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C.N. Enterprise Vs. Dena Bank - Court Judgment

LegalCrystal Citation
CourtDRAT Allahabad
Decided On
Judge
Reported inII(2006)BC189
AppellantC.N. Enterprise
RespondentDena Bank
Excerpt:
.....the application made by the defendant-appellants on 25th april, 2005 seeking permission for cross-examination of the bank witnesses has been rejected.2. the respondent-bank had filed the original application before the drt. jabalpur for recovery of rs. 12,04,5567- against the defendant-appellants. on receipt of notice by the appellants they filed reply to the memo of appeal and raised various questions on limitation, legality of the mortgage and towards maintainability of the original application. they had also filed an application for considering the maintainability which was once decided in favour of the appellants but on appeal the said dismissal order of the original application was set aside by this appellate tribunal. then the appellants filed the application for.....
Judgment:
1. This appeal has been preferred against the order dated 24th May, 2005 passed by the learned Presiding Officer, DRT, Jabalpur in O. A.No. 47/2002, whereby and whereunder the application made by the defendant-appellants on 25th April, 2005 seeking permission for cross-examination of the Bank witnesses has been rejected.

2. The respondent-Bank had filed the original application before the DRT. Jabalpur for recovery of Rs. 12,04,5567- against the defendant-appellants. On receipt of notice by the appellants they filed reply to the memo of appeal and raised various questions on limitation, legality of the mortgage and towards maintainability of the original application. They had also filed an application for considering the maintainability which was once decided in favour of the appellants but on appeal the said dismissal order of the original application was set aside by this Appellate Tribunal. Then the appellants filed the application for cross-examination of the witnesses of the Bank on the ground enumerated in their application itself. The first ground was that the loans granted to the appellants have been recalled by the Bank on 19th November, 1998 and the original application was filed in the month of February, 2002 and hence the original application is barred by limitation as not being filed within three years. According to the Bank there was acknowledgement of the dues by the appellant on later date, which have been denied by the appellants. The second point raised is that the defendant No. 2 had no capacity to give in mortgage of the property in favour of the Bank and as such there was no legal mortgage in favour of the Bank and to clarify those points cross-examination was very much necessary as alleged in the petition itself. The said application of the appellants has been vehemently objected to from the side of the respondent-Dena Bank, then the matter was heard in presence of both the parties and then by the impugned order the prayer of cross-examination has been rejected.

3. Before this Court Mr. V.D. Chauhan appearing for and on behalf of the appellants has argued strenuously that to clarify the points involved as raised from the side of the appellants, cross-examination is a must. He has also raised a point that after recalling of the loan account on 19th November, 1998 the account became NPA and as such it cannot carry agreed rate of interest henceforth.

4. Mr. R.L. Arora, appearing for and on behalf of the respondent-Bank submitted that the questions raised are legal questions and no question of fact, which requires cross-examination and as such rejection by the learned Tribunal is proper and justified.

5. In the light of the submissions made by the learned Counsel for both the parties and also on the principle of cross-examination as observed by the Apex Court in the Delhi Bar Association case, I find from the records that the questions involved as raised from the side of the appellant were pure questions of law. If after 19th November, 1998 no other acknowledgement is there and the O.A. was filed beyond the period of three years, then there might be bar coming under the Limitation Act (Article 36) regarding personal liability of the defendants, but the O.A. has been filed involving mortgage decree also. In that way, the period is 12 years. These are all questions of law and nothing is there to be clarified by cross-examination. So on this count rejection of prayer of cross-examination is proper and justified.

6. Regarding validity of the mortgage and capacity of the defendant No.2 as raised from the side of the appellant is also a question of law.

Whether the order of the District Judge is binding on defendant No. 2 regarding his capacitance/authority is purely a question of law and not a mixed question of fact and law. In that way also, rejection of prayer of cross-examination in this count is proper and justified. I do not find that the learned Tribunal has committed any error in rejecting the prayer of cross-examination rather the same is proper, legal and justified in the circumstances of the present case, 7. In the result, the appeal is rejected having no force. The stay order passed on 17.8.2005 is hereby recalled.


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