Radhey Shyam vs Punjab & Sind Bank & Ors.
2014 Latest Caselaw 5854 Del

$~18.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WRIT PETITION (CIVIL) NO. 7854/2014

                                       Date of decision: 17th November, 2014

        RADHEY SHYAM                               ..... Petitioner
                    Through Mr. Sanjay Jain & Mr. Ashok Jain,
                    Advocates.

                              versus

        PUNJAB & SIND BANK & ORS.                          ..... Respondents

Through Nemo.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE V. KAMESWAR RAO

SANJIV KHANNA, J. (ORAL):

The challenge is to the order dated 20th August, 2014 passed by the

Debt Recovery Appellate Tribunal (DRAT, for short) affirming the finding

recorded by the Debt Recovery Tribunal (DRT, for short) in OA No.

15/2005 and SA No. 40/2008 vide order dated 22nd April, 2013.

2. Punjab and Sind Bank had initiated recovery proceedings in OA No.

15/2005 before the DRT against M/s Leather Makers, sole proprietorship

of one Arvind Kumar, Seema wife of Arvind Kumar as a guarantor and the

petitioner herein-Radhey Shyam. Radhey Shyam, it was asserted had

created an equitable mortgage by deposit of title deed of property No. 681,

Pocket-II, Paschim Puri, New Delhi for the credit facilities granted to

Arvind Kumar/M/s Leather Makers. The said mortgage was confirmed by

letter dated 2nd February, 2002. The total amount due and payable as

claimed by the bank in the original application was Rs.25,45,042/-.

3. Arvind Kumar and Seema did not appear and contest the recovery

proceedings, but the petitioner herein contested and claimed that he had not

deposited the title deeds creating an equitable mortgage. He denied his

signatures on the letter dated 2nd February, 2002.

4. The defence set up by the petitioner in the written statement was that

he had taken a loan in October 1998 from the Indian Overseas Bank, Janak

Puri branch, New Delhi with the help of one of his relatives Rajpal, who

also knew the said Arvind Kumar. The petitioner had deposited the

original title deed of the property with Indian Overseas Bank, Janak Puri

branch. The petitioner relied upon a private criminal complaint filed by

him in the year 2004 against Rajpal, Arvind Kumar, Seema and the

Manager of Indian Overseas Bank and the Manager of Punjab and Sind

Bank making similar allegations. The Manager of the two banks, were not

identified by name and other details. In the complaint proceedings, pre-

summoning evidence was recorded and summons were issued by the

Metropolitan Magistrate by order dated 12th February, 2008. The said

order records that the complainant has levelled allegations regarding

cheating, forgery, criminal breach of trust and criminal conspiracy and the

Metropolitan Magistrate did not have any option but to accept the version

of the complainant, i.e., the petitioner and his witnesses.

5. Learned counsel for the petitioner before us has submitted that the

DRAT had erred in not referring to and relying upon the statement of

witnesses recorded at the pre-summoning stage before the Metropolitan

Magistrate. The DRAT has rejected and not relied the said statements on

the ground that the evidence should have been led before the DRT. The

aforesaid finding of the DRAT is correct and statement of witnesses

recorded in another and different proceedings could not have been read and

taken on record in the proceedings before the DRT. More so, as at pre-

summoning stage, there is no right of cross-examination. These statements

could have been confronted to the deponents, when their statements were

being recorded, or used in the extraordinary circumstances like death etc.,

subject to satisfaction of certain conditions.

6. Nevertheless, to examine the contention raised and rule out any

possibility of injustice, we have gone through the said statements. During

the course of pre-summoning evidence, the petitioner had deposed as CW-

4 and evidence of one retired Colonel V.K. Sharma was recorded as CW-2.

CW-2 had deposed accepting that he had a bank account in Indian

Overseas Bank, Janak Puri branch since 1996. On 14th October, 1998, he

had issued a cheque bearing No. 347629 in favour of Arvind Kumar for

Rs.1 lac. He, however, did not remember whether the said cheque was a

bearer cheque or an account payee cheque. He had given the cheque

amount to Arvind Kumar, who was facing financial crises. He claimed that

he had never issued any cheque in favour of the petitioner herein.

However, when the original cheque was shown to CW-2, he asserted that

the date of the cheque, the cheque amount in figures as well as in words

were in his handwriting. He had also crossed the cheque himself.

However, the name of Radhey Shyam written on the cheque was not in his

handwriting. He had handed over the cheque to Arvind Kumar. We do not

think the aforesaid statement recorded at the pre-summoning stage in any

way support or helps the petitioner to show and establish that the case set

up by him is correct.

7. The DRAT and the DRT have rightly noticed the fact that the

petitioner did not have the original title deed with him. He claimed that he

had entrusted the document to Rajpal and Arvind Kumar in 1998. The

reason the petitioner states was the loan of Rs.1 lac by way of cheque and

another amount of Rs.1 lac given to him cash by Indian Overseas Bank.

The said narrative is imaginary and ingenious. It is not the case of the

petitioner that he had made any payment to the Indian Overseas Bank

towards repayment of alleged loan taken by him in October, 1998 till the

OA was filed in 2005 or till 2004 when criminal complaint was filed by

him before the Metropolitan Magistrate. The statement of retired Colonel

V.K. Sharma (CW-2) would show that he had made a payment of Rs.1 lac

at the behest of Arvind Kumar by way of a cheque. It was his personal

cheque. It would not show or prove and establish that Indian Overseas

Bank had granted any loan to the petitioner herein. Y.K. Sharma (CW-3),

Assistant Manager posted with Indian Overseas Bank, Janak Puri branch in

the pre-summoning evidence had produced relevant documents relating to

encashment of the cheque issued by CW-2. He had deposed that the said

bank did not have any account in the name of Radhey Shyam or M/s

Leather Makers with them. Thus, grant of loan by the Indian Overseas

Bank, was not proved and established.

8. Learned counsel for the petitioner has drawn our attention to the

letter dated 2nd February, 2002 and that a plot of land was mortgaged. The

property in question it is submitted is a flat and not a plot. The

document/letter dated 2nd February, 2002 (Annexure P-12) to the present

writ petition, affirming deposit of title deed, the property mortgaged stands

described as plot No. 681 in Pocket-2, Paschim Puri, New Delhi. The

photocopy of the title deed, i.e., conveyance deed executed by Delhi

Development Authority in favour of the petitioner is dated 5 th June, 1998

and records particulars of the property conveyed as 681, Pocket-II, Janta

Flat, Paschim Puri, New Delhi. In these circumstances, we do not think the

description of the flat as a plot in schedule A in the letter dated 2nd

February, 2002 would make any difference. It is noticed that the

document dated 2nd February, 2002 bears signature of the petitioner. The

petitioner had disputed his signature but the said defence has not been

accepted by the DRT and the DRAT. The petitioner has also placed on

record other letters purportedly signed by him and available in the records

of the Punjab and Sind Bank.

9. The finding of the DRAT on the said aspects are factual in nature.

We do not think that there are sufficient and good grounds to hold that the

said findings require interference in exercise of writ jurisdiction under

Article 226 read with Article 227 of the Constitution of India.

10. The writ petition is thus dismissed.

11. Learned counsel for the petitioner states that they will like to avail

benefit of amnesty scheme, which has been introduced by Punjab and Sind

Bank. In case any application is filed, the same may be considered as per

law/scheme. We say nothing in this regard.

SANJIV KHANNA, J

V. KAMESWAR RAO, J NOVEMBER 17, 2014 VKR/NA