules, 1994.
2. Civil Suit No. 8-A of 1996 for recovery of Rs. 78,00,822.75 p. with interest pendente the at the future rate of 18.75% per annum with quarterly rest was instituted by the Bank of India (respondent No. 2 hereafter) against the petitioners in the Court of 1st Additional District Judge, Raisen. Following the constitution of Debts Recovery Tribunal, Jabalpur under Section 31 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereafter the Act), the suit was transferred to the Tribunal before evidence could be recorded by the Civil Court. After receipt of record, before issuance of summons to the defendants the Tribunal received evidence in the form of affidavit on behalf of the Bank. This was done behind the back of the petitioners.
3. After receiving summons, the petitioners entered appearance and filed reply to the T.A. They also filed application under Second Proviso to sub-rule (6) of Rule 12 of the DRT (Procedure) Rules, 1994 praying that since they were not accepting the contents of the affidavit, the same be ignored and not read into evidence. This prayer the Tribunal has rejected holding that provisions of the Act and the Rules provide for taking evidence by way of affidavits.
4. Section 22 of the Act permits the Tribunal/Appellate Tribunal to regulate their own procedure. In exercise of this power, regulations known as Debts Recovery Tribunals Regulation of Practice, 1993, have been framed. Chapter XI of these regulations deals with examination of witnesses in attendance for cross-examination. Regulations 31 and 32 provide that :--
"31. Examination of witnesses and the issue of Commissions-
(a) Evidence shall be on affidavit.
(b) Provisions of Section 22 sub-section (2) of the Act and the relevant provisions of the Code of Civil Procedure shall mutatis-mutandis apply in the matters of summoning and enforcing attendance of any person as witness and for examining him on oath and issuing a commission for the examination of such witnesses.
32. Attendance of Deponent for cross-examination-
The Tribunal may, on the application of either party assigning reasons and after hearing, order the attendance of deponent who has sworn an affidavit for the cross-examination or may reject such application."
According to these regulations, evidence before the Tribunal is by affidavits and the Tribunal has been authorised to call the deponent for cross-examination or reject such a prayer if ever made. It is stated that Regulations are subject to the provisions of the Act and the Rules including Section 22 (1) and (2) of the Act and Rule 12 (6).
5. Contention of the petitioner is that Regulations 31 and 32 of the Regulations are in excess of the authority conferred by Section 22(1) and (2) of the Act. They are in conflict with Rule 12 (6), particularly to Proviso to sub-rule (6) of Rule 12. According to sub-section (2) of Section 22, authority to refuse cross-examination of a person swearing affidavit and to direct evidence by affidavit only is not only against the principles of natural justice hut in excess of and in conflict with sub-section (2) of Section 22 of the Act also. Sub-section (2) of Section 22 vests in the Tribunal powers of a Civil Court under Civil Procedure Code, 1908 for purposes mentioned therein which include direction to the Court not to receive evidence on affidavit and if attendance of the deponent for cross-examination is desired by a party, allow the same. At the same time, sub-rule (6) of Rule 12 enjoins upon the Tribunal a duty to record reasons if it desires a fact to be proved by affidavit or that the affidavit of any witness be read as evidence. Proviso to su
