T.A. 87 of 2002. Case: Bank of India Vs Haribox Sawalaram and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | T.A. 87 of 2002 |
| Counsel | For Appellant: S.M. Basu, Advs. and For Respondents: D. Basu Roy, Adv. |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 19 and 22(2) |
| Citation | I (2004) BC 85 |
| Judgement Date | July 09, 2002 |
| Court | Kolkatta Debt Recovery Tribunals |
Order:
D.C. Thakur, Presiding Officer
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Mr. S.M. Basu, the learned Advocate appears for the applicant Bank, whereas neither of the Respondent Nos. 1 to 5 as well as the learned Advocate appointed as the guardian ad-litem for the minor respondent Nos. 6 to 8 have appeared this day like the previous occasion, though each of them has been already served with the notice of transfer by the Registry of this Tribunal.
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Before advancing the arguments, the learned Advocate for the applicant Bank has submitted the Notes of Arguments and the Statement of Accounts along with a host of documents on which the applicant Bank intends to rely for achieving success in respect of its application filed on April 19, 1985 before the learned Transferring Tribunal. Those have been accepted and have been kept with the record.
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The applicant Bank instituted the present TA 87 of 2002 in the year 1985 by way of making an application under Sub-section (1) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1993), after impleading eight respondents for a certificate or for an order for payment of Rs. 91,86,054.05p. with interest from April 5, 1995 till realisation at the rate of 18.25% per annum with quarterly rest by those respondents jointly and severally to itself and other reliefs.
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Thereafter, on April 27, 1995, the respondent Nos. 1 to 5 made their appearances through one learned Advocate named Mr. Swapan Kr. Paul.
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On August 2, 1995, Mr. D. Basu Roy, the learned Advocate was appointed by an order No. 6 made that day the guardian ad-litem by the learned Transferring Tribunal, and the said learned Advocate cum the guardian-ad-litem for the minor respondent Nos. 6, 7 and 8, was directed to make and file one written statement. And the said learned Advocate did comply with the said order.
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After a lapse of near about three years, the other respondents, named respondent Nos. 1 to 5 filed one written replies cum written statements alongwith the several annexures thereto.
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Mention may be made of that on February 25, 1998, one written objection was filed, in a composite manner, to the three evidence on affidavits sworn respectively by Shri Sekhar Banerjee, Chandi Charan Dutta, Ranjan Chakraborty on behalf of the applicant Bank.
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Paragraph 21, Page 9 of the said written objection is worthwhile to be made mention of. The said paragraph, this Tribunal shall, later on, deal with.
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Not only that, on April 28, 1998, those three deponents were tendered by the applicant Bank for the cross-examination by all of those eight defendants. Out of such offered three PWs, Shri Sekhar Banerjee was partly crossed-examined by one learned Advocate, Mr. S.K. Auddy on behalf of those defendants. On April 28, the cross-examination of the said defendant was declined and the express decline to conduct cross-examination of the offered PW Nos. 2 and 3 was also found specifically taking place. The Order No. 24 made that day is to be specifically mentioned because by that order evidence on behalf of the applicant Bank has been ordered to be closed, after ascertaining the wish of the applicant Bank. The same may be said with the equal force and rigour so far as those respondents are concerned.
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Hence, after taking into consideration the orders made from time-to-time by the learned Transferring Tribunal, it may be legitimately inferred that the day's proceeding in the form of hearing of arguments cannot be said a proceeding being conducted ex parte; and thus closes the door for the application Section 22(2), Clause (g) of the said Act for either of those respondents.
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The respondent No. 1 started to operate in the year 1920 and the respondent No. 1 was founded by one late Haribox Goenka with a view to carrying on business of cotton cloth in Indian markets manufactured by the Indian Textile Mills.
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After the demise of the said Haribox Goenka, his son Sawalaram Goenka appeared in the scenario of the commercial world and carried on the said business of cotton cloth alongwith the grandson, Mahindra Kumar Goenka. Incidentally, the respondent No. 3, Shri Mahendra Kr. Goenka who is not only a partner of the respondent firm but is also a Karta of the Hindu Undivided Family, governed by the Mitakshara School of Hindu Laws. Such HUF consists of the...
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