Delhi High Court
Neera Singh vs Jm Financial Asset ... on 23 September, 2014
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6511/2014 & CM Nos. 15546-47/2014
NEERA SINGH ..... Petitioner
Through: Mr.Sachin Puri, Advocate with
Mr.Dheeraj Gupta, Advocate
versus
JM FINANCIAL ASSET RECONSTRUCTION COMPANY (P)
LTD. ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 23.09.2014
C.M No.15547/2014
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
W.P.(C) 6511/2014 & CM No.15546/2014
Neera Singh, who is defendant No.3 in the original proceedings has
filed the present writ petition impugning order dated 08.09.2014 passed by
the Debt Recovery Appellate Tribunal (DRAT, in short) in Misc. Appeal
No.335/2014. The impugned order upholds the order passed by Debt
Recovery Tribunal dated 14.08.2014 rejecting the petitioner's prayer for
cross examination of witnesses who have filed evidence by way of
affidavits.
2. The petitioner herein claims that she is former wife of Joel Waldman
and states that she is an Ex-Director of M/s Highland House (P) Ltd. The
said company is the principal borrower against whom proceedings for
recovery of Rs.7,65,47,109/- with interest etc. have been initiated. The
petitioner, Joel Waldman and three others have been impleaded as other
parties in the said proceedings. Prayer is for a joint and several decree.
3. Learned counsel for the petitioner submits that the petitioner had
written a letter dated 31.10.2006 to Indian Overseas Bank stating that the
Managing Director and her former husband, Joel Waldman had obtained her
signatures on some documents and had forged and fabricated many others.
Similar plea stands raised in the written statement and in the affidavit filed,
copy of which has been placed on record. In particular, petitioner has
challenged the guarantee for cash credit and other documents purportedly
executed on 02.09.2006 on the ground that she was out of India on the said
date. Similar challenge has been made regarding documents purportedly
executed on 13.10.05.
4. The impugned order dated 08.09.2014 passed by the DRAT records as
under:-
"As I understand that the plea raised by the appellant herein
is that her signatures, if any, which are forged, have been
obtained by her husband. The case set up by the appellant
was that her signatures were forged and fabricated on the
loan documents by her husband. In view of this, the
signatures being forged can only be proved through her
husband. If there is any need to cross-examine any witness it
would be her husband who is co-defendant. The counsel
states that the husband of the appellant is absconding and is
not available."
5. Learned counsel for the petitioner submits that P.K.Sharma, Senior
Manager of Indian Overseas Bank has deposed regarding his familiarity
with the signatures of the executants/borrowers/guarantor/mortgagor
because documents were executed in his presence. Similar assertion has
been made by Jagat Singh, Senior Manager of Indian Overseas Bank.
Therefore, cross examination of the said witnesses is required.
6. To consider the said contention, we have noted the reasoning given by
DRAT in the order dated 08.09.2014 and the order passed by Debt Recovery
Tribunal (DRT, for short) on 14.08.2014. The petitioner with her affidavit
has filed documents to show and support her contention that she had
resigned as a Director with effect from 02.12.2005 and Form No.32 was
filed with the Registrar of Companies on 23.01.2006. Further, copy of
relevant pages of her passport have been placed on record with her affidavit.
The petitioner's stand and stance is that some of the documents relied upon
by the respondent No.1 in the recovery proceedings bear her signatures but
these were wrongly or fraudulently obtained by her former husband.
Regarding some other documents she claims that her signatures have been
forged and fabricated. She has accordingly denied having executed the said
documents. She relies upon arrival and departure entries on her passport.
7. Cross examination of officers of Indian Overseas Bank would be a
formality and an unnecessary exercise on the first aspect. The two officers
can neither depose on the aspect of relationship between the petitioner and
Joel Waldman nor on aspect whether the petitioner was deceived and
defrauded. Further, the petitioner has filed her passport to establish and
show that she was not in India on the specified dates. She has disputed her
signatures on some documents and an application praying for filing of
affidavit by the handwriting expert is pending. This assertion of the
petitioner will require examination, and has to be answered by the DRT.
That apart, the fact is that the petitioner does not dispute that before
02.12.2005 she was a Director of the principal borrower along with her
husband. Several aspects including earlier documents stated to have been
executed by the petitioner and other surrounding facts will require
elucidation and consideration.
8. Grant of opportunity to cross examine a witness is the discretion of
the DRT which has to be exercised with care and caution. In the present
case, it would be the assertion on oath by the petitioner and contradictory
affirmation by the two witnesses. Primarily the question will have to be
decided with reference to the surrounding and attending circumstances.
The Supreme Court in Fiza Developers & Inter-Trade P. Ltd. Vs. AMCI(I)
Pvt. Ltd. and Anr., [2009] 17 SCC 796 referring to the summary nature of
the proceedings, observed that the defendant should be given opportunity
and right to file his objection or written statement. Therefore, the DRT
should permits the parties to file affidavit(s) in proof of their respective
stands and if necessary, permit cross examination by the other side. As noted
above, application for filing of affidavit by handwriting expert is pending
consideration before the DRT and is yet to be adjudicated. In case of doubt
or debate, upon and at the time of hearing arguments, the DRT can pass
appropriate order at any time before passing the final order. Exercise of said
power is within the domain of the Presiding Officer.
9. We clarify that we have not expressed any opinion on the merits of
the case and on the issue whether signatures of the petitioner on the
documents were obtained fraudulently or otherwise, or whether any of the
signatures are forged and fabricated, as this is a question which will be
determined and decided by the DRT after examining the full facts.
10. The writ petition is accordingly disposed of.
SANJIV KHANNA, J
V. KAMESWAR RAO, J
SEPTEMBER 23, 2014/km
