M.A. No. 978 of 2007. Case: Canara Bank Vs Testeels Ltd. and Ors.. Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Case NumberM.A. No. 978 of 2007
Party NameCanara Bank Vs Testeels Ltd. and Ors.
JudgesS.S. Parkar, J. (Chairperson)
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rule 27; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 22
Judgement DateOctober 03, 2007
CourtMumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Judgment:

S.S. Parkar, J. (Chairperson)

  1. This appeal has been filed by the appellant bank/original applicant No. 2 as claim of the appellant bank for enforcement of the guarantee as against the defendant No. 3/respondent No. 3 was dismissed. The original suit was filed by the appellant bank along with the Central Bank of India against the respondents for recovery of debts in City Civil Court Ahmedabad. After establishment of the D.R.T. the suit was transferred to D.R.T., Ahmedabad. After hearing the D.R.T. decreed the claim of both the banks except that the suit filed by the appellant bank for enforcement of the guarantee executed by the respondent No. 3 only was dismissed on the ground that the deed of guarantee was not stamped. Hence, the present appeal.

  2. The case of the appellant bank is that if the document is not stamped or not properly stamped the D.R.T. ought to have impounded it and sent it for getting it properly stamped before the appropriate authority. In reply to the said contention on behalf of the respondents reliance is placed on the judgment of the Division Bench of the Andhra Pradesh High Court in the case of Kanukolanu Vimala v. S. Lakshmana Rao, reported in A.I.R. 1998 A.P. 338. In the said decision the Andhra Pradesh High Court has taken a view that the Court is not bound to send document for impounding. It is for the party filing the document to request the document to send it for impounding. It is the case of the appellant bank that when the matter was in the D.R.T., the appellant bank was not able to trace the original document of deed of guarantee. However, after filing of the appeal in this Tribunal the bank has traced the original document and therefore an application was made before this Tribunal in the present appeal on 16th May, 2005 praying that the original deed of guarantee may be allowed to be produced in the appeal.

  3. There are, no doubt, several lapses on the part of the appellant bank. Firstly, though the xerox copy of the deed of guarantee was produced before the D.R.T. there was no application filed by the bank to allow it to lead secondary evidence. Secondly, though only the xerox copy was produced before the D.R.T. it was sought to be produced as a certified copy which was certified to be the true copy by none other than the appellant bank itself. However, this escaped attention of the respondents as well as of the Presiding Officer and the copy which was produced was considered to be the...

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