Delhi High Court
M/S Chunnu Fashions vs Edelweiss Asset Reconstruction ... on 28 May, 2019
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 28.05.2019
% W.P.(C.) No. 6090/2019
M/s CHUNNU FASHIONS ..... Petitioner
Through: Mr. Anshuj Dhingra and Ms. Nikita
Khanna, Advocates.
versus
EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED
& ORS. .....Respondents
Through: Mr. R.P.Agrawal and Ms. Sonali
Rastogi, Advocates for R-1.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
VIPIN SANGHI, J. (ORAL)
CM No.26237/2019
Exemption allowed subject to just exceptions.
The application stands disposed of.
W.P.(C.) No. 6090/2019 & CM No.26236/2019
1. The petitioner has preferred this present petition to assail the order
dated 15.02.2019 passed by the Debts Recovery Appellate Tribunal, Delhi.
The petitioner also seeks a direction that his application i.e. I.A.
No.1576/2017 filed in OA No.01/2013 before the DRT-II, be allowed and
respondent No.1 be directed to place the relevant documents on record for
the just and proper adjudication of the original application.
2. The Indian Bank instituted the original application under Section 19
of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993
against the defendants, including the petitioner herein. During pendency of
the said original application i.e. OA No.01/2013, the respondent No.1 herein
has taken over the debts due to the Indian Bank and, consequently, the
respondent No.1 stands substituted in the said proceedings.
3. Petitioner moved the aforesaid application i.e. I.A. No.1576/2017 to
require the respondents to place on record statement of accounts relating to
the various loan facilities availed of by the borrower to justify its claim.
That application was rejected by the Tribunal and the petitioner's plea
before the DRAT has also been rejected.
4. The submission of the learned counsel for the petitioner is that though
it was claimed in the original application by the claimant bank that it was
placing on record duly certified statement of accounts as per Bankers
Evidence Act in respect of all the facilities, the said statement of accounts as
placed on record by the claimant bank, was a current statement of account
and not separate statement of accounts in respect of each of the facilities
availed of by the borrower. Consequently, from 2015 onwards, the petitioner
has been requesting the respondent bank to place on record separate
statement of accounts in respect of each of the facilities extended to the
borrower. However, the claimant bank has not complied with the said
request and the petitioner's application has also been rejected by the DRT,
as well as the DRAT.
5. Counsel for the petitioner submits that on account of failure of the
respondent/claimant to place on record the several statements of accounts,
the Tribunal would be entitled to draw adverse inference against the
respondent/claimant, but mere drawing of adverse inference against the
respondent, in these circumstances, would not be sufficient. In this regard,
reliance is placed on the decision of the Madras High Court in the case of
T.P. Vishnu Kumar v. Canara Bank and Ors., in W.P. (C) 14428 to
14430/2008, decided on 07.11.2008.
6. Learned counsel for the respondent No.1 has appeared on advance
notice and advanced his submissions.
7. We have heard the submissions of learned counsels.
8. The submission of learned counsel for the respondent No.1 is that the
petitioner has been moving one application after another before the DRT
only to delay the disposal of the original application, and the matter has been
hanging fire for the last two years at the final hearing stage. This aspect has
been taken note of by the DRT in order dated 21.04.2018 in para 7.
9. Learned counsel further submits respondent No.1 has filed whatever
statements of accounts are in its possession, and they are sufficient to
support its claim before the Tribunal.
10. We have heard the submissions of learned counsels and we do not
find any merit in the present petition.
11. Since the respondent no.1 is pursuing its claim in the original
application, it is for the respondent no.1 to make good its claim before the
DRT. Respondent no.1 has placed on record its duly certified statement of
accounts as Annexure A-12. It would be for the respondent no.1 to justify
its claim on the basis of the statement of accounts placed on record by it. It
is for the petitioner to dispute the same at the hearing of the original
application and point out discrepancies and shortcomings in the same before
the Tribunal. The decision of the Madras High Court relied upon by the
petitioner in our considered view is not applicable in the facts of the present
case since, in that case, there were communications exchanged between the
bank and the ECGC which were relied upon by the petitioner to deny its
liability. The petitioner desired to establish its defence on the basis of the
said correspondence. It is in that light, that the Madras High Court held that
mere drawing of adverse inference would not be sufficient, and the bank was
directed to place on record the said correspondence.
12. The respondent No.1 has taken the stand that it has placed on record
statement of accounts whatever were in its possession. We, therefore,
dismiss this petition and leave it to the petitioner to argue before the
Tribunal that the statement of accounts relied upon by the respondent-
claimant do not justify the claim. The Tribunal shall consider any such plea
while passing the final order.
13. Considering the fact that the matter has been hanging fire at the final
hearing for the last two years, we direct the Tribunal to hear the original
application without entertaining any further interlocutory applications.
14. Petition stands dismissed in the above terms
VIPIN SANGHI, J.
RAJNISH BHATNAGAR, J.
MAY 28, 2019
ib/jitender
